The burden of proof lies with the plaintiff in a suit for specific performance, and the duty of the purchaser is to ensure the property is free from encumbrance.

M. Venugopal, J.

O.S.A.NO.90 of 2002 is preferred by the appellant/ plaintiff as against the Judgment and Decree passed by the learned Single Judge in dismissing the suit for specific performance in C.S.No.80 of 1997 dated 04.09.2001.

2. The appellant/plaintiff has filed the suit C.S.No.80 of 1997 praying for the relief of directing the respondents/ defendants to execute the sale deed in respect of the suit property in favour of appellant/plaintiff in terms of sale agreement dated 10.07.1996.

3. The first respondent/defendant has not appeared in person or through his counsel. The second respondent/second defendant contested the matter. After contest, the learned Single Judge has come to the conclusion in the suit that the appellant/plaintiff has not proved Ex.P.1-Agreement dated 10.07.1996 as a true, genuine and valid document etc. and resultantly, held that the appellant/plaintiff is not entitled to the relief of specific performance as per Ex.P.1-Agreement dated 10.07.1996 and also held that the second respondent/second defendant is a bona fide purchaser for value without notice and dismissed the suit without costs.

4. The learned counsel for the appellant/plaintiff urges that the learned Single Judge is not correct in coming to the conclusion that Ex.P.1-Agreement for sale dated 10.07.1996 has not been proved and when the first respondent/first defendant has not filed the written statement and contested the matter and when the signature of the first respondent/first defendant has not been disputed, the finding arrived at by the learned Single Judge that Ex.P.1-Agreement for sale dated 10.07.1996 is not proved, is unsustainable in law and that the view taken by the learned Single Judge that the plaintiff/appellant should have examined atleast one contesting witness to prove Ex.P.1 is not correct, in view of the fact that there is no need for the appellant/plaintiff to examine the attestor to establish Ex.P.1-Agreement for sale.

5. The further plea of the appellant/plaintiff is that the learned Single Judge ought to have held that Ex.D.4-sale deed dated 30.01.1997 is not a genuine sale deed and that the recitals of the said sale deed will only prove the case of the appellant/plaintiff that the sale deed is a sham and nominal one.

6. According to the learned counsel for the appellant/ plaintiff, the first respondent/first defendant issued many cheques on 15.06.1998, including a post dated cheque and when the first respondent/first defendant has not disputed the claim made in the plaint, it is not open to the second respondent/second defendant to dispute the same.

7. It is significant to point out that when the appellant/plaintiff has filed the suit for specific performance originally, the first respondent alone has been arrayed as a defendant. The second respondent/second defendant has been impleaded as party in the suit as per order in Application No.848 of 1998 dated 24.08.1998 and as per order in Application No.3434 of 1998 dated 010. 1998.

8. The case of the appellant/plaintiff is that the first respondent/first defendant has proposed to sell the plaint schedule property to him for a consideration of Rs.10,05,000/- (Rupees Ten lakhs and five thousand only) and the appellant/plaintiff has accepted and agreed to purchase the same and that the appellant/plaintiff and first respondent/first defendant executed a sale agreement on 10.07.1196 and pursuant to the agreement, the appellant/ plaintiff paid Rs.8,05,000/-to the first respondent/first defendant as part of sale consideration and the balance of Rs.2,00,000/- to be paid within nine months from 10.07.1996 by the appellant/plaintiff to the first respondent/first defendant and to get the sale deed executed.

9. It is the further case of the appellant/plaintiff that when he approached the first respondent/first defendant on 03.02.1997 for production of the original documents pertaining to the suit property for the purpose of obtaining legal opinion and infor