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2010 DIGILAW 44 (MAD)

Athiyappan & Others v. Pavayee & Others

2010-01-03

R.MALA

body2010
Judgment :- 1. These Second Appeals are filed against the judgment and decree dated 05.09.2000 made in A.S. Nos.126 and 127 of 1999 on the file of First Additional District Judge-cum-Chief Judicial Magistrate, Salem, confirming the judgment and decree dated 30.04.1999 made in O.S. Nos.111/1995 and 168/1991 on the file of Sub-Court, Namakkal. 2. The averments in the Plaint in O.S. No.168 of 1991 (S.A. No.1334 of 2001) are as follows: (i) The suit property absolutely belonged to first defendant-Pavayee Ammal. She acquired the property by way of a settlement deed. She entered into a sale agreement with the plaintiff on 09.05.1990 for Rs.75,000/- and received an advance of Rs.10,000/-. The plaintiff agreed to pay the balance amount of Rs.65,000/-before 12.02.1991 and to obtain the sale deed executed and get it registered. The plaintiff is always ready and willing to perform his part of the contract. In the Suit for specific performance, the time is not the essence of contract. The second defendant-Kailasa Gounder and his children/defendants 3 and 4 - Murugesan and Athiyappan respectively, were aware of the sale agreement. Now, defendants 2 to 4 colluded with first defendant and created the document, as if, they are the lessees under the first defendant. So, the plaintiff was constrained to file the Suit for bare injunction not to alienate the property in O.S. No.59 of 1990 on the file of District Munsif Court, Rasipuram. (ii) The first defendant appeared before the District Munsif Court, Rasipuram and thereafter, he executed the sale deed in favour of second defendant. Defendants 2 to 4 colluded with first defendant registered the names of defendants 2 to 4 as cultivating tenants to defraud the plaintiff. (iii) Defendants 2 to 4 also filed O.S. No.72 of 1990 before the Vacation Court, Salem, and thereafter, the Suit is transferred to the file of District Munsif Court, Rasipuram, and re-numbered as O.S. No.232 of 1990, for declaration that they are the cultivating tenants and also for an injunction. (iv) The plaintiff issued a notice dated 18.01.1991 through his counsel to first defendant. After receipt of notice on 21.01.1990, the first defendant evaded to execute the sale deed. The defendants 2 to 4 are aware of the fact that the first defendant entered into a sale agreement with the plaintiff on 09.05.1990. (iv) The plaintiff issued a notice dated 18.01.1991 through his counsel to first defendant. After receipt of notice on 21.01.1990, the first defendant evaded to execute the sale deed. The defendants 2 to 4 are aware of the fact that the first defendant entered into a sale agreement with the plaintiff on 09.05.1990. Since, knowingly, the second defendant has got the sale deed executed in his favour, he and his children/defendants 3 and 4 are jointly liable to execute the sale deed in favour of plaintiff along with first defendant. Hence, the plaintiffs are constrained to file the Suit for specific performance and hence, he prayed for a decree. 3. The gist and essence of written statement filed by the first defendant in O.S. No.168 of 1991 (S.A. No.1334 of 2001) are as follows: (i) The first defendant conferred title under the settlement deed is true. There is no agreement between the plaintiff and first defendant. There is no such sale agreement dated 09.05.1990 entered into between the plaintiff and first defendant. The first defendant has not received any amount. She need not bother about the limitation and others. Defendants 2 to 4 have sent a notice to the first defendant on 02.07.1990, but, not regarding the agreement between the plaintiff and first defendant. The plaintiff has filed the Suit against the first defendant and engaged a counsel and asked him to file a vakalat. (ii) The first defendant has registered a sale deed in favour of defendants 2 to 4 on 05.02.1991. Defendants 2 to 4 also filed O.S. No.72 of 1990 before the Vacation Court, Salem, and thereafter, the Suit is transferred to the file of District Munsif Court, Rasipuram, and renumbered as O.S. No.232 of 1990, against the first defendant and her husband. The first defendant’s husband Sengopa Gounder has settled the property in favour of the first defendant after his second marriage for her life time. The first defendant’s husband has neglected her and she was helpless by anybody. Then the first defendant has orally leased out the property to defendants 2 to 4 in the January 1989 for a period of three years and received Rs.4,000/- as lease amount for the entire three years and handed over the possession to defendants 2 to 4. They were cultivating peacefully without anybody’s disturbance. Then the first defendant has orally leased out the property to defendants 2 to 4 in the January 1989 for a period of three years and received Rs.4,000/- as lease amount for the entire three years and handed over the possession to defendants 2 to 4. They were cultivating peacefully without anybody’s disturbance. The plaintiff has planned to purchase the suit property for some nominal price from first defendant without the knowledge of her husband and her daughter. The plaintiff is adjacent land owner of the suit property and he was having an idea to grab the land. After knowing this fact, defendants 2 to 4 have filed the Suit against the plaintiff, first defendant and her husband. But the first defendant has previously had an agreement with one Ponmalai on 07.03.1990 for Rs.70,000/- and she has received Rs.10,000/- as advance. After the summons has been issued to the first defendant and the plaintiff, the plaintiff has obtained the thumb impression stating that he is going to engage a counsel at Namakkal. (iii) Defendants 2 to 4 have filed a case before the Tenancy Officer, Rasipuram. They are ready to purchase the property under pre-emption. While defendants 2 to 4 are in possession already the agreement holder Ponmalai and first defendant have decided to sell the land to defendants 2 to 4 and registered the sale deed in favour of them. Then the first defendant has given her consent “No objection” to the Tenancy Officer. So, the sale deed in favour of defendants 2 to 4 is valid. The first defendant has not executed any sale agreement in favour of plaintiff. The Suit itself is infructuous. Hence, the sale agreement is fabricated and created and hence, she prayed for the dismissal of the Suit. 4. The gist and essnce of written statement filed by the fourth defendant adopted by defendants 2 and 3 in O.S. No.168 of 1991 (S.A. No.1334 of 2001) are as follows: The defendants 2 to 4 are not aware of the sale agreement dated 09.05.1990 between the plaintiff and first defendant. The defendants 2 to 4 entered into a sale agreement with first defendant in January 1989 for three years and the lease amount is fixed as Rs.4,000/- and they paid that amount. Since, the plaintiff wanted to purchase the property, he interfered with the possession and hence, the defendants 2 to 4 filed a Suit. The defendants 2 to 4 entered into a sale agreement with first defendant in January 1989 for three years and the lease amount is fixed as Rs.4,000/- and they paid that amount. Since, the plaintiff wanted to purchase the property, he interfered with the possession and hence, the defendants 2 to 4 filed a Suit. Defendants 2 to 4 came to know that the first defendant has entered into a sale agreement with one Ponmalai, so, they got the sale deed back and they compromised the matter and obtained a sale deed in favour of the second defendant on 05.02.1991 for Rs.70,000/- and hence, the second defendant is a purchaser for value, without knowledge of the previous agreement and hence, they prayed for the dismissal of the Suit. 5. The averments in the Plaint in O.S. No.111 of 1995 (S.A. No.1333 of 2001) are as follows: (i) The plaintiffs are in possession of the suit property as cultivating tenant of Item-I. Item-II of suit property stands in the name of their father Kailasa Gounder/third plaintiff. Item-II of suit property bearing S. No.144/2 is on the Northern side and the property bearing S.No.144/6 is on the Southern side and are two separate portions. In between the both said two items, Item-I of the suit property bearing S. No.144/4 is situated. So, the first defendant is owner of Item-I leased out to the plaintiffs for a period of three years. The lease is oral and the first defendant has received a sum of Rs.4,000/- as consideration for the lease of Item-I of the suit property for the period of three years. The plaintiffs have been in possession for the past 11/2 years without any disturbance or interference. (ii) The first defendant has entered into a lease agreement with the third defendant, who is the adjacent owner of the plaintiffs. To defeat the valuable right of the plaintiffs and to evict them forcibly from the place, first defendant colluded with third defendant and attempted to evict the plaintiffs unlawfully from the suit property. The defendants openly proclaimed that they would trespass into the suit property at all costs. Hence, the plaintiffs are constrained to file the Suit for declaration that they are the absolute owner of Item-II of the suit property and also for an injunction in respect of Item-I and II of the suit property and hence, they prayed for as decree. The defendants openly proclaimed that they would trespass into the suit property at all costs. Hence, the plaintiffs are constrained to file the Suit for declaration that they are the absolute owner of Item-II of the suit property and also for an injunction in respect of Item-I and II of the suit property and hence, they prayed for as decree. 6. The gist and essence of written statement filed by the third defendant in O.S. No.111 of 1995 (S.A.No.1333 of 2001) are as follows: (i) The first defendant is the owner of Item-I. After receiving Rs.10,000/- by way of advance, she entered into a sale agreement with the third defendant. She refused to rescind from the contract. The plaintiffs requested the third defendant to assign the contract in their favour for cash consideration. The plaintiffs out of jealous and ill-will, attempted to somehow grab the property and have chosen to file a false case of oral lease in their favour before the Vacation Court. After the filing of the Suit, the plaintiffs attempted to create a favourable report for Record of Tenancy Officer, Rasipuram, behind the back of third defendant. (ii) The terms of agreement dated 09.05.1990 are real and bona fide. There is an ulterior motive against the plaintiffs. The plaintiffs grievance is imaginary. Hence, he prayed for the dismissal of the Suit. 7. The Trial Court in O.S. No.168 of 1991 framed four issues and in O.S. No.111 of 1995 framed six issues and after considering the averments both in the Plaint and written statement ordered for joint trial and considering the oral evidence of PWs 1 and 2, DWs 1 to 4 and Exs.A1 to A8 and Exs.B1 to B4 and Exs.C1 and C2, decreed the Suit in O.S. No.168 of 1991 and granted a decree for specific performance and the Suit in O.S. No.111 of 1995, was dismissed with costs to third defendant. Against that, the plaintiffs in O.S. No.111 of 1995 preferred an Appeal in A.S. Nos.126 and 127 of 1999 respectively. The First Appellate Court after considering the arguments of both counsels framed six points for determination and confirmed the decree and judgment passed by the Trial Court and dismissed both the Appeals. Against that, the present Second Appeals have been preferred. 8. The First Appellate Court after considering the arguments of both counsels framed six points for determination and confirmed the decree and judgment passed by the Trial Court and dismissed both the Appeals. Against that, the present Second Appeals have been preferred. 8. At the time of admission of the Second Appeals, the following substantial questions of law were framed for consideration: i. Are the courts below justified in law in holding that the agreement under Ex.A1 is true and valid based on the evidence of PW2. A reading of which will indicate that his evidence cannot be taken as a valid piece of evidence to prove Ex.A1? ii. Whether the Lower Appellate Court is right in law in not adverting to the facts and the evidence available in this case when the said Court is the last Court as far as the appreciation of facts and evidence are concerned? iii. Are the Courts below justified in ignoring the statutory order passed under Ex.B3 and deciding the issue against the appellants herein? iv. Are the Courts below right in law in holding Ex.B2 is not a genuine sale when the sale price is the same as reflected under the alleged genuine agreement under Ex.A1 and the sale deed under Ex.B2 was admitted by the executant herself? Additional substantial question of law: “Whether both the Courts below are correct in granting decree of specific performance not considering Exs.A4, A6 and A7, since the first respondent instead of filing the Suit for specific performance filed Suit for bare injunction shows that he is not ready and willing to perform his part of contract, which is against the provision of Section 20 of Specific Relief Act?” 9. For the sake of convenience, the parties are referred as per their rank in S.A. No.1334 of 2001. 10. Substantial Question of Law Nos. i and iv and Additional Substantial Question of Law: The learned counsel appearing for the appellants would contend that Ex.A1-Sale Agreement dated 09.05.1990 was not proved by the first respondent/plaintiff and he has not examined the attestor of Ex.A1-Sale Agreement. The first respondent/plaintiff is never ready and willing to perform his part of the contract and that factum has not been considered by both Courts below. The first respondent/plaintiff is never ready and willing to perform his part of the contract and that factum has not been considered by both Courts below. He further contended that before the first appellant/second defendant purchased the property under Exs.A2 = B2 dated 05.02.1991, appellants/defendants 2 to 4 are lessees under Pavayee Ammal-DW1/second respondent/first defendant and recognising the tenancy, the names of appellants/defendants 2 to 4 have been recorded as cultivating tenants as per Ex.A3 = B3 dated 11.02.1991. So, the appellants/defendants 2 to 4 are in possession of the property. Burt, both Courts below erred in coming to the conclusion that Exs.B2 and B3 are created and concocted for the purpose of the case and to defeat the legitimate claim of the first respondent/plaintiff. To substantiate his contention, the learned counsel has relied upon the decisions of Apex Court and this Court and prayed for allowing of the Second Appeals. 11. Per contra, the learned Senior Counsel for the respondents 3 to 5, 7 and 8 would content that as per Ex.A1-Sale Agreement dated 09.05.1990, the first respondent/plaintiff entered into a sale agreement with second respondent/first defendant-Pavayee Ammal/DW1. To prove the same, PW2-Kamaraj, who is the person typed Ex.A1, was examined. There is no reason for discarding his evidence. So, the Trial Court and First Appellate Court on the basis of the evidence of PWs 1 and 2 came to the correct conclusion that Ex.A1-Sale Agreement dated 09.05.1990, was true and genuine document. He further submitted that one of the attestor is husband of Pavayee Ammal-DW1/second respondent/first defendant. The theory put forth by second respondent/first defendant-Pavayee Ammal that the first respondent/plaintiff-Venkatachalam has obtained her Left Thumb Impression stating that he is going to engage a counsel in another Suit filed by the present appellants/defendants 2 to 4, was utilized for creation of Ex.A1 was rightly disbelieved by both Courts below and it came to the correct conclusion that the first respondent/plaintiff was always ready and willing to perform his part of the contract and hence, the discretionary relief of specific performance has been granted. There is no infirmity or illegality in the judgment and decree passed by the Trial Court. Hence, he prayed for the dismissal of the Appeals. 12. There is no infirmity or illegality in the judgment and decree passed by the Trial Court. Hence, he prayed for the dismissal of the Appeals. 12. The learned Senior Counsel for the respondents 3 to 5, 7 and 8, relied upon the decision reported in U.R. Virupakshappa v. Sarvamangala and another, 2009 (2) SCC 177, and submits that since both Courts below have given a concurrent finding, as per Section 100 of C.P.C. this Court is not entitled to interfere with the findings and also to re-appreciate the evidence. To substantiate his contention, the learned Senior Counsel also relied upon the judgments of Apex Court and this Court and he prayed for the dismissal of the Appeals. 13. Now, this Court has to decide, whether both Courts below are correct in holding that Ex.A1-Sale Agreement dated 09.05.1990 is true and genuine document and first respondent/plaintiff-Venkatachalam is entitled to a decree of specific performance. 14. The first respondent/plaintiff filed a Suit for specific performance on the basis of Ex.A1-Sale Agreement dated 09.05.1990. Second respondent/first defendant-Pavayee Ammal, who is the owner of the suit property has disputed the Ex.A1-Sale Agreement dated 09.05.1990 stating that it is not a true and genuine document. In Paragraph 14 of his written statement, he has stated that the alleged sale agreement is fabricated and created for the purpose of the case. So, the burden is upon the first respondent/plaintiff to prove that Ex.A1-Sale Agreement dated 09.05.1990, is true and genuine document. To prove the same, he has examined himself as PW1 and another person, viz., Kamaraj, who typed Ex.A1 was examined as PW2. In his evidence, he has deposed about the execution of Ex.A1-Sale Agreement. 15. It is pertinent to note that one of the attestor is none other than the husband of Second respondent/first defendant-Pavayee Ammal and another attestor is one Kattiannan. It is pertinent to note that the first respondent/plaintiff has taken steps to compare the Left Thumb Impression of Second respondent/first defendant-Pavayee Ammal with Left Thumb Impression in Ex.A1. In spite of several adjournments given to second respondent/first defendant to appear before the Court and put her Left Thumb Impression, but, she has not appeared before the Court and that has been evidenced by Ex.A8. So, the evidence of PWs 1 and 2 and Ex.A8 has clearly proved that Ex.A1 – Sale Agreement dated 09.05.1990, is true and genuine. In spite of several adjournments given to second respondent/first defendant to appear before the Court and put her Left Thumb Impression, but, she has not appeared before the Court and that has been evidenced by Ex.A8. So, the evidence of PWs 1 and 2 and Ex.A8 has clearly proved that Ex.A1 – Sale Agreement dated 09.05.1990, is true and genuine. So, the Trial Court and First Appellate Court have correctly held that Ex.A1 – Sale Agreement dated 09.05.1990 is true and genuine document. 16. The learned counsel for the appellants would contend that the first respondent/plaintiff is not ready and willing to perform his part of the contract and as a subsequent purchaser, appellants/defendants 2 to 4 are entitled to question the same and for that reason, he relied upon the decision reported in Ram Awadh v. Achhaibar Dubey, 2000 (2) SCC 428 , wherein the Supreme Court has held as under: “3. In Jugraj Singh case, 1995 (2) SCC 31 , upon substantially similar facts, this Court noted Section 16(c) of the Specific Relief Act and the dictum of the Privy Council in Ardeshir Mama v. Flora Sassoon, AIR 1928 PC 208, that in a Suit for specific performance the averment of readiness and willingness on the plaintiff’s part, up to the date of the decree, was necessary. It also noted that this Court in Gomathinayagam Pillai v. Palaniswami Nadar, AIR 1967 SC 868 had held that it was for the plaintiff in a Suit for specific performance “to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail”. Jugraj Singh case, 1995 (2) SCC 31 however, held: (SCC p.32, para 5) “That plea is specifically available to the vendor/defendant. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the Suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives, but not to the subsequent purchasers.” 4. The decision in Jugraj Singh case, 1995 (2) SCC 31 , was noted by a Bench of Two learned Judges in Lakhi Ram v. Trikha Ram, 1998 (2) SCC 720 and doubted, but the Appeal there was decided on another point. 5. Section 16 of the Specific Relief Act, 1963 reads: “16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person- (a)-(b) ... … … (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.” 6. The obligation imposed by Section 16 is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A Court may not therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that he mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh case, 1995 (2) SCC 31 , is erroneous.” So, the subsequent purchaser is entitled to question the readiness and willingness to perform the part of the contract. We are of the view that the decision in Jugraj Singh case, 1995 (2) SCC 31 , is erroneous.” So, the subsequent purchaser is entitled to question the readiness and willingness to perform the part of the contract. 17. The learned counsel for the appellants relied upon the decision reported in Maria Colaco and another v. Alba Flora Herminda D’ Souza and others, 2008 (5) SCC 268 , and submits that even the concurrent judgment can be interfered with when the judgment is perverse. In the said decision, the Supreme Court has held as under: “7…..It is true normally that in the Second Appeal the High Court should not interfere on the questions of fact. But if on the scrutiny of the evidence it is found that the finding recorded by the First Appellate Court is totally perverse then certainly the High Court can interfere in the matter as it constitutes the question of law.” 18. In Narendra Gopal Vidyarthi v. Rajat Vidyarthi, 2009 (3) SCC 287 , the Supreme Court has held as under: “12. The question formulated, namely, as to whether the property in dispute is a joint Hindu family property, per se, is not a substantial question of law. The High Court, however, proceeded on the basis that if the judgment is based on no evidence or is otherwise perverse, a substantial question of law would arise for consideration. It is so but therefore also a substantial question of law must be framed. In terms of Section 100 of the Code of Civil Procedure, the High Court can entertain a Second Appeal if a substantial question of law arises for its consideration and not otherwise. 13. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and /or while arriving at the said finding, relevant admissible evidences have not been taken into consideration or inadmissible evidences have been taken into consideration. 14. We fail to understand as to on what basis, the said question of law was formulated. Before an additional question is formulated, the procedure laid down therefore must be complied with. This aspect of the matter stands concluded by this Court in Krishnan case, 2007 (12) SCC 190 , wherein it was held: (SCC pp.192-93, paras 10-11) “10. 14. We fail to understand as to on what basis, the said question of law was formulated. Before an additional question is formulated, the procedure laid down therefore must be complied with. This aspect of the matter stands concluded by this Court in Krishnan case, 2007 (12) SCC 190 , wherein it was held: (SCC pp.192-93, paras 10-11) “10. Under the amended Section 100, C.P.C., the High Court has to frame substantial questions of law and can decide the Second Appeal only on those questions framed. A perusal of the questions framed shows that no question of law was framed as to whether the finding of fact of the First Appellate Court that Lakshmi and Ramayee are one and the same person, is based on no evidence or is perverse. 11. It may be mentioned that the First Appellate Court under Section 96, C.P.C, is the last Court of facts. The High Court in Second Appeal under Section 100, C.P.C., cannot interfere with the findings of fact recorded by the First Appellate Court under Section 96, C.P.C, No doubt the findings of fact of the First Appellate Court can be challenged in Second Appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. In the present case no question was framed by the High Court as to whether the finding of the First Appellate Court that Ramayee and Lakshmi are one and the same person, is a finding based on no evidence or is perverse. Hence, the findings of the First Appellate Court that Ramayee and Lakshmi are one and the same person, could not have been interfered with by the High Court.” 19. In Dubaria v. Har Prasad, 2009 (5) CTC 563 (SC): 2009 (9) SCC 346 , the Supreme Court has held as under: “12. It was the duty of the High Court, while coming to a finding of fact or to accept the findings of the First Appellate Court, to take into consideration the record particularly the extract of Khatauni and Khewat in respect of the suit property. It was the duty of the High Court, while coming to a finding of fact or to accept the findings of the First Appellate Court, to take into consideration the record particularly the extract of Khatauni and Khewat in respect of the suit property. At the same time, in our view, the High Court had failed to take into consideration the admission made by the respondents in their evidence that the appellant was living in one room, built by one Rajjan who had executed the sale deed in favour of the appellant-plaintiff. Therefore, in our view, non-consideration of these materials on record would be a ground to set aside the judgment of the High Court because the findings of the High Court must be held to be contrary to the documents already on record. 13. That being the position, we are of the view that the judgment of the High Court passed in the aforesaid Second Appeal is liable to be set aside because the High Court, while affirming the judgment of the First Appellate Court, had ignored material, oral and documentary evidence on record, as noted hereinearlier which were material documents to arrive at a just decision in the Appeal.” 20. As per the Apex Court decisions, since, the First Appellate Court is the last fact finding Court, while confirming the decree and judgment of the Trial Court, if the finding of the Trial Court is perverse or Trial Court has failed to consider the material evidence, then in Second Appeal, the High Court has every right to re-appreciate the evidence and interfere with the concurrent findings of both Courts below. 21. The learned counsel for the appellants also relied upon the decisions reported in H.P. Pyarejan v. Dasappa (dead) by L.Rs. and others, 2006 (2) CTC 778 (SC): 2006 (3) LW 124; Inderchand Jain (D) through L.Rs. v. Motilal (D) through L.Rs., 2009 (5) CTC 365; and Embar Naidu v. Rathnam Chettiar and another, 2003 (2) CTC 385 : 2003 (1) T.L.N.J. 324, and would contend that the readiness and willingness of plaintiff is not confined only to stage of fling of Plaint, but also at subsequent stage, viz., at hearing and all along. 22. v. Motilal (D) through L.Rs., 2009 (5) CTC 365; and Embar Naidu v. Rathnam Chettiar and another, 2003 (2) CTC 385 : 2003 (1) T.L.N.J. 324, and would contend that the readiness and willingness of plaintiff is not confined only to stage of fling of Plaint, but also at subsequent stage, viz., at hearing and all along. 22. At this juncture, the learned Senior Counsel for the respondents 3 to 5, 7 and 8, relied upon the averments made in paragraph 4 of the written statement filed by Second respondent/first defendant-Pavayee Ammal, wherein, she has stated as under: “..The defendant is not bothered about the monetary condition of the plaintiff and the limitation of the agreement. While there was no sale agreement between the plaintiff and the defendant she need not bother about the limitation and others”. He has also culled out the averments made in paragraph 5 of the written statement filed by the fourth defendant/first appellant adopted by defendants 2 and 3/appellants 2 and 3, wherein, the fourth defendant has stated as follows: TAMIL 23. Drawing the attention of this Court to the above averments pleaded in the written statement filed by first defendant and fourth defendant, the learned Senior Counsel for the respondents 3 to 5, 7 and 8, would submit that Second respondent/first defendant-Pavayee Ammal, the executant of Ex.A1-Sale Agreement dated 09.05.1990 and subsequent purchaser viz., appellants/ defendants 2 to 4 have categorically stated that they are not bothered about the fact, as to, whether the first respondent/plaintiff is ready and willing to perform his part of the contract and whether he is having money to get the sale deed executed and registered in his favour. In such circumstances, the argument advanced by the learned counsel for the appellants that the first respondent/plaintiff is not ready and willing to perform his part of the contract, since, he is not possessing money – sale consideration, on the date of issuance of notice, and therefore, he is not entitled to specific performance, does not merit acceptance. 24. In such circumstances, the argument advanced by the learned counsel for the appellants that the first respondent/plaintiff is not ready and willing to perform his part of the contract, since, he is not possessing money – sale consideration, on the date of issuance of notice, and therefore, he is not entitled to specific performance, does not merit acceptance. 24. The learned Senior Counsel for the respondents 3 to 5, 7 and 8, further submits that as per the decision reported in A. Jayalakshmi & others v. M. Ramalingam, 2010 (1) LW 569 , the appellants herein/ defendants 2 to 4 have not raised such a plea before the Courts below and a new plea has been now raised before this Court, which need not be considered. As per the dictum laid down by the Supreme Court in the decision reported in Saraswati Devi Gupta v. Har Narain Johari, 2006 (1) SCC 729 , since, there is no specific plea that the plaintiff/first respondent is not ready and willing to perform his part of the contract, in such circumstances, he is not entitled to canvass the same before the Second Appellate Court. There must be specific pleading, but, there is no specific pleading, per contra, in the written statement filed by fourth defendant adopted by defendants 2 and 3, he has stated that they are not bothered about whether the plaintiff is ready and willing to perform his part of the contract. 25. The learned Senior Counsel for the respondents 3 to 5, 7 and 8 relied upon the decision reported in Satyanarayana v. Yelloji Rao, AIR 1965 SC 1405 , wherein the Supreme Court has observed that mere delay extending upto period of limitation not specific ground to refuse relief, proof of waiver or abandonment of right not precondition for its refusal. If is true that in a Suit for specific performance, the time is not the essence of contract. 26. The learned counsel for the respondents also relied upon the decision reported in Nambarukandi Marakkar v. Nallithodi Thavalaparambil Appu, AIR 1991 Kerala 1, and submits that the conduct of the plaintiff in filing the injunction Suit immediately when he came to know of the sinister motive of the subsequent purchaser would show that the plaintiff was always ready and wiling to perform his part of the contract and it was the defendant who committed breach of trust. 27. 27. In Nelson’s Law of Injunctions, 5th Edition, Volume-I, it was held as under: “The sale-deed was to be executed within one month of the decision of the suit for partition. The day that Suit was dismissed from non-prosecution, the respondent filed the Suit for an injunction restraining the vendor from transferring the property to anyone else. Soon thereafter the vendor transferred the property in favour of the appellants and, thus, prevented the plaintiff from performing his part of the contract. In these circumstances, the averment of the plaintiff that he was willing and ready to perform his part of the agreement, and was still prepared to do so, was sufficient compliance with the provisions of Section 16(c) of the Specific Relief Act, and it was not incumbent upon him to further aver that the had made a demand upon the defendant to execute the sale-deed on a particular date and to show that he had the money to offer to him on that particular date. The explanation to the said C1.(c) has further made it clear that is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money where a contract involves its payment except when so directed by the Court. Therefore, it could not be said that the plaintiff was not ready and willing within the meaning of Section 16 of the Specific Relief Act, to perform his part of the contract and, as such, was not entitled to its specific enforcement.” 28. Merely because, after the issuance of notice, the first respondent herein/plaintiff filed a Suit for bare injunction, without filing a Suit for specific performance, it does not prove that the first respondent/plaintiff was not ready and willing to perform his part of contract. Since, second respondent/first defendant-Pavayee Ammal attempted to alienate the property, the first respondent/plaintiff filed the Suit for injunction not to alienate the property, subsequently, he filed the Suit for specific performance. In such circumstances, both Courts below have considered this aspect and came to the correct conclusion that the first respondent/plaintiff is entitled to a decree of specific performance as prayed for in the Plaint. 29. The learned counsel for the respondents also relied upon the decision reported in P. Lakshmi Ammal v. S. Lakshmi Ammal and others, AIR 1991 Mad. In such circumstances, both Courts below have considered this aspect and came to the correct conclusion that the first respondent/plaintiff is entitled to a decree of specific performance as prayed for in the Plaint. 29. The learned counsel for the respondents also relied upon the decision reported in P. Lakshmi Ammal v. S. Lakshmi Ammal and others, AIR 1991 Mad. 137 , and submits that the readiness and willingness of purchaser, which was averred in the Plaint, but neither specifically denied in written statement nor deposed to by defendant, the readiness and willingness of purchaser was proved: “9. Further, the 1st respondent, as D.W.1 and the 2nd respondent as D.W.2, did not depose at all that the appellant was not ready and willing to perform the contract. In the circumstances, the contention of the learned counsel for respondents 1 and 2 that the above said readiness and willingness has not been proved, cannot be accepted. Therefore, I held that the appellant was ready and willing to perform her part of the contract.” 30. This citation is squarely applicable to the facts of the case. Because, as already discussed, even though, in the Plaint in paragraph 5, the plaintiff/first respondent herein has pleaded that he was always ready and willing to perform his part of the contract and he is having financial capacity to pay the sale consideration, but, however that has not been specifically denied by the appellants/defendants 2 to 4 in the written statement in paragraphs 4 and 5 respectively. In paragraph 5 of the plaint, the plaintiff has pleaded as under: TAMIL 31. In such circumstances, the above citation is squarely applicable to the facts of the case. The Trial Court has considered the same and came to the correct conclusion that the first respondent/plaintiff is entitled to a decree of specific performance. The Trial Court also found that Ex.A2 = B2-Sale Deed dated 05.02.1991 and Ex.B3-Proceedings of Revenue Authority recording the appellants 2 and 3/defendants 2 to 4 as cultivating tenants is only concocted and fabricated to defeat the legitimate right of the first respondent/plaintiff. 32. It is pertinent to note that as per the evidence, the first respondent herein/plaintiff has filed a suit for injunction in O.S. No.59 of 1991 on the file of District Munsif Court, Rasipuram, on 05.02.1991. 32. It is pertinent to note that as per the evidence, the first respondent herein/plaintiff has filed a suit for injunction in O.S. No.59 of 1991 on the file of District Munsif Court, Rasipuram, on 05.02.1991. After the second respondent/first defendant-Pavayee Ammal entered appearance, she sought time to file the vakalat ad written statement. The matter was posted on 13.02.1991. Before that, second respondent/first defendant-Pavayee Ammal has registered a sale deed–Ex.A2 = B2 dated 05.02.1991 in favour of first appellant/second defendant, which shows that during the pendency of the Suit only the second respondent/first defendant-Pavayee Ammal executed the sale deed. 33. It is pertinent to note that before Ex.A2 = B2 dated 05.02.1991, as per Ex.B1, the second respondent/first defendant-Pavayee Ammal has previously had entered into an agreement with one Ponmalai on 07.03.1990 for Rs.70,000/- and she has received Rs.10,000/- as advance. In Ex.A2 = B2-sale deed, dated 05.02.1991, Ponmalai also joined with Pavayee Ammal to sell the property to first appellant/second defendant, but, that Ponmalai was also not examined before the Court. So, it is painful to accept that the first appellant/second defendant is the bona fide purchaser of the property for value, without notice. 34. The evidence has clearly proved that the first appellant/second defendant-Kailasa Gounder is having knowledge about Ex.A1-Sale Agreement dated 09.05.1990 between the first respondent/plaintiff and second respondent/first defendant-Pavayee Ammal and purchased the property with the mala fide intention, so, I am of the view that the first appellant/second defendant-kailasa Gounder is not a bona fide purchaser for value, without notice. So, Ex.A2 = B2-sale deed dated 05.02.1991 is not true and valid document. So, the findings of the Trial Court and First Appellate Court are hereby liable to be confirmed. 35. In respect of Ex.A3 = B3 – Proceedings of Revenue Authority, dated 11.02.1991, the learned counsel for appellants/defendants 2 to 4 submits that the second respondent/first defendant-Pavayee Ammal has leased out the property to appellants/defendants 2 to 4 in the January 1989 for a period of three years and received Rs.4,000/- as lease amount for the entire three years and handed over the possession to defendants 2 to 4. When, the first appellant/second defendant-Kailasa Gounder wanted to purchase the property, since they are tenants, second respondent/first defendant-Pavayee Ammal has given a consent for recording the appellants 2 and 3/defendants 3 and 4 as cultivating tenants. When, the first appellant/second defendant-Kailasa Gounder wanted to purchase the property, since they are tenants, second respondent/first defendant-Pavayee Ammal has given a consent for recording the appellants 2 and 3/defendants 3 and 4 as cultivating tenants. The evidence of DW1Pavayee Ammal and DW2-Kailasa Gounder, the evidence of other witnesses, viz., DW3-Kathirvel, attestor of Ex.B1, and DW4-Sengotuvel, is not helpful to the case in hand, to conclude that first appellant/second defendant/DW2-Kailasa Gounder and his sons, viz., defendants 3 and 4 are lessees under second respondent/first defendant-Pavayee Ammal. Moreover, Ex.A3 = B3 came into existence only on 11.02.1991, but, as per Ex.A2 = B2, the first appellant/second defendant-Kailasa Gounder purchased the property on 05.02.1991, therefore, he is the owner of the property and if he is the owner of the property, what prompted him to record the names of defendants 3 and 4 as cultivating tenants for the suit property, which will prove that in one way or other, they wanted to defeat the legitimate claim of first respondent/plaintiff and hence, the appellants/defendants 2 to 4 created the document with the connivance of second respondent/first defendant-Pavayee Ammal to show that the appellants/defendants 2 to 4 are in possession of the suit property in the capacity as lessees for about 10 years. 36. Per contra, in the written statement filed first appellant/fourth defendant adopted by defendants 3 and 4, they have pleaded that from January 1989 to three years, they are tenants and the total lease amount has been fixed as Rs.4,000/-, which was paid as advance. On the basis of written statement filed b Pavayee Ammal, as per Ex.A3 = B3, dated 11.02.1991, the appellants 2 and 3/defendants 3 and 4 were recorded as cultivating tenants. But, on that date, as per Ex.A2 = B2 dated 05.02.1991, the first appellant/second defendant-Kailasa Gounder, who is the father of appellants 2 and 3/defendants 3 and 4, is the owner of the property and therefore, there is no need for him to record the names of appellants 2 and 3/defendants 3 and 4, as cultivating tenants, which has clearly proved that Exs.A2 = B2 and A3 = B3 have been concocted to defeat the rights of the first respondent/plaintiff. Hence, both Courts below came to the correct conclusion that Exs.A2 = B2 and A3 = B3 are only created for the purpose of the case. 37. Hence, both Courts below came to the correct conclusion that Exs.A2 = B2 and A3 = B3 are only created for the purpose of the case. 37. As stated supra, Ex.A1-Sale Agreement dated 09.05.1990 is true and genuine document. Ex.A2 = B2 and A3 = B3 are only created and concocted for the purpose of the case and they are not true and genuine documents. To prove the possession of appellants 2 and 3/defendants 3 and 4 as cultivating tenants, except Ex.A3 = B3, the appellants/defendants 2 to 4 have not filed any Adangal to show they are in possession of the property from January 1989 onwards. No independent witnesses have been examined to show that they are in possession as cultivating tenants. In such circumstances, the Trial Court and First Appellate Court, came to the correct conclusion that the first respondent/plaintiff is entitled to a decree of specific performance. The substantial questions of law Nos. i to iv and additional substantial question of law are answered accordingly. 38. For the foregoing reasons, the decree and judgment passed by both Courts below does not warrant any interference and the same are liable to be confirmed and the Second Appeals are liable to be dismissed. 39. In fine,- Both the Second Appeals are dismissed. The decrees and common judgment passed by both Courts below are hereby confirmed. Three months time is granted for execution of sale deed. There is no order as to costs.