Readiness and willingness not specifically pleaded in plaint.

(Second appeal preferred under Sec.100 of the Code of Civil Procedure against the judgment and decree of the Subordinate Judge, Ranipettai, in A.S.No.55 of 2005 dated 20.9.2006 reversing the judgment and decree of the District Munsif, Arakkonam, in O.S.No.288 of 2004 dated 11.1.2005.)

The defendant whose defence though accepted by the trial court in a suit for specific performance, on being negatived by the first appellate forum, has brought forth this second appeal.

2. The respondent/plaintiff filed O.S.No.288 of 2004 on the file of the District Munsif, Arakkonam, seeking the relief of specific performance on the basis of Ex.A1 agreement dated 12.9.1988, alleging that the plaint Schedule mentioned property belonged to the defendant; that an agreement was entered into between the parties; that the defendant agreed to sell the same in consideration of Rs.78,110/-; that on the date of the agreement namely 12.9.1988, an advance of Rs.20,000/- was paid; that only a xerox copy of the agreement was handed over to the plaintiff; that the time within which the balance of consideration should be paid and sale deed should be executed, was stipulated in the agreement itself; that a sum of Rs.15,000/- was paid on 7.1.1989; that on 9.3.1989, another sum of Rs.10,000/- was paid; that a sum of Rs.6,000/- was also paid on 28.5.1989; that on receipt of the same, the defendant has made endorsements on the back of the agreement; that on 25.3.1989, the defendant has received Rs.19,000/- and executed a receipt in that regard; that as could be seen from the receipt, the plaintiff has paid Rs.70,000/-; that apart from that, the plaintiff has already paid Rs.1,000/-, and thus, the balance was only Rs.7,110/-; that the plaintiff made many a demand for the execution of the sale deed by receiving the balance of consideration; but, the defendant was evading; that the plaintiff was also put in possession of the property pursuant to the agreement; that under the circumstances, it is a case where Sec.53A of the Transfer of Property Act has got its application, since the agreement has been partly performed; that subsequent to the agreement, the plaintiff has not paid any waram to the defendant; that the plaintiff issued a notice on 23.3.1996; that in order to show his possession, documents have been filed; that on receipt of the said notice, the defendant has issued a reply notice containing false allegations; that under the circumstances, the plaintiff was compelled to file the suit for specific performance, and hence, it is filed.

3. The suit was resisted by the defendant inter alia stating that it is true that there was an agreement for sale on 12.9.1988; that the consideration was fixed at Rs.78,110/-, out of which an advance of Rs.20,000/- was paid on that day itself; that the description of property found in the plaint schedule, and the description of property found in the agreement, are inconsistent; that there was time stipulated; but, the plaintiff did not make the payment of the balance of consideration, since he had not sufficient funds; that under the circumstances, the plaintiff cannot seek the enforcement of the agreement; that after the agreement was entered into between the parties, the plaintiff was to pay Rs.51,000/-; that even now, the plaintiff was to pay Rs.7,110/-; that in the agreement filed, there are corrections made, apart from the receipt filed and relied on by the plaintiff; that the suit receipt was actually one fabricated by the plaintiff; that the plaintiff has not come to the Court with clean hands; that the suit is barred by limitation; that the plaintiff should have filed the suit in the year 1992 itself; that apart from that, the defendant is in possession of the property, and hence, the suit must be dismissed.

4. The trial Court framed necessary issues, tried the suit and dismissed the same. The aggrieved plaintiff took it on appeal. On enquiry, the first appellate Court allowed the appeal by setting aside the judg