A suit for specific performance of a contract must be filed within three years from the date fixed for performance, or if no such date is fixed, when the plaintiff has noticed that performance is refused.

1. Defendants 1 and 2 in O.S. No. 193 of 1981, on the file of Principal District Munsifs Court, Kallakkurichi, are the appellants.

2. First respondent herein, as plaintiff, filed the above suit for specific performance of agreement for sale dated 15-6-1974 and marked as Ex.A-3. First respondent alleged that the appellants along with respondents 3 and 4, who are his brothers and defendants 3 and 4 in the suit, agreed to sell the property for a total consideration of Rs. 9,000/-. It is further said that on the same date, they received the entire sale consideration. The agreement provided that the defendants agreed to execute the sale deed whenever called upon by plaintiff prior to 15-6-1976, i.e. , two years time was given for performance of the contract. It is further said that in or about June 1975, defendants 3 and 4 left the village searching for their livelihood and they orally agreed that on their return they would execute the sale deed as per agreement even if it was beyond the period 15-6-1976. It is said that the appellants also agreed for the said arrangement. Defendants 3 and 4 did not return to the village and their whereabouts were also not known till 1980. When the plaintiff heard that defendants 1 and 2 were attempting to sell the property to third parties, he issued a notice on 4-11-1980, for which a reply was given on 9-11-1980 denying the agreement and refusing performance. It is further said that from the beginning of the year 1976, plaintiff had always been and is even now ready and willing to perform his part of the agreement and to provide necessary stamp papers to get the sale deed executed by defendants and have it registered. It is further said that the defendants have received the entire sale consideration and, therefore, they should be directed to perform the contract as orally agreed in 1975. It is further said that the plaintiff is in possession of the property from the date of the agreement, and, if for any reason, defendants trespassed into the property, plaintiff should be put in possession of the same. It is further said that even though a date was fixed for performance of the contract, it is not the intention of the parties to treat the same as the essence of the contract. It is his case that time was never intended as essence of contract, and since the defendants have also received the entire sale consideration, the question of stipulating time also loses its importance. It is further said that since defendants have agreed to execute the sale deed whenever called upon by the plaintiff, without reference to 15-6-1976, the cause of action for the suit has arisen only on the date when they refused to perform their part of the contract. An alternative relief is also claimed that if for any reason, specific performance cannot be granted, plaintiff will be allowed to recover the sale consideration paid by him and a charge on the plaint property. The suit was, therefore, filed for specific performance of the agreement for sale, and if necessary, to direct the defendants to put the plaintiff in possession, alternatively asking the defendants to pay a sum of Rs. 9,000/- as a first charge on the plaint property.

3. Written statement was filed by appellants where they denied the transaction. According to the defendants, on 15-6-1974, there is no agreement for sale, nor did they receive Rs. 9,000/- as alleged. It is their case that sometime in the year 1974, they received a sum of Rs. 2,500/- agreeing to convey the suit properties within seven months. The price stipulated was Rs. 3,000/- per acre. It is their case that the plaintiff was never ready to perform her part of the contract. He never paid the balance consideration, nor did he possess the money to pay. The allegation that defendants 3 and 4 left the village was denied. It is their case that defendants 3 and 4 used to come and go from the village. It is also contended that the suit is barred by limitation. They also disputed the claim of