JUDGMENT

This second appeal has been filed as against the Judgment and Decree dated 05.01.2016 made in A.S.No.26 of 2015 on the file of the Additional District Sessions Court and Chief Judicial Magistrate, Ariyalur, confirming the Judgment and Decree dated 31.07.2012 made in O.S.No.321 of 2009 on the file of the Principal District Munsif Court, Ariyalur, thereby partly decreed the suit.

2. The petitioner is the defendant in the suit filed by the respondent herein for specific performance. The case of the respondent is that on 24.08.2008, they had entered into an agreement for sale in respect of the suit property, in which the appellant had agreed to sell the land for a total sale consideration of Rs.90,000/-. On the date of agreement for sale, the appellant had received a sum of Rs.83,000/- as advance. The agreement period was fixed as one year. Accordingly, the remaining sale consideration of Rs.7,000/- has to be paid by the respondent and on payment of the said amount to the appellant, he has to perform his part of contract. The appellant failed to execute any sale deed and as such the respondent caused legal notice on 14.08.2008 and filed a suit. 3. Resisting the same, the appellant herein filed his written statement stating that on 10.03.2002, he had purchased a motor cycle from the respondent for which he has to pay a sum of Rs.15,000/- . For the said payment, he had executed a pro-note and however, he could not able pay the said amount and thereafter he had executed another pro-note for a sum of Rs.30,000/-. Again, the appellant could not return the amount and as such on 12.03.2005, he had executed another pro-note for a sum of Rs.60,000/-. Thereafter, the entire loan was settled at Rs.35,000/- and as such he had never executed any agreement for sale and he had never intended to sell the suit property.

4. On the basis of the pleadings, the Trial Court framed the following issues:-

“ 1/ thjp tHfF; iuapy; nfhupa[ss; J nghy; Vw;wij Mw;Wf gupfhuk; fpilff; jj; ff; jh>

2/ jhth brhj;J gpujpthjpf;F ghjj; pagg; ll; jy;y fpua xg;gej; k ; nkhroahf jahupff; gg; l;Lss; jhff ; TwtJ rupah>

3/ thjpf;Ff; fpilff; fT; oa ,ju gupfhu';fs;

vdd; >”

5. On the side of the respondent he had examined P.Ws.1 and 2 and marked Exs.A1 to 3. On the side of the appellant, he had examined D.Ws.1 and 2 and marked Exs.D1 to 4. On a perusal of oral and documentary evidences, the Trial Court found that the respondent is not entitled for the relief of specific performance and he is entitled for an advance amount which was paid by him and partly decreed the suit. Aggrieved by the same, the appellant preferred appeal and the same was also dismissed confirming the Judgment and Decree passed by the Trial Court. Hence, this second appeal.

6. The appellants raised the following substantial questions of law, “1. Whether the Lower Appellate Court is justified in confirming the Judgment and decree of the Trial Court? 2. Whether Courts below are justified in applying the principles of equity without considering the oral and documentary evidences filed by appellant/defendant herein ?

3. Whether the Courts below have given valid reasons for coming to the conclusion that the respondent/plaintiff is entitled to recover the amount in terms of Ex.P1 Sale Agreement which is in respect to the pro-notes for the purchase of motor cycle?

4. Whether the Courts below are concurrently failed to place reliance on the evidence of PW-2 which evinced the mala-fide intention of the plaintiff who had written incomplete words in the Sale Agreement resulting in decreeing the suit?

5. Whether the Courts below are justified in shifting the burden of proof on the defendant when the plaintiff had not exhibited documentary evidences to substantiate his claim of specific performance?

6. Whether the presumptions and assumptions of the Courts below without giving any proper reasoning and valid evidence lead to a wrong conclusion in decreeing the suit?

7. Any other substantial question of law that may arise for c