Sadasivam, J.-Appellants are defendants 1 and 6 in O.S.No. 23 of 1963, on the file of the Subordinate Judge’s Court, Padmanabhapuram. The first respondent-plaintiff filed the suit for specific performance of the agreement of sale Exhibit A-4, dated 15th February, 1961, for Rs. 52,000 in respect of 126 acres 91 cents of land known as ‘Love Grow Providence Estate’ owned by defendants 1 and 2. The first defendant is the wife and the second defendant is the daughter of D.W. 4 Raman Pillai, who acted on their behalf in bringing about the agreement of sale. Defendants 1 and 2 had purchased the suit property from the third defendant on 20th June, 1956 for Rs. 20,000 under the original of Exhibit B-2, but paid only Rs. 1,500 at the time of sale and agreed to pay the balance of Rs. 18,500 in four instalments from August, 1958 to August, 1962. There is no dispute about the claim of the third defendant for the balance of sale consideration payable to him. Defendants 4 and 5 were cultivating the suit lands excluding the portions occupied by rubber plants and trees for raising tapioca under an unregistered lease deed dated 27th March, 1957, which has not however been produced in this case. According to the plaintiff, defendants 4 and 5 were in occupation of the suit lands as lessees of defendants 1 and 2 for the purpose of tapioca cultivation. But, according to defendants 1 and 2, defendants 4 and 5 were only licensees who were permitted to cultivate tapioca plants year after year. Defendants 4 and 5 claimed to be lessees in possession of the suit land and contended that they had spent Rs. 10,000 for improving the properties and claimed benefits of the Travancore-Cochin Act VIII of 1950. But they subsequently surrendered possession of the suit lands in pursuance of the compromise entered into by them with defendants 1 and 2. The sixth defendant purchased an extent of 67 acres 64 cents out of the suit properties from defendants 1 and 2 on 2nd December, 1963, that is after suit, for Rs. 60,000.

2. The learned Subordinate Judge accepted the plaintiff’s case that he was always ready and willing to perform his part of the agreement of sale and that the default was solely due to the inability of defendants 1 and 2 to give possession of the suit lands on account of the subsisting lease in favour of defendants 4 and 5. The learned Subordinate Judge, however, accepted the case of the contesting defendants 1 and 2 that the other conditions of sale as regards the obtaining of the encumbrance certificate and satisfying the plaintiff about the boundaries etc., of the suit properties were complied with. He did not agree that defendants 4 and 5 were merely licensees and that the possession of the suit properties remained with defendants 1 and 2, or that there was any abandonment of the suit claim by the plaintiff either on account of inordinate delay or other circumstances or that defendants 1 and 2 effected improvements at considerable cost and that specific performance should not therefore be granted. In the result, the learned Subordinate Judge decreed the suit as prayed for with costs against defendants 1 and 2 and allowed the third defendant to draw the amount due to him out of the amount to be deposited by the plaintiff within three months from the date of the judgment.

3. It is averred in paragraph 3 of the plaint that, as per the terms of the agreement, defendants 1 and 2 should have within three months of the date of the agreement of sale satisfied the plaintiff by getting encumbrance certificate regarding the plaint schedule property for the period from 8th June, 1956, and showing that to the plaintiff, that they should have satisfied the plaintiff regarding the boundaries and extent of the plaint schedule property and that they should also have delivered vacant possession of the plaint schedule property to the plaintiff. The first defendant has pleaded in her written statement that paragraph 3 of the plaint is not correct and that the relevant t

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