The main legal point established in the judgment is the requirement for substantiating the agreement of sale and the sale consideration, as well as the importance of saleable interest in the property and possession of the property by the defendant.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 CPC, 1908 against the decree and judgment dated 07.09.2010 passed in A.S. No.30 of 2009, on the file of the I Additional Sub Court, Salem, reversing the decree and judgment dated 15.11.2008 passed in O.S. No.2123 of 2004, on the file of the II Additional District Munsif, Salem.)

1. The appellant is the 2nd defendant in O.S. No.2123 of 2004 on the file of the II Additional District Munsif, Salem. The 1st respondent/plaintiff filed the suit for specific performance of contract and also for a declaration that the sale deed executed by the 1st defendant in favour of the 2nd defendant as null and void and for a consequential relief of permanent injunction restraining the 2nd defendant from interfering with her peaceful possession and enjoyment of the suit property.

2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present appeal would also be indicated.

3. The case of the plaintiff in nutshell is as follows:

i. The suit property is a house site in Block No.11, T.S. No.4, Salem Town, admeasuring 437 sq. ft along with a tiled house put up in the front portion of the property.

ii. The plaintiff has been in possession and enjoyment of the suit property in pursuance of the oral agreement of sale on 20.05.1988 between her and the 1st defendant. The 1st defendant also received a sum of Rs.8,000/- from her.

iii. On 31.10.1988, the 1st defendant, received another sum of Rs.7,000/- from her for constructing a house and executed a loan document (Ex.A1) in respect of the same.

iv. Subsequently another sum of Rs.30,000/- was received by the 1st defendant from the plaintiff and he acknowledged the debt borrowed by him and executed a letter of acceptance on 14.07.1991 (Ex.A2).

v. On 24.09.1991, the 1st defendant agreed to sell the suit property in favour of the plaintiff (Ex.A3) for a total sale consideration of Rs.32,000/- and agreed to deduct the sale price from the amount of Rs.50,000/- borrowed by him. He further agreed to pay the balance amount of debt in instalments.

vi. Though the plaintiff requested the 1st defendant to perform his part of the contract by executing a sale deed in her favour, the 1st defendant did not come forward to fulfill his obligations under the contract.

vii. To the shock and surprise of the plaintiff, the 1st defendant executed a sale deed dated 29.07.1991 (Ex.B2) in favour of the 2nd defendant and the said sale deed is unenforceable in law. viii.Hence she filed the suit for the reliefs as stated above.

4. The suit was resisted by the defendants on the following grounds:

i. The 1st defendant never borrowed any amount from the plaintiff and did not promise the plaintiff to sell the suit property in her favour.

ii. The allegation of the plaintiff that she demanded the 1st defendant on 30.11.1991 and 05.12.1991 to execute the sale deed in her favour is totally false.

iii. The 1st defendant had, in fact, sold the suit property in favour of the 2nd defendant for a valuable sale consideration of Rs.31,147/- on 29.07.1991 itself through a registered sale deed (Ex.B2).

iv. He also handed over possession of the suit property to the 2nd defendant. As on the date of filing of the suit, the 2nd defendant is a lawful owner of the suit property and therefore there is no cause of action for filing the suit. The description of the suit property is also incorrect.

They therefore prayed for dismissal of the suit.

5. On the basis of the above pleadings, the trial court framed the following issues:

1) Whether the 1st defendant borrowed a sum of Rs.45,000/- from the plaintiff on various dates?

2) Whether there was an agreement of sale between the plaintiff and the 1st defendant in respect of the suit property?