BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.11.2023 CORAM THE HONOURABLE MRS.JUSTICE S.SRIMATHY S.A(MD)No.144 of 2017 and C.M.P(MD)No.2268 of 2017 Natarajan S/o.Ramaiyah Rep.by his Power Agent Jeyasankar, S/o.Natarajan ...Appellant / Respondent / Plaintiff vs

1.Mary

2.Juliet Anthonyraj ...Respondents / Appellants /

Defendants PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decreetal order dated 28.09.2016 passed by the Principal District Court, Thanjavur made in A.S.No.57 of 2012, by modifying the Decree and judgment dated 24.02.2012 passed in O.S.No.1 of 2010 on the file of the Additional Sub-Judge, Thanjavur.

For Appellant : Mr.G.Karnan For Respondents : Mr..A.Ebenezer

O R D E R

The suit in O.S.No.1 of 2010 has been filed by the plaintiff / appellant for specific performance directing the defendants / respondents to receive the balance sale consideration and to execute the sale deed or alternatively to pay the advance amount of Rs.1,00,000/-.

2. The case of the plaintiff is that, the defendants are the owners of the property. In order to develop the land and divided the land into housing plots, they have taken steps, but the defendants were not having liquid cash, hence, the plaintiff agreed to purchase the land from the defendants. In view of the above, on 27.03.2008 the plaintiff and the defendants entered into a sale agreement with regard to the suit property. The said sale agreement was marked as Ex.A1 and the sale price was fixed at Rs.2,44,150/-. The plaintiff has paid a sum of Rs.60,000/- as advance and subsequently, on 15.07.2008 the plaintiff had paid a sum of Rs.50,000/- as part of balance amount for sale consideration and has also made an endorsement in the sale agreement. Subsequently, the plaintiff was ready and willing to pay the balance amount, but the defendants have refused to receive the balance sale consideration and to execute the sale deed. Therefore, the plaintiff has sent a legal notice on 20.11.2009 calling upon the defendants to execute the sale deed after receiving the balance sale consideration. After receiving the notice the defendants sent a reply with denying the execution of the sale agreement as false allegation.

Therefore, the plaintiff has preferred the present suit.

3. The contention of the defendants is that in order to develop the land, the defendants had borrowed a sum of Rs.20,000/- from the plaintiff and after sometime, they were ready and willing to pay back the amount along with interest in cash, but the plaintiff had refused to receive the same and demanded to execute the sale deed regarding the plots. Hence, the dispute arose between the plaintiff and the defendants.

4. The trial Court has allowed and decreed the suit. Aggrieved over the said judgment and decree, the defendants have preferred an appeal in A.S.No. 57 of 2012 before the Principal District Court, Thanjavur. The Appellate Court has reversed the said judgment and decree. Aggrieved over the same, the plaintiff is before this Court raising the following substantial question of law:

1. Whether the Lower Appellate Court finding is correct when the execution of document itself is admitted by the Defendant?

2. Whether the Lower Appellate Court finding that the plaintiff has not proved his case is correct, when the plaintiff has examined the PW 2 and PW3 who are all attesting witnesses?

3. Whether the Lower Appellate Court finding that the burden of proof will not shift to defendants is correct even after the examination of PW 2 and PW3?

5. The Appellate Court has relied on Ex.A1 and has held that the plaint has not stated the details of execution of Ex.A1. Also the P.W.1 who is the plaintiff’s son had not stated the details of execution of Ex.A1 in chief examination. However, in the cross-examination, the plaintiff's son, has stated that the agreement was entered into in the year 2007 itself but the actual execution happened on 21.03.2008 in the defendant's house. Taking such