JUDGEMENT

This second appeal arises out of a suit for specific performance.

One Nallammal filed the said suit for enforcing the sale agreement dated 27.08.1993 executed by one Perumal Gounder in her favour. There is no dispute that the sale consideration was fixed at the rate of Rs.1775/-per cent. The agreement contemplated sale of 1 acre and 53 ½ cents. The grievance of the plaintiff was that even though a substantial portion of the sale consideration was paid (Rs.1,50,000/-) and only a sum of Rs.1.00 lakh remained to be paid, the defendant did not come forward to execute the sale deed. Pre-suit notice dated 09.03.1994 was issued. The same was received by the defendant. But then, the defendant did not issue any reply notice. Hence, the suit came to be filed for the aforesaid relief. Periya Gounder filed his written statement controverting the plaint averments. On behalf of the plaintiff, her husband Chinnappan examined as PW.1 and Exs. A1 to A3 were marked. The defendant examined himself as DW.1. No documentary evidence was adduced on his side. After considering the evidence on record, the trial court vide judgment and decree dated 08.10.1996 dismissed the suit but directed the defendant to return the advance amount of Rs.1.50 lakhs with interest @ 15% per annum. Aggrieved by the same, the plaintiff filed A.S No. 210 of 1996 before the II Additional District Judge, Trichirappalli. The first appellate court by the impugned judgment and decree dated 30.07.1998 allowed the appeal and decreed the suit. Questioning the same, this second appeal came to be filed. The second appeal was admitted after framing the following substantial questions of law :

“1.Whether the time is not the essence of contract when the respondent/plaintiff/agreement holder has not even moved her little finger to perform her part of contract before the expiry of the sale agreement and in such circumstances whether the respondent is entitled to the equitable remedy ?

2.Whether the pleadings contradictory to the terms of the sale agreement which is subsequently neither changed nor altered will prevail over the express terms of agreement ? and

3.Whether the respondent is entitled to the equitable relief of specific performance who has not performed her part of contract by paying the entire consideration and comes to the court with false case ?”

2.During the pendency of this appeal, the appellant as well as the respondent Nallammal passed away. Their respective legal heirs were brought on record. When the matter was taken up for hearing on the previous occasion, it came to be known that Periya Gounder during his life time had sold the property in two parcels in favor of one Paneer Selvam and one Kuzhanthaivel. Therefore, it was directed that they could also be impleaded as parties. They were accordingly impleaded as parties vide order dated 10.06.2021. Before the next hearing, during the intervening period, Paneer Selvam also passed away. When the matter was taken up for final hearing, I suggested that the issue can be amicably resolved. It was submitted that there there was an acquisition of almost 50 cents of land for road purpose. According to the learned counsel for the appellant, only about 100 cents of land are presently available on ground. Be that as it may, I suggested that a sale deed can be executed in favour of the legal heirs of the plaintiff for 50% of whatever is available on ground. The matter was adjourned on more than one occasion to enable the learned Senior counsel for the plaintiff to get instruction. In fact, some of the parties were also present along with the respective counsel through video conference. I am happy to record that the suggestion put forth by the court has been accepted by both the parties. Accordingly, this second appeal is disposed of in the following terms : (i).The judgment and decree of the first appellate court is set aside.

(ii).The learned Sub Judge, Karur is directed to appoint an Advocate Commissioner for measuring the s