PANDURANGA RAO Vs. OSMAN KHAN SAHIB

JUDGEMENT

(1.) THE above appeal suit is directed against the judgment and decree dated 12.2.1985 made in O.S.No.141 of 1982 by the Court of Subordinate Judge, Salem, thereby dismissing the suit, filed by the appellant herein for specific performance of the contract, without costs.

(2.) THE facts and circumstances, as pleaded by the appellant/plaintiff in the plaint are that the suit schedule ?A? properties belonged to the mother of the defendants 1 to 6, viz., Majubi alias Khairoonkhathu, who died in 1977, leaving behind her the defendants 1 to 6 to succeed to her estate, since her husband had pre-deceased her; that in September, 1978, defendants 1 to 3, for themselves and authorised by defendants 4 and 5 their brothers and the 6th defendant-their sister, represented to the plaintiff to negotiate and sell the suit property and offered the same for sale to the plaintiff, further promising to evict the tenants and hand over vacant physical possession of the property at the time of executing the sale deed; that after negotiation, the price was settled at Rs.51,750 and that the defendants 1 to 3 executed an agreement of sale in favour of the plaintiff on 28.9.1978, after receiving an advance amount of Rs.5,000 from out of the sale price of Rs.51,750, further agreeing to execute the sale deed by all the heirs of Majubi alias Khairoonkhathu Bi (their mother) after receiving the balance sale consideration and to evict the tenants within five months from the date of agreement; that in spite of the plaintiff being ready and willing to perform his part of contract, defendants 1 to 3 adopted declaratory tactics; that on 19.2.1979, at the representation of the defendants 1 to 3, the time for performing the contract was extended till 28.8.1979 or till they got possession of the suit property and necessary endorsement was made on the back of the agreement, but all of a sudden, the second defendant issued a notice dated 8.10.1979 to the plaintiff returning thereby the sum of Rs.5,000 received as advance by defendants 1 to 3, by crossed cheque dated 8.10.1979.

(3.) THIS defendant would further allege that subsequent to the purchase of the suit property, he spent enormous amounts for the improvement of the same to the knowledge of the plaintiff, who is living in the same street; that since the defendants 1 to 3 had no authority to execute a sale deed in favour of the plaintiff on behalf of the defendants 4 to 6 and when the earnest money had also been promptly returned and the cheque issued to the said effect having not been returned by the plaintiff, though it is alleged on his part that he has not encashed it, the plaintiff becomes disentitled to seek for a specific performance on an agreement, which was neither legally entered into nor in force wherein the time was also considered to be the essence of the contract and hence this defendant would ultimately pray to dismiss the suit with costs.