JUDGMENT :

PRAYER: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 04.08.2011 in A.S.No.8 of 2008 on the file of the Additional District Court/Fast Track Court No.III, Kallakurichi, against the judgment and decree dated 02.12.2004 in O.S.No.145 of 2004 on the file of the learned Principal District Munsif, Kallakurichi.

The 3rd defendant in O.S.No.145 of 2004 aggrieved by the decree for specific performance granted against him and defendants 1 and 2 by the Courts below, has come up with the second appeal.

2. According to the respondent/plaintiff, the suit properties belonged to defendants 1 and 2. They agreed to sell the suit property to the plaintiff for a sum of Rs.1,00,000/- (One lakhs only) and had received an advance of Rs.75,000/- on 12.06.1999. The terms of the said agreement were reduced into writing on the said date and a period of four months was fixed for payment of balance sale consideration and execution of the sale deed. Claiming that the defendants 1 and 2 had not come forward to execute the sale deed, despite demands and the defendants 1 and 2 had sold the properties in favour of the 3rd defendant under a Sale Deed dated 21.09.1999, the plaintiff sued for specific performance, impleading the 3rd defendant, who was a subsequent purchaser of the suit properties. It was also pleaded that the 3rd defendant is not a bonafide purchaser for value without notice of the agreement.

3. Expectedly, the defendants 1 and 2, the agreement vendors remained exparte. It is also in evidence that the 1st defendant cancelled the sale deed executed by him in favour of the 3rd defendant a day after the presentation of the above suit for specific performance on 13.10.1999.

4. The 3rd defendant, subsequent purchaser resisted the suit contending that the said agreement created only to defeat his rights under the sale deed 21.09.1999. He would also claim that he is a bonafide purchaser for value without notice, apart from taking the other defences open to him in a suit for specific performance.

5. The trial Court upon consideration of the evidence on record concluded that the suit agreement is true and valid. The trial Court also rejected the claim of the 3rd defendant that he is a bonafide purchaser for value without notice of the agreement on the ground that he had not obtained the encumbrance certificate to verify the encumbrance before he purchased the property on 21.09.1999. The trial Court imputed the knowledge of the agreement of the 3rd defendant because of his failure to obtain encumbrance certificate prior to the sale deed. On the said finding, the trial Court decreed the suit for specific performance.

6. Aggrieved, the 3rd defendant preferred an appeal in A.S.No.8 of 2008. The lower appellate Court also concurred with the finding of the trial Court. Though an issue was framed by the lower appellate Court regarding the claim of the 3rd defendant that he is a bonafide purchaser for value without notice, the lower appellate Court did not render any specific finding on that issue. The lower appellate Court only pointed out that once the agreement is held to be true, the 3rd defendant cannot be termed as a bonafide purchaser without notice to the prior agreement. On the validity of the sale agreement dated 12.06.1999, the lower appellate Court concurred with the finding of the trial Court. The lower appellate Court also faulted that the 3rd defendant for not examining the attestors to the sale deed dated 21.09.1999. On the aforesaid conclusions, the lower appellate Court dismissed the appeal confirming the decree and judgment of the trial Court. Aggrieved, the 3rd defendant has come up with this second appeal.

7. The following questions of law were framed by this Court at the time of admission:

i. Whether the Courts below have grossly erred in decreeing the suit against the mandatory provisions of Section 16 (c) of the Specific Relief Act, 1963 since the plaintiff (respondent herein) has not pleaded and