P.R. Shivakumar, J.

1. This second appeal has been preferred against the decree of the lower appellate court dated 30.11.2005 made in A.S.No.90/2005 on the file of the District Court, Coimbatore. K.P. Subbiah (died) filed the original suit O.S.No.1196/2000 on the file of Sub Court, Coimbatore for the relief of specific performance based on an agreement for sale dated 16.07.1992 allegedly entered into between himself and M.Mohammed Ismail (died), the vendor under the agreement for sale, ranking him as the first defendant in the suit and arraying Thangaraj, the 4th appellant herein as a co-defendant and ranking him as second defendant in the suit. The plaintiff also had prayed for an alternative relief in the event of the trial court negativing the relief of specific performance, for a decree directing the first defendant to refund the advance amount of Rs.3,00,000/- together with an interest thereon at the rate of 12% per annum from the date of plaint till realisation.

2. For the sake of convenience and for easy reference, the parties are referred to in accordance with their ranks in the original suit and in appropriate places wherever it is necessary their ranks in the second appeal shall also be furnished.

3. A larger extent of property, which was the subject matter of the agreement was shown as plaint 'A' schedule property. Deducting the property sold in favour of the son-in-law and daughter of the plaintiff, the balance extent alone was shown in plaint 'B' schedule. The relief of specific performance, perpetual injunction restraining the first defendant not to alienate or encumber or induct any third party into possession and a perpetual injunction not to alter the physical features had been sought for in respect of the unsold portion of land measuring 2873 sq.ft. described in plaint 'B' schedule. In the alternative, a decree for refund of advance amount had been sought for.

4. According to the plaintiff, the deceased first defendant M.Mohammed Ismail had entered into an agreement on 06.07.1992 with the plaintiff for the sale of the entire 'A' schedule property at the rate of Rs.56,000/- per cent and received an advance of Rs.1,00,000/-. The further case of the plaintiff was that though the time for completion of the transaction was fixed as six months in the agreement, the deceased first defendant had to vacate some occupants in the property and hence he received further advance on various dates and extended the time for completion of the sale transaction by making end Other on the agreement. According to the plaint averments, by 25.05.1994 a total sum of Rs.3,00,000/- had been paid and on 13.09.1996, the first defendant executed two sale deeds in respect of 1302.5 sq.ft. and 2814.5 sq.ft. respectively in favour of Umayavel (son-in-law of the plaintiff) and Subbulakshmi (daughter of the plaintiff) respectively. The sum of Rs.3,00,000/- paid in three installments prior to 13.09.1996 was adjusted towards the sale consideration and the balance consideration for the conveyed portion was also received by the first defendant. Subsequently, on 14.05.1998, a sum of Rs.2,00,000/- and on 15.05.1998 another sum of Rs.1,00,000/- were paid as further advance and the first defendant agreed to convey the rest of the property, which is described in plaint 'B' schedule. Though the plaintiff was ready and willing, it was the first defendant who postponed the completion of the transaction under one pretext or other. The notice issued by the plaintiff evoked no fruitful response and hence he was constrained to file the suit for the above said reliefs in respect of the plaint 'B' schedule.

5. The suit was contested on the basis of the written statement filed by the first defendant, which was adopted by the second defendant also. By and large, paragraph-wise plaint averments, were denied. Besides such denial, it was contended in the written statement that the suit agreement dated 16.07.1992 and the end Othersements found thereon were all fab