JUDGMENT

This Second Appeal arises out of the Judgment and decree of the learned Principal District Judge of Krishnagiri, dated 18.01.2013 in A.S No.51 of 2012 reversing the Judgment and decree of the learned Principal Subordinate Judge of Krishnagiri, dated 04.04.2012 in O.S No.76 of 2009.

2.The appellant herein is the second defendant in suit O.S No.76 of

2009 on the file of the Sub Court Krishnagiri, filed by the second defendant herein/plaintiff for the relief of specific performance directing the defendants to execute the sale deed as per the sale agreement dated 30.03.2007.

3. The parties are noted as per the rank in the original suit.

4. The first defendant remained ex-parte and 2nd defendant/purchaser contested the suit that the sale agreement is created by the first defendant along with plaintiff in order to defeat his right under the sale deed. There two witnesses and 5 documents were marked on the side of the plaintiff and on the other side two witnesses and two documents were marked. C.W.1 also marked.

5. The trial Court framed the six issues. In the result, the trial Court declined the relief claimed by the plaintiff and given the alternative relief as to refund of the advance with interest as alternative remedy. Having aggrieved by the Judgment the plaintiff filed an appeal in A.S No.51 of 2012 before the District Court Krishnagiri, wherein, the Court concluded that under Section 22(2) of Specific relief Act, the Court has no power to grant alternative remedy, unless it is specifically claimed, thereby, the Lower Appellate Court set aside the findings of the trial Court and allowed the appeal and held that the plaintiff is entitled for relief of specific performance and directed the first defendant to execute the sale deed as per the agreement.

6. Aggrieved by the said findings, the 2nd defendant preferred this appeal before this Court and the same was admitted on the following questions of law:

i) Whether lower Appellate Court was right in holding that the respondent was ready and willing to perform his part of the contract, when no attempt was made by him to get the sale deed executed for nearly two years?

ii) Whether Lower Appellate Court was right in holding that the appellant was not a bona-fide purchaser?

Iii) When the evidence on record, in particular, the evidence of the first defendant as C.W.1, who has sold the suit property to the second defendant, would show that the suit agreement was created by him in collusion with the plaintiff and that the suit was filed to defeat the rights of the second defendant under the sale deed dated 26.09.2007, executed by the first defendant, whether the Lower Appellate Court is correct in granting the relief of specific performance, which is contrary to the evidence on record?

7. The brief facts of the case are as follows:

As per the plaintiff's submission the suit property originally belonged to one Subramaini and he appointed one C.Madeshwaran/1st defendant as Power Agent on 23.11.2005. Based on the said power deed C.Madeshwaran executed a sale agreement dated 30.03.2007 in favour of the plaintiff for sale consideration of Rs.1,50,000/-. Then, he received a sum of Rs.1,00,000/- as advance and agreed to receive the balance sale consideration of Rs.50,000/- within two years and executed the sale deed in favour of the plaintiff. Thereafter, the plaintiff offered balance sale consideration to C.Madehswaran and asked him to execute the sale deed as per the sale agreement for the suit property in his favour. While that being so, on 26.09.2007, the first defendant created sham and nominal deed in favour of the 2nd defendant by ignoring the above said sale agreement dated 30.03.2007, despite the plaintiff was ready and willing to pay the balance sale consideration within the stipulated period of two years. Hence, he issued notice to the 1st defendant as well as 2nd defendant/purchaser and they replied to the notice. Hence, he filed the suit. The 1st defendant remained ex- parte. The 2nd