JUDGMENT: The Second Appeal No.435 of 1989 has been filed against the judgment and decree in A.S.No.67 of 1987 on the file of the Additional District Judge, Coimbatore which in turn was filed against the judgment and decree in O.S.No.3575 of 1981 on the file of the District Munsif Court, Coimbatore. 2. The Second Appeal No.436 of 1989 has been filed against the judgment and decree in A.S.No.66 of 1987 on the file of the First Additional District Judge, Coimbatore which in turn was filed against the judgment and decree in O.S.No.799 of 1981 on the file of the District Munsif Court, Coimbatore. 3. The parties in both the appeals are same and the dispute is also in respect of the same property. In fact there was joint trial and common evidence were recorded in both the suits. 4. The suits were disposed of by a common Judgment so also the first appeals, hence these second appeals can also be disposed of by a common Judgment. For the sake of convenience this Court intends to deals with the matter with reference to the cause title given in S.A.No.436 of 1989. 5. The admitted facts between the parties can be narrated thus; The first respondent is the son of the second respondent and they own the suit property among other properties. The plaint schedule property is a vacant site roughly an extent of 8 1/4 cents comprised in Survey No.298/1 in Ganapathy Town Panchayat, Coimbatore Taluk. On 27.6.1973 the second respondent herein agreed to sell the suit property to the first appellant at the rate of Rs.335 per cent and on the same day the sale agreement was reduced to writing and the second respondent received an advance amount of Rs.750 and in fact, the first appellant was also put in possession. As per the agreement the first appellant agreed to pay the balance of sale consideration to the second respondent and on receipt of the same the second respondent should execute the sale deed. On 16.7.1973 one Kandasamy Gounder, who is none else than the brother of the second respondent herein along with his wife filed a suit in O.S.No.1252 of 1973 on the file of the District Munsif Court, Coimbatore, against the first appellant and second respondent. On 16.7.1973 one Kandasamy Gounder, who is none else than the brother of the second respondent herein along with his wife filed a suit in O.S.No.1252 of 1973 on the file of the District Munsif Court, Coimbatore, against the first appellant and second respondent. The prayer in the suit was with reference to two items and one among being a plot of land 27 feet by 230 feet comprised in Survey No.298. 6. The grievance of the plaintiff namely Kandasamy Gounder in that case was that the first appellant and the second respondent were attempting to trespass in the portion of the northern side of the suit properties namely to a width of 27 feet north south to the entire east west boundary measuring 230 feet. The relief sought for in the said suit was to restrain the first appellant and second respondent by means of permanent injunction from encroaching to a width of 27 feet north south and 230 feet east west on the northern boundary and their share in suit Survey No.298. 7. It may be recalled that the property concerned in these present appeals are comprised in Survey No.298/1. The two properties namely Survey No.298 and 298/1 are adjoining properties. Along with the suit the plaintiff namely Kandasamy Gounder also filed I.A.No.915 of 1973 in the said suit under O.39, Rules 1 and 2 of the Civil Procedure Code praying the Court to grant an order of temporary injunction restraining the defendants in the suit namely first appellant and second respondent herein from in any way encroaching to a width of 27 feet north south and 230 feet east west on the northern boundary of his share (Kandasamy Gounder) in survey No.298. The learned District Munsif granted an interim injunction. 8. The first appellant herein issued a notice dated 16.12.1973 through his counsel to the effect that the second respondent namely Narayanasamy Gounder earlier when contacted agreed to settle the matter with Kandasamy Gounder and on that assurance, the first appellant spent about a sum of Rs.7,000 for putting up a superstructure and that however no steps had been taken by the second respondent to settle the matter. The notice further reads that the time prescribed to complete the sale transaction was coming to a close and that further he had always been ready and willing to perform his part of contract. The notice further reads that the time prescribed to complete the sale transaction was coming to a close and that further he had always been ready and willing to perform his part of contract. The notice concludes by finally calling upon the second respondent to put an end to the litigation and to inform him (first appellant) so that the sale transaction could be completed. A reply was sent by the second respondent for this. In the reply the second respondent mentioned that unless and until the balance amount of Rs.1,250 is paid he would not be entitled to ask for the execution of the sale deed and that as and when paid the sale deed will be executed. For this reply a rejoinder dated 27.12.1973 was sent by the second respondent. The first appellant in the said notice reiterated that he is prepared to get the sale deed executed on payment of money as contemplated in the agreement provided the second respondent able to get a clear title to the property in question and that he has been always ready and willing to perform his part of contract. On 7.2.1974 the respondent namely the son and father partitioned their properties and in which the plaint schedule property fell to the share of first respondent namely the son. 9. It appears that on 11.4.1974 the Executive Officer of the Ganapathy Panchayat Union sent a communication to the appellants herein to the effect that the first respondent had objected to, for the assessment of house tax in the name of the appellants hence the appellants can appear before him and produce the title deeds failing which the assessment for the property will be made in the name of the first respondent herein. 10. After a couple of years i.e., on 16.2.1976 the suit filed by the Kandasamy Gounder against the first appellant and second respondent was dismissed. Aggrieved by that the said Kandasamy Gounder filed an appeal in A.S.No.103 of 1976 on the file of the Sub-Court, Coimbatore. The said appeal was also dismissed on 28.2.1977. 10. After a couple of years i.e., on 16.2.1976 the suit filed by the Kandasamy Gounder against the first appellant and second respondent was dismissed. Aggrieved by that the said Kandasamy Gounder filed an appeal in A.S.No.103 of 1976 on the file of the Sub-Court, Coimbatore. The said appeal was also dismissed on 28.2.1977. Nearly more than two years thereafter the first respondent sent a notice dated 17.9.1979 to the appellants herein pointing out that they had failed to perform their part of contract under the agreement dated 27.6.1973 and alleging that at that stretch of time they had no right to enforce the said agreement as they had failed to perform their part of contract within the stipulated period called upon the appellants to deliver possession of the properties along with damages at the rate of Rs.30 per month. It was specifically mentioned therein that failure to perform their part of contract under the agreement within the period would amount to waiver or abandonment of right if any. For this notice a reply was sent by the appellants herein calling upon the respondents to perform their part of contract contending that after the disposal of the appeal A.S.No.103 of 1976 on the file of the Additional Sub-Court, Coimbatore they had been making repeated demands to the respondents to perform their part of contract. 11. On 15.11.1979 the first respondent herein filed a suit against the appellants herein as well as the second respondent namely Narayanasamy Gounder. The relief that was sought for declaration of his title to the suit properties; for delivery of possession and for damages etc. The appellants herein filed I.A.No. 574 of 1981 in O.S.No.799 of 1981 under O.8, Rule 6(A) of the Code of Civil Procedure seeking permission to make a counter claim of specific performance dated 27.6.1973. That application was resisted by the second respondent herein. The learned District Munsif dismissed the said application holding that O.8, Rule 6(A) is applicable only to money suit and that being so the appellants herein cannot invoke the said possession in that suit and make a counter claim of specific performance of the agreement in question. The appellants did not take up the matter further. The learned District Munsif dismissed the said application holding that O.8, Rule 6(A) is applicable only to money suit and that being so the appellants herein cannot invoke the said possession in that suit and make a counter claim of specific performance of the agreement in question. The appellants did not take up the matter further. Subsequently, thereafter i.e., on 12.11.1981 the appellants filed O.S.No.3570 of 1985 on the file of the District Munsif, Coimbatore against the respondents herein praying the Court to grant a decree directing the respondents to execute a sale deed in respect of suit property in their favour as per the terms of the agreement dated 27.6.1973 and for other reliefs. 12. The learned District Munsif tried both the suits namely first one filed by the first respondent herein namely O.S.No. 799 of 1981 as well as the second suit filed by the appellants namely O.S.No.3575 of 1985. The learned District Munsif decreed the suit O.S.No.799 of 1981 and dismissed the suit O.S.No.3575 of 1985. 13. Aggrieved and disappointed appellants filed two appeals viz., A.S.Nos.66 and 67 of 1987. The appellate Court also concurred with the findings of the trial Court and dismissed the Appeals. Now the appellants have filed these two appeals before this Court. As mentioned already in the opening itself the above facts are not disputed between the parties. 14. The learned counsel appearing for the appellants put forth two fold submissions namely; (a) immediately after the agreement dated 27.6.73 a suit was filed by the brother of the second respondent and there was a cloud over title to the suit property and things became clear and certain, only by the appellant Court dismissing the appeal A.S.No.103 of 1976 on 28.2.1977. In these circumstances of the case, the period of 180 days stipulated in the said agreement has to be ignored and it has to be treated that no time was fixed in the suit agreement. The appellants would be entitled for a period of three years from the date when the respondents refused specific performance of the agreement such refusal was only under Ex.B.19 namely a notice issued by the first respondent to the appellants dated 17.9.1979. Hence, in fact as much as the appellants filed the suit for specific performance on 19.11.1981 it is well within a period of three years from the date in question namely 17.9.1979. Hence, in fact as much as the appellants filed the suit for specific performance on 19.11.1981 it is well within a period of three years from the date in question namely 17.9.1979. (b) the appellants were put in possession pursuant to the agreement and they have been willing to perform their part of contract and in fact they made repeated requests ever since the disposal of the appeal A.S.No. 103 of 1976 filed by Kandasamy Gounder brother of the second respondent. In these circumstances even assuming they are not entitled to pray the Court to grant a decree for specific performance of calling upon the first respondent to execute the sale deed they are entitled to defend the possession by invoking the doctrine of part performance under Sec.53-A of the Transfer of Property Act. 15. Before dealing with the above two submissions, the Court desires to refer to the legal position, which has to be borne in mind. To sum up, (a) In a transaction of sale of immovable properties, time is not the essence of contract. Smt.Indira Kaur and others v. Shri Sheo Lal Kapoor, A.I.R. 1988 S.C. 1074; Govind Prasad Chaturvedi v. Hari Dutt Shastri, A.I.R. 1977 S.C. 1005. (b) In the case of sale of immovable property, there is no presumption as to time being the essence of the contract. Even if time is not essence of the contract, the Court may infer that it may be performed in a reasonable time under certain circumstances. Chand Rani v. Kamal Rani, A.I.R. 1993 S.C. 1742. (c) The question whether the relief of specific performance of contract for the purchase of immovable property shall be granted or not, always depends upon the facts and circumstances of each case and the court would not grant such relief if it gives the plaintiff and unfair advantage over the defendant.Smt. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi, (1978)2 S.C.C. 116 . (d) The provisions of the specific Relief Act preserves judicial discretion to courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. P.V.Joseph’s Son Mathew v. N.Kuruvila’s Son, A.I.R. 1987 S.C.C 2328. (e) If a date is fixed for the performance of the contract under an agreement for specific performance, the period of limitation is three years from the said date. Only if no such date is fixed, the three year period begins to run from the date when the plaintiff has notice that the performance is refused. Where the time for performance is fixed, limitation would begin to run as from that time and the question whether time was of the essence of the contract is not relevant for determining whether column 3 to Art.54 would apply. Rajamani Ammal v. Neelambal Ammal alias Neela, (1995)2 L.W. 710 ; T.L.Muddukrishna and another v. Smt.Lalitha Ramachandra Rao, (1997)2 L.W. 809. 16. Now let this Court proceed to consider two question raised on behalf of the appellant. 17. At this juncture, the following relevant dates have to be borne in mind for easy understanding and appreciation: 1. 27.6.1973 Date of agreement 2. 16.7.1973 Suit filed by Kandasamy Gounder against the first appellant and second respondent 3. 28.7.1977 Dismissal of A.S.No.103 of 1976 4. 17.9.1979 Notice by first respondent claiming vacant possession 5. 30.10.1979 Reply by first respondent 6. 15.11.1979 Suit for declaration and possession filed by the first respondent (O.S.No.799 of 1989) 7. 16.9.1981 I.A.No.574 of 1981 making a counter claim filed by the appellants in the suit filed by the first respondent 8. 12.11.1981 Suit for specific performancefiled by the appellants 18. The suit agreement is dated 27.6.1973. The agreement relates to sale of immovable properties viz., a small plot of land. The agreement stipulates a period of 180 days for the performance of the contract by the respective parties. The question is whether this clause viz., stipulating a date before which the transaction is to be completed, has to be ignored in view of the subsequent developments viz., filing of the suit by Kandasamy which was within about three weeks from the date of the agreement. The question is whether this clause viz., stipulating a date before which the transaction is to be completed, has to be ignored in view of the subsequent developments viz., filing of the suit by Kandasamy which was within about three weeks from the date of the agreement. While the appellant would contend that the said clause has to be ignored and the agreement has to be treated as to one where parties have not fixed any date, within which the contract has to be performed and that the three years period is to be calculated from the date of refusal by the first respondent viz., in this case 17.9.1979, the first respondent would contend that the mere institution and pendency of the suit in O.S.1252 of 1973, so long as there was no order of injunction prohibiting the alienation, would not arrest running of time and in that view of the matter, the suit for specific performance, the first appellant could have filed only within three years from the date stipulated. 19. This Court finds substances in th submissions made by the Counsel for the first respondent. The suit agreement was on 27.6.1973. The agreement stipulated a period of 180 days for the performance of the contract. So one has to calculate three years after the completion of 180 days to find out the date within which the suit for specific performance could be filed. Though the suit O.S.No.1252 of 1973 was filed by one Kandasamy, brother of the second respondent, he did not obtain any interim order which could have prevented the second respondent transferring the property in question to the first appellant. Furthermore in the suit the plaintiff did not claim title in the property which is the subject matter of this appeal but only complained that first appellant and the second respondent are committing trespass. Mere pendency of the suit O.S.No.1252 of 1973 on the file of the District Munsif Court, Coimbatore and that too when there was no cloud over the title of the second respondent would not extend the period of limitation or alter the terms of the agreement. In this view of the matter, this Court holds that the period of limitation of three years has to be calculated by adding a period of three years from the last date stipulated in the agreement, for the parties to perform their part of the contract. In this view of the matter, this Court holds that the period of limitation of three years has to be calculated by adding a period of three years from the last date stipulated in the agreement, for the parties to perform their part of the contract. 20. Coming to the second question, plaintiff filed the suit for specific performance on 19.11.1981. In paragraph 21 of the plaint, first appellant stated as under: “As the suit filed by the 1st defendant’s brother Kandasamy Gounder was pending as referred to above, the plaintiffs were unable to file a suit for specific performance of the agreement dated 27.6.1973 till the end of the year 1978. Ever since the year 1979, the plaintiffs made repeated demands on the defendants, to perform their part of the agreement.” 21. There is no pleading that the first appellant was ready and willing to perform his part of the contract till the expiry of the three year limitation from the date fixed for the performance of the agreement. On the contrary, it proceeds on the basis that the period of pendency of the suit O.S.No.1252 of 1973 and the appeal A.S.No.103 of 1976 has to be excluded. Not only there is no positive pleadings but also that the pleadings and the notice sent by the first appellant dated 16.12.1973 and the inaction on his part after receiving the reply, would only go to show that the first appellant was not ready to perform his part of the contract till the end of 1978. 22. The question is whether the first appellant is entitled to retain/defend his possession under Sec.53-A of the Transfer of Property Act even after the dismissal of the suit for specific performance. In such circumstances, the Apex Court in Mohan Lal v. Mizra Abdul Gaffar, (1996)1 S.C.C. 639 held that it would be inconsistent and incompatible with his right to remain in possession under the agreement as observed in paragraphs 5 and 6 of the Judgment, which read thus: “5. The question then is whether he is entitled to retain possession under Sec.53-A. It is an admitted fact that suit for specific performance had been dismissed and became final. Then the question is whether he is entitled to retain possession under the agreement. The question then is whether he is entitled to retain possession under Sec.53-A. It is an admitted fact that suit for specific performance had been dismissed and became final. Then the question is whether he is entitled to retain possession under the agreement. Once he lost his right under the agreement by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement. Even otherwise, a transferee can avail of Sec.53-A only as a shield but not as a sword. It contemplates that where any person contracts to transfer for consideration any immovable property by writing, signed by him or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has performed or is willing to perform his part of the contract, he would be entitled to retain possession and to continue in possession which he has already received from the transferor so long as he is willing to perform his part of the contract. Agreement does not create title or interest in the property. Since the agreement has met with dismissal of the suit his willingness to perform his part of the contract does not arise.” 23. In view of the above discussion, this Court holds that the first appellant having failed in his suit for specific performance, has to concede to the claim of the first respondent, in his suit for possession. In the facts and circumstances of the case, the appellants would not be entitled for the benefits under Sec.53-A of the Transfer of Property Act. 24. In the result, there are absolutely no merits in the appeals and the same are dismissed. No costs.