The plaintiff must demonstrate bona fide readiness and willingness to perform a contract for specific performance, which was not established in this case.

JUDGMENT

1. These two appeals arise from two suits – O.S. No. 24/2012 and O.S. No.198/2013, which were disposed of by a common judgment. Hence, both the appeals are disposed by a common judgment. Appellant in both these appeals is the plaintiff in O.S. No.24/2012, who is the defendant in O.S. No.198/2013.

2. O.S. No.24/2012 is filed for specific performance of Ext.A1 Agreement dated 06.04.2009 with respect to the plaint schedule property with an alternate relief for realisation of an advance amount of Rs. 90,000/- with interest at the rate of 12% per annum from 01.07.2009. O.S. No.198/2013 is a suit for mandatory injunction directing the defendant to put the plaintiff in possession of the plaint schedule property and realisation of Rs.44,100/- as damages for the use and occupation upto 22.09.2010. O.S.No.198/2013 was originally filed as O.S.No.271/2010 before the Munsiff's Court, Kuthuparambu and thereafter it was transferred to the Sub Court, Thalassery and renumbered as O.S.No.198/2013.

3. The Trial Court dismissed O.S. No.24/2012 and decreed O.S. No.198/2013 granting mandatory injunction directing the defendant to vacate the plaint schedule property and the house existing therein to the plaintiff within a period of two months and in case of default allowing the plaintiff to execute the decree through the court. The prayer for realisation of damages for use and occupation of the plaint schedule property and the house is disallowed.

4. The appellant filed appeals before the First Appellate Court challenging the Judgments and Decrees in both the suits and both the appeals were dismissed by confirming the Judgments and Decrees of the Trial Court.

5. I heard the learned counsel for the appellant Sri. E. Muhammed Shafi.

6. The learned counsel for the appellant contended that the appellant, who was the plaintiff in O.S. No. 24/2012, could not file the suit in time as there was a dispute between the plaintiff and the defendant with regard to the quantum of the advanced amount paid. According to the plaintiff, the advance amount received is only Rs.50,000/- whereas according to the defendant, he has paid a further amount of Rs. 40,000/- through his son, who was examined as PW2. On account of this dispute, the sale could not be effected, though the plaintiff was ready and willing to perform his part of the Agreement. When it is found that the dispute could not be amicably settled, the plaintiff filed the suit. There is no reason to deny the specific performance. The defendant was not ready and willing to perform his part of the agreement. He did not even clear the encumbrance over the property. The Court should have granted a decree at least for the return of the advanced amount in this matter. O.S. No.198/2013 for mandatory injunction is not maintainable since in Ext.A3 Lawyer Notice, it is specifically stated by the plaintiff in O.S. No.198/2013 that the arrangement is a lease between plaintiff and the defendant. In such case, the plaintiff has to file the suit for recovery of possession in accordance with Section 106 of the Transfer of Property Act. The plaintiff did not state the date on which the possession was given to the defendant and the date on which the license arrangement was terminated in the Plaint, which are to be specifically stated in a suit for a mandatory injunction. Hence the Trial Court and the Appellate Court ought not to have granted a decree in O.S. No. 198/2013.

7. The parties are referred according to their status in O.S. No.24/2012 hereafter.

8. The plaint schedule property is 8 cents land and residential building therein belonging to the defendant. It is the admitted case of both the parties that Ext.A1 Agreement for sale was executed between the plaintiff and the defendant, by which the defendant agreed to sell the plaint schedule property to the plaintiff for an amount of Rs. 3,50,000/-; that an advance amount of Rs. 50,000/- was paid pursuant to the agreement; that the period for performance of the agreement