The main legal point established in the judgment is the validity and enforceability of the agreement to sell (Ex.A1) in accordance with the provisions of Sections 91 and 92 of the Indian Evidence Act.

1. This second appeal is focussed by the plaintiff, animadverting upon the judgement and decree dated 30.6.2008 passed in A.S.No.30 of 2008 by the Additional District Court/Fast Track Court No.IV, Bhavani, reversing the judgement and decree dated 30.11.2007 passed by the Sub Court, Bhavani, in O.S.No.246 of 2000, which was filed for specific performance of the agreement to sell. For the sake of convenience, the parties are referred to here under according to their litigative status before the trial Court.

2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus:

The appellant/plaintiff filed the suit O.S.No.246 of 2000 of before the Subordinate Judge, Bhavani, seeking specific performance of the agreement to sell, which was decreed. However, the first appellate Court reversed the judgement and decree of the trial Court for specific performance, by allowing the first appeal A.S.No.30 of 2008, but by ordering refund of the amount paid by the plaintiff to the defendants with interest.

3. Being disconcerted and aggrieved by the said judgement and decree of the first appellate Court, the plaintiff filed this second appeal on various grounds and also suggesting some substantial questions of law.

4. After hearing for some time the arguments on both sides, this Court felt that with the consent of both sides, this matter could be disposed of finally by framing the following substantial questions of law

"1. Whether the First Appellate Court was justified in ignoring Ex.A1, which is a registered agreement to sell and whether such view of the First Appellate Court is against Section 91 and 92 of the Indian Evidence Act?

2. Whether the First Appellate Court was justified in reversing the Judgment of the Trial Court in regard to ordering specific performance on mere probabilities?"

5. The learned counsel for the plaintiff would submit that even though there is no prayer alternis visibus for refund of the amount paid by the plaintiff to the defendants, the first appellate Court, on its own accord, ordered refund, without even creating charge over the suit property; the defendants, who entered into a registered agreement to sell with the plaintiff, cannot, as per Sections 91 and 92 of the Indian Evidence Act, veer round and take pleas quite antithetical to what they committed themselves in black and white by having a volte face; absolutely there is no indication, as per their own plea, that they paid interest for the alleged loan amount; the appellate Court, on improbabilities, assuming as though there are probabilities, reversed the reasoned judgement of the trial Court and accordingly prayed for setting aside the judgement and decree of the first appellate Court.

6. Remonstrating and refuting the arguments of the learned counsel for the plaintiff, the learned counsel for the defendants would advance his argument, the gist and kernal, the pith and marrow of it could be portrayed to the effect that it is not as though the first appellate Court was unable to see the wood for tree or without au fait with law or au courant with facts, simply reversed the judgement of the trial Court; the reality involved in the transaction was seen by the first appellate Court, which the trial Court failed to delve deep into the factual and evidentiary aspect and cull out the truth.

7. Indubitably and indisputably, incontrovertibly and unassailably Ex.A1 is the registered agreement to sell dated 30.8.1999, which emerged between the plaintiff and the defendants, whereby the latter agreed to sell in favour of the former the suit property for a total consideration of Rs.1,25,000/- and out of which, Rs.1,00,000/- was paid on 30.8.1999 itself and part of that amount was utilised for discharging the mortgage loan created by the defendants, relating to the suit property, in favour of the bank concerned on 30.8.1999 itself, the Bank mortgage dues were paid