M. KARPAGAVINAYAGAM, J. - Sakunthala, the appellant herein, is the defendant in the suit.

Murugesan, the respondent/plaintiff, filed a suit for recovery of the advance money of Rs. 95,000 based on an agreement of sale dated 30.8.1990 on the ground that there is a cloud over the title of the appellant to the suit property. The trial Court decreed the suit as prayed for. The lower appellate Court also confirmed the said decree in an appeal filed by the appellant/defendant. Hence, this second appeal by the defendant having lost in both the Courts below.

The case of the plaintiff/respondent is this :

"(a) On 30.8.1980, the appellant/defendant executed and agreement of sale in respect of the suit property for a sale consideration of Rs. 2,32,000. She obtained a sum of Rs. 75,000 from the plaintiff as advance. It was agreed that the sale deed has to be executed on payment of the balance amount of sale consideration on or before 15.1.1991. Again on 4.10.1990, the plaintiff/respondent gave Rs. 20,000 and obtained receipt. Thereafter, the plaintiff approached the defendant on several occasions informing that he was ready with the money and requesting her to execute the sale deed, but the appellant evaded.

(b) In the meantime, the plaintiff came to know that there was a cloud over the title to the suit property. The property in question was a poramboke land which was allotted for the purpose of construction of police quarters by the Government. So, on 7.1.1991, the plaintiff sent a notice and the same was returned as "the addressee not found". Again on 22.2.1991, he sent another notice and there was no reply.

(c) Ultimately, on 24.3.1991, the plaintiff sent a notice asking her to refund the money paid to her earlier. This time, the defendant sent a reply dated 5.4.1991 staring that she obtained only Rs. 23,101 and there was no cloud over the title to her property and she also filed a suit against the Government for declaration of title and injunction and as such, the plaintiff would not be entitled to the return of the money, as the period for performing the contract had already expired. "Hence, the suit."

The case of the defendant/appellant is this :

"Though the sale agreement was executed on 30.8.1990 for a sale consideration of Rs. 2,32,000, the defendant had totally received only Rs. 21,101 as advance. On 4.10.1990, the plaintiff received a receipt for Rs. 20,000 from the defendant on compulsion. There is no cloud over the title to the property, since the land in question was purchased from her vendor on 20.8.1980 and subsequently, she constructed a building therein. Moreover, she filed a suit in O.S. No. 44 of 1991 before the Civil Court against the Government for declaration of title over the suit property. Since the plaintiff had not approached with the balance amount of money within the time stipulated (i.e.,) 15.1.1991, the plaintiff would not be entitled to refund of the money advanced and as such, the suit is liable to be dismissed."

On the basis of the above pleadings, various issues were framed. During the course of trial, the plaintiff examined himself as P.W. 1 and Exs. A-1 to A-7 were marked and on the side of the defendant, three witnesses were examined. The defendant was examined herself as D.W. 1. The trial Court, on consideration of the evidence, both oral and documentary, rejected the case of the defendant and upheld the contention of the plaintiff and decreed the suit as prayed for.

Feeling aggrieved over the same, the defendant filed an appeal in A.S. No. 108 of 1997. During the pendency of the appeal, the defendant filed two documents as additional evidence, namely, Exs. B-1 and B-2, the judgment and decree rendered by the Civil Court in O.S. No. 44 of 1991 declaring the title of the suit property in favour Sakunthala, the defendant herein, and against the Government.

On the strength of these documents also, it was argued before the lower appellate Court that the defendant had a valid title over the suit