The appellant's failure to adhere to the payment schedule, establish readiness and willingness to perform her part of the contract, and lack of possession as part performance of the agreement led to the court's decision to dismiss the appeals.

K.Raviraja Pandian,J.

1. All the above three appeals are directed against the common judgment dated 29.11.1991 of the learned Single Judge of this Court made in Civil Suits No.95 of 1984, 170 of 1984 and 302 of 1989.

2. All the three suits were filed by the appellant herein. The suit in C.S.No.95 of 1984, which is the subject matter of O.S.A.No.12 of 1992, was one filed for the relief of passing a decree for specific performance of the agreement of sale dated 17.1.1981 directing the defendants 1 to 3 to execute the sale in respect of the suit properties in favour of the plaintiff or her nominees after receiving the balance consideration and in default to have the sale executed in the process of law through Court. C.S.No.170 of 1984, which is the subject matter of O.S.A.No.148 of 1999, was filed for the relief of passing a decree directing the defendant therein ie., V.K.P.Sunkavalli, the 4th respondent in C.S.No.95 of 1984 to return the sum of Rs. 1,25,000 being the amount received by him as commission with interest from the date of agreement i.e., 17.1.1981 till the date of realisation. C.S.No.302 of 1989, which is the subject matter of O.S.A.No.32 of 1995, was filed for passing of a decree for permanent injunction restraining the defendants from in any way interfering with the peaceful possession and enjoyment of the plaintiff of the suit properties.

3. Though the relief sought for in the three suits are differently worded, the cause of action for such suits is one and the same i.e., agreement of sale entered into between the parties on 17.1.1981 for the sale of the subject property and the letter issued by the fourth respondent on the even date. In order to appreciate the controversy and resolve the same, the facts which are essential are as follows: The suit properties are owned by defendants No.1 to 3 i.e., Mrs.Rajayalakshmi, Mr.Vijayakumar and Miss S.Uma. The fourth defendant is the husband of the first defendant and father of defendants No.2 and 3. The agreement of sale was entered into between the plaintiff and defendants No.1 to 3 on 17.1.1981 at Madras. The fourth defendant was instrumental in bringing out the agreement and for that purpose, he was given a sum of Rs.1,25,000 as commission subject to certain condition. The said agreement contains recitals to the effect that defendants No.1 to 3 would sell the properties agreed therein, which is in an extent of 24.95 acres for a total consideration of Rs.3,75,000 (at the rate of Rs.15,000 per acre approximately) and on the date of execution of the agreement, a sum of Rs.1 lakh was paid as advance. The agreement further contemplates that the plaintiff should pay a sum of Rs.1 lakh on or before 28.2.1981 and another sum of Rs.1 lakh on or before 6.4.1981 and the balance of Rs.75,000 on or before 30.5.1981. The sale deed has to be executed as and when the plaintiff wants the defendants to execute the same either in her name or in the name of her nominee/nominees. It is also stated in the agreement that the plaintiff has been constituted as a care taker of the properties and she continued to be as a care taker till the defendants give possession of the entire property on payment of the sale amount i.e., after the entire sale amount is paid. It is the case of the appellant though the agreement states that the time is the essence of the contract, in law, it is not so. The appellant/plaintiff took possession of the property pursuant to and in part performance of the agreement and improved the land by applying much quantity of manure and fertilisers, raised sugarcane in ten acres and paddy in ten acres. Thus, the plaintiff continued to be in possession of the property.

4. Pursuant to the agreement, the plaintiff paid the first instalment of Rs.1 lakh on 28.2.1981 and in respect of the second instalment of Rs.1 lakh payable on or before 6.4.1981, only a sum of Rs.25,000 was paid on 2.4.1981, because the fourth defendant, who promised to give original document within