This second appeal is directed against the judgment and decree of the learned Principal District Judge, Tirunelveli, dated 07.09.1994 made in A.S.No.128 of 1992 reversing the judgment and decree of the trial Court (Court of the Principal Subordinate Judge, Tirunelveli) dated 31.07.1992. The suit for specific performance had been dismissed by the trial Court. The lower appellate Court reversed the same and decreed the suit for the relief of specific performance as prayed for.

2. The respondent herein/plaintiff had filed the suit in O.S.No.61 of 1981 on the file of the Principal Subordinate Judge, Tirunelveli based on Ex.A1-suit agreement for sale dated 26.01.1983. According to the plaint averments, the deceased first appellant/defendant entered into an agreement with the respondent/plaintiff under Ex.A1 for the sale of the suit property for a sale consideration of Rs.20,424/- calculated at the rate of Rs.9,200/- per acre and received a sum of Rs.1,001/- towards advance and part payment of sale consideration on the date of agreement itself. It was the further contention of the respondent/plaintiff that possession of the suit property was delivered to him on the date of agreement in part performance of the contract and that a further sum of Rs.1,000/- was paid on 27.01.1983 for which an endorsement was made on the back side of the agreement Ex.A1.

3. The respondent/plaintiff had also contended that even before the expiry of the time stipulated in the agreement he met the deceased first appellant/defendant and her husband and demanded execution of sale deed after receiving the balance sale consideration; that on the other hand, the deceased first appellant/defendant was simply evading execution of the sale deed citing the existence of some encumbrances created by third parties in respect of the suit property and promising to execute the sale deed after clearing the said encumbrances; that the respondent/plaintiff was waiting in the hope that the deceased first appellant/defendant would keep her promise by executing the sale deed after clearing encumbrances, but to his shock and surprise she issued a legal notice on 02.03.1984 informing him that the agreement stood cancelled due to his failure to pay the balance amount of sale consideration on or before the date agreed upon and demanding restoration of possession of the suit property; that a suitable reply to the notice was sent to the deceased first appellant/defendant requiring her to fix a date for execution of the sale deed and inform the respondent/plaintiff and that even after receiving the said reply notice, the deceased first appellant/defendant did not come forward to complete the transaction. The respondent/plaintiff contended further that notices were published in the Newspaper by both of them and subsequent to exchange of such notices he was constrained to file the suit for the relief of specific performance.

4. The suit was resisted by the deceased first appellant/defendant by filing a written statement denying the plaint averments. Even though the plaint averments regarding the suit agreement were denied in paragraph 2 of the written statement, the deceased first appellant/defendant made a specific admission in paragraph 6 of the written statement to the effect that she entered into an agreement with the respondent/plaintiff on 26.01.1986 for the sale of the suit property and received a sum of Rs.1,001/- as advance on the date of agreement itself. On the other hand, it was her contention that she did not deliver possession of the suit property to the respondent/plaintiff in part performance of the contract and that on the other hand, the respondent/plaintiff taking advantage of his position as the owner of the adjacent land, trespassed into the suit property after the date of the suit agreement for sale. The deceased first appellant/defendant contended further that the plaint averments regarding existence of encumbrances and the respondent’s/plaintiff’s readi