JUDGMENT

The second and third defendants in O.S.No. 52 of 1995 on the file of the District Munsif cum Judicial Magistrate Court, Vanur are the appellants herein.

2. The suit in O.S.No. 52 of 1995 had been filed by the Kottakuppam Town Dravida Munnetra Kazhagam represented by its Secretary Shanmugam and by N.Shankar, Building Fund President, Kottakuppam Village, Vanur Taluk against Hazimunniza and against the appellants herein, Mohammed Yahya and R.Gani, seeking specific performance of an oral agreement of sale dated 11.10.1981 said to have been entered into by the first defendant Hazimunniza with them. The said suit had been tried along with an earlier suit filed by the same plaintiffs against the same defendants in O.S.No. 14 of 1995. In that suit, the relief sought was for a declaration that the plaintiffs were the tenants under the defendants and for permanent injunction to protect possession.

3. By common Judgment dated 20.09.1996, the District Munsif cum Judicial Magistrate, Vanur, decreed O.S.No. 14 of 1995, namely, the suit filed for declaratory relief that the plaintiffs were tenants and for injunction but dismissed O.S.No. 52 of 1995 which was the suit filed for specific performance of the oral agreement of sale dated 11.10.1982.

4. Aggrieved by the said common Judgment, the plaintiffs filed A.S.No. 161 of 2022 questioning the dismissal of O.S.No. 52 of 1995 and also filed A.S.No. 18 of 2002 questioning the Judgment in O.S.No. 14 of 1955. Both the Judgments were taken up together by the Additional District Court/ Fast Track Court No.I, Tindivanam, and by common Judgment dated 30.01.2003, A.S.No. 18 of 2002 was dismissed and A.S.No. 161 of 2002 was allowed.

5. The first and second defendants have filed the present Second Appeal against the Judgment in A.S.No. 161 of 2002. During the pendency of the Second Appeal, the first appellant died and his legal representatives had been brought on record as third to fifth appellants.

6. The Second Appeal had been admitted on the following substantial questions of law:-

“i.) Whether not the vendor in title is estopped from questioning the validity of the sale without seeking to set aside in a suit for specific performance?;

ii) Whether the suit is maintainable on the basis of an oral agreement to sell without proper evidence?; and iii) Whether the suit for specific performance is maintainable without the basic ingredients?”

O.S.No. 52 of 1995 [ District Munsif cum Judicial Magistrate, Vanur]:

7. The suit was originally presented before the District Munsif Court at Tindivanam in O.S.No. 627 of 1990 and on formation of the District Munsif cum Judicial Magistrate Court at Vanur, had been transferred to that Court and renumbered as O.S.No. 52 of 1995.

8. In the plaint, it had been contended that the suit property originally belonged to the first defendant, Hazimunniza. It was stated that the party office of the Dravida Munnetra Kazhagam was functioning in the suit property as tenant on a monthly rent of Rs.40/-. It was further stated that the first defendant had agreed to sell the property to the plaintiffs by way of an oral agreement on 11.10.1982 for total consideration of Rs.10,000/-. It had been stated that however, the first defendant had sold the property to the second defendant. Since the second defendant interfered with possession, the plaintiffs had filed O.S.No. 601 of 1983 seeking a declaration that they are tenants under the first defendant and for permanent injunction. It was stated that in the said suit, the plaintiffs had filed I.A.No. 1891 of 1987 to amend the relief sought to include the relief of specific performance. Though that application was allowed, subsequently in C.R.P.No. 729 of 1989, the application was dismissed by order dated 03.05.1990. This had necessitated the plaintiffs to file a separate suit seeking specific performance of the oral agreement dated 11.10.1982.

9. The suit schedule property had been described as shop in Door No. 163 to the East of Main Road at