A SURAMMA Vs. P KOMALO

JUDGEMENT

(1.) This Second Appeal arises out of the judgment and decree passed by the Additional District Judge, Srikakulam, in A.S.No.79/1985, confirming the judgment and decree for specific performance and possession passed by the Subordinate Judge, Sompeta in O.S.No.86/83, dated 23-8-1985.

(2.) The facts giving rise to this appeal, in brief, are that, on 15-2-1977, the first defendant had entered into an agreement with the plaintiff to sell the suit land at the rate of Rs.16/- per cent and had received an advance of Rs.1,500/- on the same day. It was agreed between them that the sale deed would be executed within two months therefrom and in the meantime the land would be measured to ascertain the actual consideration to be paid by the plaintiff to the first defendant before the Sub-Registrar at the time of registration of the sale deed. The possession remained with the first defendant. The plaintiff laid a suit for specific performance of the contract and possession alleging that he approached the first defendant many times to get the land measured and to get the sale deed executed and registered after taking the balance amount of consideration, but he evaded the same on some pretext or the other. The first defendant entered into an agreement to sell the suit land to the second defendant whereupon the plaintiff sent a registered notice on 2-1-1978 to the first and the second defendants. The first defendant evaded receipt of the notice, but notice was served on the second defendant but he did not comply or reply the same. The plaintiff arranged the balance amount of consideration and had requested the first defendant to take the balance amount of consideration and get the suit land measured and execute the sale deed, but as the first defendant had not done so, he was entitled to obtain a decree for specific performance of the contract as also a decree for possession of the suit land. During the pendency of the suit, the first defendant had sold the suit land to the third and the fourth defendants and had also delivered the possession of the suit land to them. The first defendant through his written statement denied the claim of the plaintiff alleging that time was the essence of the contract, but the plaintiff was not ready with money and he could not pay the balance amount of consideration to him in spite of demands and, therefore, as per the terms of the agreement, the earnest money of Rs.1,500/- was forfeited and he had agreed to sell the suit land to the second defendant and later sold it to the third and the fourth defendants through a registered sale deed and had delivered the possession of the suit land to them. The other defendants have taken almost similar pleas as have been taken by the first defendant.

(3.) The trial Court, on assessment of the evidence on record, found that the plaintiff was ready and willing to perform his part of the contract, but the first defendant had committed breach of the contract and that the other defendants had knowledge about the agreement of sale and, therefore, they were bound by the agreement. Holding so, the trial Court decreed the suit as prayed for.