Second appeal treated as first appeal by the High Court on the request made by counsels of both parties.

The second appeal has been preferred by the defendant in O.S.No.253 of 1989 on the file of the Principal District Munsif, Pondichery being aggrieved by the judgement and decree of the Learned II Additional District Judge, Pondicherry made in A.S.No.137 of 1990 dated 24.4.1992 in reversing the judgement and decree of the Principal District Munsif, Pondicherry dated 27.8.1990 made in O.S.No.253 of 1989 and granting a decree for specific performance.

2. Heard Mrs.Chitra Sampath, learned counsel appearing for the appellant and Mr.G.RAjan, learned counsel appearing for the respondent. For convenience, the parties will be referred as arrayed before the trial court.

3. The plaintiff instituted the suit O.S.No.258 of 1989 on the file of the Principal District Munsif, Pondicherry for specific performance of the agreement to sell. The plaintiff's case is summarised here: The defendant, the owner of the suit property agreed to sell the southern half of the suit property for a consideration of Rs.41,250/= after receiving Rs.1000.- as advance on 12.5.1977. The defendant executed an agreement to sell on 12.5.1977. The defendant also handed over possession of the suit property to the plaintiff on 12.5.1977. On 18.6.1980 the defendant executed another agreement for sale in respect of the entire suit property which is in possession of the plaintiff for a consideration of Rs.10,000/= and received a sum of Rs.3500/= towards advance. In terms of the said agreement, the defendant agreed to convey the suit property in favour of the plaintiff within six months after handing over the original title deeds and nil encumbrance certificate. The plaintiff was always ready and willing to perform his part of the contract and was ready to pay the balance sum of Rs.5500/=, which the defendant was evading. After causing notice, the present suit has been instituted as the plaintiff came to know that the defendant is trying to sell the suit property in favour of a third party. On the said pleadings, the plaintiff has instituted the suit for specific performance by presenting the Plaint on 28.3.1989 and it was taken on file on 29.3.1989.

4. The defendant contested the suit claim by filing a detailed written statement. According to the defendant, he did not execute the agreement to sell the southern half of the suit property on 12.5.1977 as claimed. The plaintiff approached the defendant to lease out the suit property and obtained signature of the defendant by paying advance of Rs.1,000/= on a deed already prepared by the plaintiff. The plaintiff obtained the signature of the defendant representing that the document is only a lease deed. The plaintiff is not in possession and enjoyment of the suit property, but he was allowed to occupy 16" x 25" in the northern side of the suit property only as a lessee.

5. The defendant entered into an agreement to sell with the plaintiff to sell the entire property and a sale agreement was executed on 18.6.1980. In terms of the agreement, the plaintiff should pay the balance of sale consideration within six months, which the plaintiff failed and failed to complete the sale transaction. The plaintiff willfully failed and neglected to perform his part of the contract despite demands made by the defendant. Since the plaintiff did not come forward to perform his part of the contract, the defendant entered into a fresh sale agreement on 31.1.1989 with one Kumar Anusuya for a sale consideration of Rs.15,000/= after receiving advance of Rs.5000/=. The defendant has also handed over possession of the suit property including the portion occupied by the plaintiff to the said Kumar Anusuya. The suit claim is barred by limitation. The plaintiff who is guilty of latches and who was never ready to perform his part of the contract, is not entitled to the relief of specific performance.

6. The trial court framed the following three issues:-

(i) Whether the defendant agreed to sell half of the suit property to the plaintiff for a sum of R