JUDGMENT

(Prayer: First Appeal filed under Section 96 of C.P.C., against the judgment and decree of the learned Additional District Judge cum Fast Track Court No.I, Erode in O.S.No.3 of 2006 dated 11.11.2008.)

Preliminary statement

1.1 The plaintiff in O.S.No.3 of 2006 on the file of Additional District Judge (Fast Track Court-I), Erode, is the appellant herein. He laid the suit for specific performance of an agreement of sale dated 30.07.1987 with an alternate prayer for return of the advance amount paid under the agreement of sale. The trial court rejected both.

1.2 Challenging the decree, the plaintiff has appealed to this Court. The parties would be referred to by their rank before the trial court.

2.1 The suit property is a residential house, and it was constructed on a site allotted to a certain Radhakrishnan by the 5th defendant, the Tamil Nadu Housing Board (henceforth would be referred to as Housing Board). The defendants 1 to 4 claim under Radhakrishnan.

2.2 The allottee of the site Radhakrishnan had executed Ext.A-1 sale agreement, dated 30.07.1987, in favour of one Pongiannan, who is not a party to the suit. On 08.5.1988, Pongiannan had made over this agreement to the plaintiff for a consideration. On the strength of this assignment, the plaintiff has laid the suit for specific performance. In the meantime, Radhakrishnan, the allottee of the site, and the owner of the suit property died. Hence, the suit was laid against his legal representatives.

3. The facts may appear very straight forward. However, what it camouflages is a set of litigations that the parties hereto have mutually instituted against each other, with the present suit forming the last in the series. The other litigations came to be laid between the date of ExtA-1 agreement and prior to the filing of the present suit for specific performance in 2006, to which necessary reference would be made later.

Pleadings

4.1 A narrative of the material facts in the plaint along with the details concerning the earlier litigations is now stated in greater detail:

* The suit property is described as a plot measuring 4,400 sq.ft. in a Housing Board layout with a residential building. As referred to earlier, this property was allotted by the Housing Board, the 5th defendant in the suit, to Radhakrishnan. He had constructed a house therein, and had inducted one Kalidas as the tenant of the suit property.

* On 30.07.1987, Radhakrishnan, along with 2nd and 3rd defendants, his sons, executed a sale agreement for the sale of the suit property to a certain Pongiannan. It is recited in the agreement:

?That the entire dues payable to the Housing Board had been paid by Radhakrishnan; and

?That a case seeking enhancement of compensation for the lands acquired for the Housing Board for its project of forming the layout is pending at the instance of the landowners before the Court.

* The material terms of the agreement are:

?The total consideration payable is Rs.5.40 lakhs, out of which a sum of Rs.1.0 lakh was paid as advance by Pongiannan.

?The tenant (Kalidas) must be vacated by Radhakrishnan within three months, and vacant possession of the property must be handed over to Pongiannan. On delivery of the possession, Pongiannan was to pay another Rs.50,000/- towards the balance sale consideration to Radhakrishnan.

?If however, the tenant could not be vacated, then a sum of Rs.1.0 lakh is to be deducted by Pongiannan from the sale consideration for vacating the tenant. (This would mean that the total sale consideration then would stand reduced to Rs.4.40 lakhs instead of Rs.5.40 lakhs)

?Pongiannan was to pay all the additional liability such as payment of any amount that might arise on the demands of the Housing Board in terms of any award to be passed by the Court in connection with the land-acquisition claim.

?Radhkrishnan was to execute the sale deed within 30 days from the date on which Ho