Sadasivan, (Died; Lrs Impleaded) vs Reji Mon

Sathish Ninan, J

The suit for specific performance of an agreement for sale was decreed by the trial court. The defendants are in appeal.

Ext.A1 is the agreement dated 17.08.2003 which is sought to be specifically enforced. The extent of property is stated as 12.5 cents. The consideration fixed is ` 25,000 per cent. An amount of ` 1 lakh was paid as advance sale consideration. The period fixed for performance is three months.

The plaintiff alleges that, on measurement it is found that the property has an excess extent of one cent, and that the excess land is also liable to be conveyed on the basis of Ext.A1 agreement.

The defendants contended that the plaintiff was entitled to get sale deed executed in respect of the 11.5 cents agreed to in Ext.A1 only. The claim over the excess land was denied. It was also contended that the plaintiff did not have sufficient funds to go ahead with the transaction, which resulted in its breach.

The trial court held that the plaintiff is entitled for conveyance of the excess land of 1 cent also. The defence plea that the plaintiff did not have sufficient funds, was negatived.

I have heard the learned counsel on either side.

The points that arises for determination are :-

(i) Is the plaintiff entitled for specific performance of Ext.A1 agreement by including the excess area of one cent found on measurement, in addition to the extent mentioned therein?

(ii) Is the finding of the trial court with regard to the financial capacity of the plaintiff, sustainable on the evidence?

(iii) Was the trial court right in having exercised its discretion under Section 20 of the Specific Relief Act to grant a decree for specific performance?

Ext.A1 agreement does not contain a schedule describing the property. As per Ext.A1, the defendants agreed to convey to the plaintiff the 11.500 cents of property in Sy. 812/A-4-4 which belong to them as per Ext.A2 Sale Deed No.2463 dated 30.08.1988. As per Ext.A2 Sale Deed, the defendants obtained title over 11 cents and 500 square links of property. On measurement it was found that the property has an excess extent of one cent. Whether the plaintiff is entitled for conveyance of one cent also is covered under Ext.A1 agreement, is the issue.

Ext.A2 Sale Deed is the document under which the defendants got title over the property. It is the property obtained by the defendants under Ext.A2 Sale Deed that is agreed to be conveyed to the plaintiff. Ext.A1 does not indicate that it is a portion of the property belonging to the defendants that is agreed to be sold or that any portion is being retained by the defendants. The eastern boundary of the property obtained by the defendant under Ext.A2 is described therein as “tImcn-b hc¼v”. On the eastern side of the property of the defendants is a “thodu”. In Ext.A1 agreement though the extent of property is mentioned as 11.5 cents, as noticed first above, the value of the property is fixed on centage basis and the total consideration payable is to be ascertained based on the measurement. The property agreed to be conveyed being the one obtained by the defendants under Ext.A2 Sale Deed and on measurement it having been found that there is an excess extent of one cent, the plaintiff is entitled for conveyance of the said extent also for consideration to be payable at rate as fixed in Ext.A1.

The learned counsel for the appellants would contend that, consequent on the inclusion of the excess extent in the plaint schedule there is a change in the subject matter from that covered under Ext.A1 agreement. Relief of specific performance is sought in respect of a different subject matter, it is argued. I am unable to agree with the contention. This is for the reason that, what is agreed to be conveyed to the plaintiff under Ext.A1 agreement is, the property obtained by the defendants under Ext.A2 Sale Deed which lies within the boundaries as mentioned in Ext.A2 Sale Deed. Total extent was to be ascertained on measurement and the consideration paid on centage basis. As noticed, the difference in extent is only one cent. Therefore, the contention of the appellants that the property in Ext.A1 agreement and as included in the plaint schedule are different, cannot be sustained.

Ext.A1 agreement contain a recital that, property is to be got measured and a basement to be constructed at the expense of the plaintiff and under the supervision of the defendants. On construction, the property found to be available was to be sold at the rate as fixed in the agreement. It is the plaintiff's case that, pursuant to the agreement the property was measured and basement constructed on all the four sides. However, the defendants unilaterally put up another basement on it's eastern side, further towards the west of the original basement, excluding the excess extent lying adjacent to the eastern “thodu”. The property was measured and basement constructed at the expense of the plaintiff in tune with the terms of Ext.A1 agreement. The defendants would on the other hand contend that it were they who constructed the basement and not the plaintiff. The Commissioner's report Ext.C1 mentions about the basement constructed at the eastern extremity of the property which includes the excess extent. It is also reported about the existence of another basement further to its west and excluding the excess extent. It is the term of Ext.A1 agreement that the property is to be got measured and basement constructed by the plaintiff at his expense and under the supervision of the defendants. Under such circumstances, the contention of the defendants that the entire basement was put up by them, cannot be accepted. This is more so in the absence of any evidence in the said regard. The Commissioner having noticed the basement constructed at the eastern extremity of the entire property, the plaintiff's case that the defendants later put up a further basement excluding the excess extent, is probable. Though the issue relating to putting up of the basement, by itself, is not conclusive or decisive, it is a circumstance to indicate that the property was measured and its boundary was originally fixed extending up to the eastern extremity inclusive of the excess extent.

Thus the circumstances involved also justify the conclusion that the plaintiff is entitled for conveyance of the excess extent of one cent also under Ext.A1 agreement. The finding of the trial court in the said regard is justified. Point no.1 is answered accordingly.

Though the defendants have denied the financial capacity of the plaintiff, the plaintiff has produced Exts.A9 to A12 fixed deposit receipts in the name of his wife to prove that he is possessed of sufficient funds to go ahead with the transaction. The contention of the defendants is that, those deposits are not in the name of the plaintiff and therefore, it cannot be said that the plaintiff was possessed of sufficient funds. There is no case that the plaintiff and his wife are not on good terms. The very fact that the plaintiff has produced the fixed deposit receipts in the name of his wife by itself show the relationship between them and also the availability of the funds with the plaintiff. Hence the said contention was rightly repelled by the trial court. Point no.2 is answered as above.

It is next argued by the learned counsel for the appellants that, Ext.A1 was entered into at a time when the defendants were in need of money in connection with the marriage of their daughter. The plaintiff having failed to comply with the terms of the agreement, the defendants were put to great injury. Discretion is to be exercised against the plaintiff and the relief for specific performance may be declined, it is urged. It is important to note that, the contention as above never found a place in the written statement. It is true that PW1 admitted that the marriage of the defendants' daughter was held during the said period. However, it is to be noticed that the marriage was on 24.08.2003 and Ext.A1 agreement was entered into only on 17.08.2003. While an amount of ` 1 lakh was paid towards advance sale consideration, the period fixed for performance was three months. There is no case that between the periods 17.08.2003 and 24.08.2003 any further amounts were advanced to the defendants nor was any demand to make any further payment. Moreover, from the facts as noticed earlier, it is evident that the defendants were responsible for the non-performance of the contract. On the circumstances as above, there is no reason to decline the relief of specific performance. The exercise of discretion by the trial court to grant a decree for specific performance, is found to be just and proper. Point no.3 is thus answered in favour of the plaintiff.

The judgment and decree of the trial court warrants no interference. The appeal fails and is dismissed. No costs.