JUDGMENT :

The unsuccessful plaintiff in a Suit for specific performance before the Courts below is the appellant before this Court.

2. Parties are referred to in the same litigative status as in the Trail Court.

Plaintiff's Case:

3. The plaintiff would submit that the suit schedule property belongs to defendants 1 and 2 in which they had put up a commercial complex. The suit schedule property, which is a part of the larger extent, is owned by defendants 1 and 2. The defendants had agreed to sell the same to the plaintiff for a total sale consideration of Rs.1 lakh and an agreement of sale came to be executed on 12.11.1997 and on the date of the agreement a sum of Rs.40,000/- was paid as advance.

4. It is the case of the plaintiff that he was always ready and willing to perform his part of the contract. He would also submit that possession of the property was handed over to him on the date of execution of the agreement itself. However, the endorsement regarding the handing over of possession was made on the sale agreement later.

5. On 08.05.1998, the plaintiff had leased out the suit-property to one M/s. Century Agency to carry on business, who after sometime vacated the same in the month of May 1999. The plaintiff would submit that from the date of the tenant handing over possession, he is in possession and enjoyment of the suit property. In the meantime, the plaintiff came to learn that the defendants 1 and 2 were attempting to create documents in favour of defendants 3 and 4 and therefore a legal notice was issued by the plaintiff to all the defendants on 12.12.1998.

6. The defendants 1 and 2 had manoeuvred to have the notice returned with the endorsement “Gone Out” and defendants 3 and 4 alone had given reply dated 27.01.1999 stating that the 4th defendant had purchased the suit-property and was in possession and enjoyment of the same. The third-defendant was the power of attorney agent for defendants 1 and 2. Therefore, the plaintiff had applied for an encumbrance certificate, and in the Encumbrance Certificate he found no entry with reference to sale of the suit-property in favour of defendants 3 and 4. After filing of the suit, the property was sold to the 5th defendant and therefore the 5th defendant was also impleaded as a party.

7. The plaintiff would submit that the defendants had taken advantage of his absence from the property. He being a permanent resident of Erode, and the tenant M/s. Century Agencies having vacated the same, the property was lying vacant. Taking advantage of this defendants 3 and 4 have trespassed into the suit-property and hence the suit. The plaintiff had sought for the alternative relief of refund of the advance amount together with interest at 24 per cent per annum.

Written Statement of Defendants 3 and 4:

8. The defendants 3 and 4 had denied the sale and the payment of advance and also the fact of possession being handed over to the plaintiff. They would contend that the suit-property in question was purchased by the fourth-defendant and she has been in possession and enjoyment of the same from the date of sale by letting it to tenants for over two years, which would clearly establish that the plaintiff is not in possession and enjoyment of the suit property. That on 19.04.2000 the defendants attempted to trespass into the suit property and that was suitably prevented and a police complaint was lodged is untrue and the present suit is only an abuse of law. An additional written statement was also filed by the 3rd defendant, which was adopted by the 4th defendant, in which once again they had reiterated that they are in possession of the suit-property.

Written statement of the 5th defendant:

9. The 5th defendant would submit that there is no cause of action against him and that the plaintiff had suppressed material facts and had not come to Court with clean hands in order to become entitled to the grant of the discretionary relief of specific performance. The 5th defendant is a bonafide purchaser for v