JUDGMENT

The second defendant in O.S.No. 269 of 1996 on the file of the Sub Court, Ooty, is the appellant herein.

2. The said suit in O.S.No. 269 of 1996 had been filed by the first respondent Pacha Gounder, seeking specific performance of an agreement of sale dated 10.03.1993 entered into between him and the first defendant J.Guruswamy with respect to the suit schedule property which has been described as lands measuring 0.39 acres in S.No. 311 and 0.48 acres in S.No. 369, totally 0.87 acres together with Tea plants and two labourer quarters at Adigaratty Village, Coonoor in Nilgiris District.

3. By Judgment dated 30.07.2003, the Sub Judge, Udhagamandalam, had decreed the suit. Thereafter, the second defendant Kandasamy had filed A.S.No. 51 of 2003 before the District Court at Udhagamandalam. By Judgment dated 29.03.2004, the Appeal Suit was dismissed. The second defendant has then filed the present Second Appeal.

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

“i) Whether in law, are not the decree and Judgment of the Courts below vitiated in relying on the recitals in the unregistered lease agreement Ex.A-5 which is inadmissible under Section 49 of Registration Act and Section 35 of Stamp Act?;

(ii) Whether in law have not the Courts below over looked the admission of P.W.3 that Ex.B-2 was executed on 03.03.1993 which is anterior to 10.03.1993 Ex.A-1?”

5. During the course of arguments, the following two additional substantial question of law had been framed:- “i) Whether the second suit is barred under Order II Rule (2) Criminal Procedure Code?; ii) whether the suit is maintainable without including the relief to declare the subsequent sale deed as null and void?.”

O.S.No. 269 of 1996 [ Sub Court, Udhagamandalam]:

6. The suit was filed by the plaintiff Pacha Gounder claiming that he and the first defendant J.Guruswamy, had entered into an agreement of sale with respect to the suit property, namely, 0.87 acres of land together with Tea plants and also two labourer quarters at S.Nos. 311 and 369, Adigaratty Village, Coonoor in Nilgiris District. It was stated that the total sale consideration was Rs.1,31,500/- and an advance of Rs.45,000/- had been paid. Since the first defendant tried to dispossess the plaintiff, he had filed O.S.No. 154 of 1993 for permanent injunction before the District Munsif Court at Coonoor. It was also stated that the plaintiff was ready with necessary amounts to pay the balance sale consideration. However, the first defendant sold the properties to the second defendant by sale deed dated 01.04.1993. It was stated that the second defendant was not a bona fide purchaser. It was therefore stated that specific performance must be directed of the agreement of sale dated

10.03.1993.

7. The first defendant in his written statement stated that he and E.L.Chennaiya jointly owned the suit property. He had entered into a lease deed with the plaintiff on 01.05.1992. The two labourer quarters were not included in the lease deed. There was a dispute which was referred to the Panchayat. The lease agreement was cancelled and the advance amount received was returned. Thereafter, the first defendant entered into an agreement of sale with the second defendant on 03.03.1993. To impress the seriousness of that agreement, he entered into a second agreement of sale with the plaintiff. Chennaiya was the scribe and the attesting witness. Subsequently, the second defendant Kandasamy came forward to purchase the property and in the Panchayat, the advance amount received from the plaintiff was returned back.

8. It had been stated that he then conveyed the property to the second defendant by sale deed dated 01.04.1993. He stated that the plaintiff had not disclosed the correct facts and it was stated that the suit should be dismissed.

9. The second defendant in his written statement stated that there was no relief sought to set aside the sale deed in his favour. It was therefore stated that the said sa