Concurrent findings of Courts below not to be interfered unless found arbitrary or illegal.

(Appeal filed under Clause 15 of the Letters Patent against the judgment dated 14.12.1999 in A.S.No.600 of 1987 passed by the learned single Judge.)

P.K. Misra, J.

Defendant is the appellant against a confirming decision of the learned single Judge in A.S.No.600 of 1987.

2. The plaintiff has filed the suit for specific performance of contract to execute the sale deed in respect of 1 acre 30 cents in R.S.No.174/5 in Uthangudi Village within Madurai District.

3. The plaintiff’s case is as follows :-

The defendant had purchased R.S.No.174/4 measuring 60 cents and 174/5 measuring 1 acre 30 cents in Uthangudi village. The defendant intended to purchase another 4 acres 15 cents of land adjacent to the aforesaid land and had paid advance for the said property. The defendant required further funds to complete such transaction and contacted the plaintiff, who was his friend. The defendant offered to sell 1 acre 30 cents either out of land bearing R.S.No.174/5 or an equal extent of 1 acre 30 cents out of 4 acres 15 cents, which the defendant intended to purchase, for a total consideration of Rs.1,00,000/-. On the basis of the aforesaid request of the defendant, the plaintiff had paid the entire sale consideration of Rs.1 lakh by cheque dated 10.10.1983 and the defendant had encashed the said cheque. The defendant had represented that he would purchase 4 acres and 15 cents within one or two months and he would execute the sale deed in favour of the plaintiff within a period of three months. The defendant executed an agreement of sale in favour of the plaintiff on 10.10.1983. The plaintiff subsequently learnt that the defendant’s proposal to purchase 4 acres 15 cents did not materialise, and, therefore, the plaintiff requested the defendant to execute the sale deed in respect of R.S.No.174/5 measuring 1 acre 30 cents, as the entire amount had already been paid. But, the defendant postponed the matter on some excuse or other and finally refused to execute the sale deed on 14.12.1983. The plaintiff issued lawyer’s notice on 16.12.1983 and also made a paper publication on 17.12.1983. The defendant sent a reply dated 27.12.1983 making false and frivolous allegations. The plaintiff issued a rejoinder to the notice issued by the plaintiff on 5.1.1984. Thereafter, the plaintiff filed the suit for specific performance of the contract. In the alternative, the plaintiff claimed that the amount of Rs.1,00,000/- should be paid along with interest at the rate of 18% from 10.10.1983 to 17.4.1984 and subsequent interest on Rs.1,00,000/- till the date of payment.

4. In the written statement, the defendant took a stand that he had not offered to sell 1 acre 30 cents either out of R.S.No.174/5 or an equal extent of 1 acre 30 cents out of 4 acres 15 cents, proposed to be purchased by him. It was pleaded by him that there was no agreement to sell any specified extent of land and it was indicated that :

“... The draft of the alleged agreement which was corrected by the plaintiff himself will clearly disclose that the rate per cent has to be arrived at only subsequently after talks. . . . No where in the plaint or in his notice the plaintiff had stated as to how the extent of 1 acre 30 cents was fixed or was there any negotiation. If so, at what rate per cent and whether there was any consensus. It is curious that even the alleged agreement is undated. In spite of this defendant’s reply notice the plaintiff has not chosen to give any basis as to the extent viz., 1 acre 30 cents against which he seeks specific performance.”

In the written statement, the defendant also took a specific stand :

“... In fact on 15.12.83 the plaintiff came to the defendant’s shop premises in the upstairs with a transistor with tape recorder in his hand. The defendant himself stated that he intended to have the talks recorded with the aid of the tape recorded and further told the defendant that he may also have the talks tape recorded if he feels necessary. The defendant who was