K ALAGAR Vs. M I KUMARAN AND OTHDERS

JUDGEMENT

(1.) ORIGINAL Side Appeals in O.S.A.No,389 of 2001, 316 of 2002 and 115 of 2004 are filed under order XXXVI Rule 1 of O.S. Rules read with Sec. 15 of Letters Patent against the judgment and decree of this Court dated 27.2.2001 made in Tr.C.S.Nos.432 of 1997, 2113 of 1995 and Tr.C.S.No.1356 of 1995 respectively.) The ORIGINAL Side Appeals in O.S.A.No,389 of 2001, 316 of 2002 and 115 of 2004 are filed against the common judgment and decree dated 22.7.2001 made in Tr.C.S.No,432 of 1997, C.S.No,2113 of 1995 and C.S.No.1356 of 1995 respectively.

(2.) THE suit in Tr.C.S.Nos.432 of 1997 was originally filed as O.S.No,3922 of 1994 on the file of the City Civil Court, Madras by the appellant - K.Alagar against the respondents - M.I.Kumaran, M.K.Ramachandran and M.K.Janaki seeking for a permanent injunction restraining the them from cancelling the agreement dated 18.3.1993 or encumbering the suit property or dispossessing the plaintiff from the suit property. THE other suit in C.S.No,2113 of 1995 is also filed by the appellant - K.Alagar against the very same respondents for specific performance of the agreement dated 18.3.1993. THE suit in C.S.No.1356 of 1995 was filed by the respondents herein against the appellant - K.Alagar for a declaration declaring the appellant - K.Alagar has committed breach of the agreement dated 18.3.1993 and for direction directing K.Alagar to pay damages of Rs.5 lakhs together with subsequent interest at 24% per annum and for permanent injunction restraining K.Alagar from interfering with the respondents' peaceful possession and enjoyment of the suit property.

(3.) THE correctness of the above judgment is put in issue in these appeals by the plaintiff on the ground that the learned single Judge having found that the defendants did not even make any attempt to hand over the original documents to the plaintiff for inspecting the documents, ought to have held that it was only the defendants who committed breach of the terms of the agreement. THE judgment is not correct in holding that the defendants have committed breach of essential terms of the agreement. THE act of the plaintiff taking possession of the property, which is in accordance with the conditions of the agreement has been put against the plaintiff. THE agreement specifically provided about the right of the plaintiff to enter into the property, which factum has been totally lost sight of by the learned single Judge. Having found that the plaintiff was ready and willing to perform his part of the obligation under the agreement on the crucial date, yet, the relief of specific performance was denied. THE reasoning of the learned Judge that possession of the suit property by the plaintiff in the absence of any written instrument amount to unlawful and without permission of the defendants is erroneous on the face of the covenants contained in the agreement giving right to the plaintiff to enter into the suit property. THE factum that the defendants vacated the suit premises and occupied tenanted house for which the plaintiff has paid the advance and paying the rent, clinchingly prove that possession has been given to the plaintiff legally.