ORDER: Mani, the third defendant in the suit is the appellant herein.

2. Batcha Sahib, the plaintiff, the first respondent herein filed a suit in O.S.No.721 of 1987 on the file of District Munsif, Tirukoilur against Palanivelu and Anjalai Ammal, the defendants 1 and 2 and also against the appellant/third defendant for specific performance to execute the sale deed as per the sale agreement dated 21.6.1985 and for mense profits. The respondents 2 and 3, the defendants 1 and 2 filed a written statement and contested the suit denying the execution of the said sale agreement. The appellant/ third defendant also filed a separate written statement contending that he purchased the suit property as per the sale deed dated 19.12.1986. Therefore, the suit was liable to be dismissed, as the appellant is the bona fide purchase for value.

3. The trial Court after considering the evidence, dismissed the suit holding that there is no sale agreement executed by the defendants 1 and 2. The plaintiff, the first respondent preferred an appeal in A.S.No.42 of 1966 on the file of the Principal District Judge, Villupuram. After hearing the counsel for the parties, the lower appellate Court allowed the appeal by decreeing the suit in favour of the plaintiff. Hence, this second appeal by third defendant, the bona fide purchaser, the appellant herein.

4. This Court while entertaining the second appeal ordered notice of motion and granted interim stay and permitted private notice by the order dated 2.7.1999. On receipt of the notice, the counsel for the parties entered appearance.

5. In the second appeal, the following substantial questions of law have been formulated:

(1) Whether in law the lower appellate Court is right in wrongly casting the onus on the defendants instead of on the plaintiff especially in a suit for specific performance?

(2) Whether in law the lower appellate Court was right in overlooking that under Sec.17 of the Specific Relief Act, equitable remedy should not be granted if the agreement-holder is not ready to take the sale deed even if it is a single day as laid down in Vasantha v. M.Senguttuvan, (1998)1 C.T.C. 186?

(3) Whether in law the lower appellate Court is not wrong in granting equitable relief to the plaintiff whose witness had given divergent and concocted versions of the suit transaction?

(4) Whether in law the lower appellate Court was not wrong in omitting to see that the plaintiff had neither pleaded nor provided his readiness and willingness to perform his part of the contract?

6. In elaboration of the above substantial questions of law, Mr.R.Subramaniam, the learned counsel appearing for the appellant would submit that the lower appellate Court is wrong in setting aside the well considered judgment of the trial Court. 7. On the other hand, Mr.Raghavachari, the learned counsel appearing for the plaintiff, the first respondent herein would submit substantiating the reasonings of the lower appellate Court.

8. Both the counsel would cite several authorities in support of their respective pleas.

9. Before going into the questions involved in this case, it would be better to deal with the settled position of law, while entertaining the second appeal by which the finding of fact arrived at by lower appellate Court while reversing the judgment of the trail Court is sought to be interfered with by the High Court under Sec.100, C.P.C.

10. It is ruled in the judgment of the Apex Court in Bholaram v. Ameerchand, A.I.R. 1981 S.C. 1209 and Safi Devi v. Mahadeo Prasad, A.I.R. 1978 All. 215, that where the first appellate Court found a particular document to be genuine, the finding being a finding of fact, the High Court, in the second appeal, could not interfere with it even if the same was erroneous.

11. However, it has been discussed in detail by referring to various judgments of the High Courts and the Supreme Court in Johinder Singh v. Nidhan Singh, A.I.R. 1996 P. & H. 120 and held that when the lower appellate Court, in arriving at its co

Click Here to Read the rest of this document