JUDGMENT: Defendants 1 and 2 in O.S.No.3577 of 1984 on the file of the 8th Assistant Judge, City Civil Court, Madras, are the appellants in S.A.No.1997 of 1989. The third defendant in the said suit is the appellant in S.A.No.314 of 1990.

2. The first respondent herein filed the suit for specific performance and direction to defendants 1 to 3 to execute a sale deed in respect of the suit property in his favour on payment of the balance of sale consideration by him on the following averments:

On 21.12.1981 he entered into an agreement with the first defendant for purchasing three items of properties, namely 1.68 acres in S.No.725/2A, 0.2 acre in S.No.725/2C, and 0.3 acre in S.No.275/2D for a total consideration of Rs.11,250. He paid Rs.2,500 as advance and subsequently paid amounts, in all Rs.6,200 to the first defendant. He has always been ready and willing to get the sale completed. The first defendant has been evading. He had executed a power of attorney in favour of the second defendant and in pursuance of the same the suit property had been conveyed to the third defendant collusively. The third defendant knew about the agreement for sale in favour of the plaintiff. He, after his purchase, attempted to trespass into the suit property. The plaintiff therefore filed O.S.No.716 of 1983 for an injunction restraining the defendants from interfering with his possession and enjoyment of the suit property. The present suit is a comprehensive one for specific performance.

3. Defendants 1 and 2 set up a defence as follows:

The previous suit and the present suit relate to the same property. The previous suit was withdrawn. The present suit is hit by O.2, Rule 2, C.P.C. The suit property does not lie within the territorial jurisdiction of this Court or the City Civil Court, Madras. The first defendant also does not reside within the jurisdiction of the Court. The agreement for sale was actually taken by one Damodaran, but benami in the name of the plaintiff. Only 84 cents in S.No.725/2A is available. S.No.725/2C did not belong to the first defendant. Damodaran, who took the sale agreement, was apprised of the same, and thereafter, the suit agreements was cancelled by a mutual agreement. After that, the first defendant executed a power of attorney in favour of the second defendant, who sold 52 cents in S.No.725/2A to the third defendant. The plaintiff himself has conveyed 84 cents in the southern portion of S.No.725/2A to one Kannammal and Manickammal. The plaintiff was not put in possession of the property. There was no collusion between the defendants.

4. The third defendant besides reiterating the contentions raised by defendants 1 and 2, further stated that the sale in his favour was valid and the plaintiff’s remedy, if any, was to file only a suit for damages.

5. On the above pleadings, the trial Court framed the necessary issues and on the oral and the documentary evidence held that it had territorial jurisdiction to try the suit, that the suit was barred under O.2, Rule 2, C.P.C., that the plaintiff was not put in possession of the suit property in pursuance of the sale agreement, that the agreement had been taken benami in the name of the plaintiff, that the same was cancelled, and that the plaintiff was, therefore, not entitled to specific performance. By judgment and decree, dated 30.6.1986, the trial Court dismissed the suit.

6. The plaintiff filed an appeal in A.S.No.137 of 1987 before the Principal Judge, City Civil Court, Madras. The learned Principal Judge by judgment and decree dated 18.2.1988 allowed the appeal and decreed the suit for specific performance, directing defendants 1 and 3 to execute sale of the suit property in favour of the plaintiff on his depositing the balance of sale consideration into Court within one month thereafter. It is an against that, the present second appeals have been filed.

7. At the time of admission, the following substantial questions of law were raised for decision:

(1) Whether the suit for spec

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