JUDGMENT :

PRAYER: This Appeal Suit is filed under Section 96 of C.P.C. against the judgment and decree dated 04.01.2001 made in O.S.No.260 of 1994 on the file of the Additional Subordinate Judge, Nagercoil.

Aggrieved over the decree and judgment of the trial Court granting specific performance in respect of the suit properties, the present appeal came to be filed by the first defendant. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.

2. The first defendant is the owner of the suit properties and he has agreed to sell the same to the plaintiffs 1 and 2 and second defendant for a sale consideration of Rs.4,00,000/- and executed a registered sale agreement on 07.07.1993 and received Rs.3,00,000/- advance on the same date of agreement. Time agreed for completion of sale is one year. On 04.07.1994, the first defendant, received another One Thousand Rupees towards sale consideration and made endorsement and agreed to execute sale deed before the end of the August 1994. The plaintiffs 1 and 2 and the second defendant were ready and willing to perform the part of the contract and pay sale consideration. However, the first defendant have been evading to execute the sale deed. Further legal notice dated 16.06.1994 27.09.1994 were issued to the first defendant by the plaintiffs 1 and 2 and the second defendant. They also issued publication in news paper on 24.08.1994. Thereafter, plaintiffs 1 and 2 sent another legal notice on 26.08.1994 requesting the first defendant to perform the part of the contract and execute the registered sale deed. In the mean time, the first defendant has filed caveat as against the plaintiffs 1 and 2. On receipt of the papers, the plaintiffs came to know that the first defendant is evading to execute the sale deed. In the mean time, the plaintiffs 1 and 2 also executed assignment deed in favour of the third plaintiff on 20.09.1994. As the second defendant is not co-operated with the plaintiffs 1 and 2, he was made as defendant. Hence, the suit filed for a specific performance and alternatively for decree for specific performance of agreement as regards 2/3 share of the plaint schedule properties and directing the first defendant to execute sale deed as regards 2/3 share of the suit schedule property in favour of the plaintiffs.

3.The second defendant remained ex-parte. The first defendant denied the entire agreement in toto. It is his contention that he has not received any advance amount. He also denied the endorsement on the back side of the agreement. It is the contention of the defendant that the second defendant is the close relative of the first defendant and due to his ailment his hearing was completely down and therefore, the second defendant was collecting rent from the tenants on behalf of the first defendant. According to the first defendant, he also issued notice to the second defendant stating that he falsely obtained document in his favour. Hence, his contention is that agreement was never executed by him and the third plaintiff is a stranger to the lease and no assignment agreement given for him and hence, he disputed the very contract itself.

4. Based on the above pleadings, the trial Court has framed the following issues:-

1. Whether plaintiffs are entitled for specific performance or alternative prayer as prayed in the suit?

2.Whether the agreement dated 07.07.1993 is true and valid?

3.Whether the suit is maintainable?

5. On the side of the plaintiffs, P.W.1 to P.W.5 were examined and Ex.A1 to Ex.A35 were marked. On the side of the defendants, the first defendant examined as D.W.1 and exhibits Ex.B1 to Ex.B7 marked. Ex.C1 and Ex.C7 also marked. Based on the evidence adduced, the trial Court came to the conclusion that the agreement dated 07.07.1993 is valid and executed by the first defendant and granted specific performance as prayed for. Challenging the same, the present appeal came to be filed.

6. The learned Senior Counsel appearing for