Presumption of refund arises when original sale documents are returned; burden lies on plaintiff to prove consideration not refunded and possession for specific performance under unregistered sale agreement.

JUDGMENT :

R.Sakthivel, J.

This Second Appeal is directed against the Judgment and Decree dated September 12, 2017 passed in A.S.No.26 of 2016 by the 'II Additional District and Sessions Court, Vellore at Ranipet, Vellore District' [henceforth 'First Appellate Court'] reversing the Judgment and Decree dated January 22, 2016 passed in O.S.No.108 of 2014 by the 'Subordinate Court, Arakonam' [henceforth 'Trial Court'].

2. Pending the Second Appeal, the 1^st appellant herein / sole plaintiff in O.S.No.108 of 2014 passed away and his legal heirs were brought on record as legal representatives of the deceased 1^st appellant / sole plaintiff.

3. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.

PLAINTIFF’S CASE

4. The plaintiff entered into a Sale Agreement with defendants 1 and 2 on February 2, 2005 to purchase the Suit Property for Rs.6,00,000/- (Rupees Six Lakhs only), which was paid in full, and possession was handed over on the same date to the plaintiff by defendants 1 and 2. The defendants 1 and 2 also executed a General Power of Attorney on the same day in favour of plaintiff in respect of Suit Property. Based on the General Power of Attorney, plaintiff entered into a registered Sale Agreement with his mother - Janakiammal.

4.1. The defendants 1 and 2 promised to execute the Sale Deed after receiving the Title Deed pertaining to Suit Property pending before the Sub-Registrar Office. But they have failed to do so. On October 30, 2007, the defendants 1 and 2 on the pretext that they received the Title Deed from the Sub Registrar Office, sought for the Original Sale Agreement as well as the Original General Power of Attorney, which were under the plaintiff’s custody, for perusal. The plaintiff believed them and handed over the same. Subsequently, the defendants 1 and 2 revoked the said Power of Attorney without plaintiff’s knowledge and attempted to sell the Suit Property to third parties for a higher value. Despite several notices and demands, the defendants 1 and 2 neither executed the Sale Deed nor returned the consideration amount nor provided any compensation. The plaintiff is in possession of the Suit Property. Hence, the plaintiff seeks specific performance of the Sale Agreement and injunctions.

DEFENDANTS' CASE

5. Defendants 1 and 2 filed written statement which was adopted by defendants 11 to 13. In their written statement, they asserted that the plaintiff voluntarily rescinded the Sale Agreement dated February 2, 2005 and received refund of the sale consideration viz., Rs.6,00,000/- (Rupees Six Lakhs only) along with Rs.3,00,000/- (Rupees Three Lakhs only) as damages. They have denied that they handed over possession of the Suit Property to the plaintiff and claimed that the plaintiff fraudulently executed a Sale Agreement with his mother on May 4, 2007 without legal authority. They contended that the plaintiff was aware of the revocation of the Power of Attorney in 2005 itself. They further contended that the Suit is barred by limitation, lacks merit, and is an attempt to extort money. They seek dismissal of the Suit. Further, the defendants 1 and 2 claimed mandatory injunction against 3rd defendant to delete the fraudulent Sale Agreement dated April 5, 2007 entered by the plaintiff with his mother from official records by way of a counter-claim.

TRIAL COURT

6. At trial, the plaintiff - Jayachandran was examined as P.W.1 and Ex-A.1 to Ex-A.10 were marked on the side of the plaintiff. On the side of the defendants, the defendant - Bhaskaran was examined as D.W.1 a