CAV JUDGMENT

1. Heard the learned counsel for the appellant and the learned counsel for the respondents.

2. The second appeal is filed against the divergent finding of the Courts below. At the first instance, the relief of specific performance is granted in O.S.No.158/2013 directing the defendants to execute the sale deed and in the first appeal in R.A.No.143/2018, the Appellate Court reversed the said judgment of Trial Court and directed to refund the earnest money of Rs.2,00,500/- with 6% interest per annum.

3. The factual matrix of case of the plaintiff/appellant before the Trial Court while seeking the relief of specific performance, it is contended that defendant Nos.1 to 3 have agreed to sell the suit schedule property for a total sale consideration of Rs.8,02,000/- and executed a registered sale agreement on 17.02.2010 in favour of the plaintiff by receiving an advance amount of Rs.2,00,500. It is also the contention of the plaintiff that she was always ready and willing to perform her part of contract and inspite of request, defendants did not come forward to execute the sale deed. It is contended that defendant Nos.1 to 3 through defendant No.4 have executed the sale deed in favour of defendant Nos.5 to 7 and the same came to the knowledge of the plaintiff on a verification with the Sub- registrar and immediately filed a suit for the relief of specific performance and hence plaintiff is entitled for the relief of specific performance. It is also contended that sale deeds executed by defendant Nos.1 to 3 in favour of defendant Nos.5 to 7 respectively on 04.02.2012, 06.08.2010 and 27.11.2010 are null and void and not binding on the plaintiff. The defendant Nos.5 and 7 have filed their written statement contending that they have purchased the property for sale consideration and only with an intention to gain wrongfully, suit is filed and possession has also been delivered in favour of them and they are enjoying the same. The defendant No.7 also took the contention that the sale consideration is paid by way of hard cash. It is also the contention of both defendant Nos.5 and 7 that subsequent to the purchase of the property got changed khata and regularly paying the tax and plaintiff did not approach the defendant Nos.1 to 3 and plaintiff was not ready to perform his part of contract and she was not diligent to perform her part of obligation to obtain the sale deed.

4. The Trial Court having considered both oral and documentary evidence framed the following Issues and Additional Issue:

ISSUES

1) Whether the plaintiff proves that the defendant Nos.1 to 3 agreed to sell the suit schedule property for a total sale consideration of Rs.8,02,000/- and on 17.02.2010 defendants No.1 to 3 executed an agreement of sale in favour of the plaintiff by receiving an advance amount of Rs.2,00,500/-?

2) Whether the plaintiff proves that she was always ready and willing to perform her part of contract?

3) Whether the plaintiff is entitled for specific performance of contract of an agreement of sale dt:17.02.2010 in respect of suit schedule property, as prayed?

4) Whether the plaintiff proves that the Sale Deeds executed by defendants 1 to 3 in favour of defendants 5 to 7 respectively dt:04.02.2012, 06.08.2010 and 27.10.2010 are null and void and not binding on her?

5) What order or decree?

Additional Issue

1) Whether the 7^th defendant proves that he is a bonafide purchaser of the Item No.3 of the suit schedule property under a registered Sale Deed dt:27.11.2010?

5. The plaintiff in order to prove the case examined herself as P.W.1 and got marked Ex.P.1 to Ex.P.7. On the other hand to substantiate the case of the defendants, defendant No.7 was examined as D.W.1, but no documents were placed on behalf of the defendants. The Trial Court having considered both oral and documentary evidence placed on record, answered all the Issue Nos.1 to 4 as affirmative and answered the Additional Issue No.1 as negative in coming to the conclusion that 7^th defendant is a