- (1.) IN these two appeals the parties are same. The defendant is the appellant in both the appeal A.S.No.1982 of 1982 is against the judgment and decree in O.S.No.1547 of 1978 on the file of the Sub Court, Erode, and A.S.No.225 of 1981 is against the judgment and decree in O.S.No.13 of 1978 on the file of the Sub Court, Erode. Both the suits were tried together and a common judgment was rendered in both the suits on 10.3.1980.
(2.) O.S.No.547 of 1978 is for possession of the suit properticsof l0.32 acres of nanja lands. O.S.No.l3 of 1978 is for recovery of Rs. 10,416.66 towards past mesne profits in relation to the same suit property for the period from 10.12.1976 till the date of suit, viz., 18.1.1978 with interest and for future mesne profits till date of realisation. . The respondent-plaintiffs case is as follows: "The defendant entered into a sale agreement Ex.B-1, dated 9.9.1976 for purchase of the above said suit properly with the plaintiff, the owner of the said property for a sale consideration of Rs.1,00,000. The defendant paid a sum of Rs.25,000 as advance under the said sale agreement and he was also put in possession on that day itself and under the agreement; the sale has to be completed within 3 months. The intention of the parties was to treat the above said time fixed as the essence of the contract. But the defendant defaulted in paying the balance sale price of Rs.75,000. Therefore the plaintiff gave Ex A-1 notice dated 22.2.1977 to the defendant cancelling the agreement and calling upon him to deliver possession of the said property to the plaintiff. The defendant received the notice, but did not reply. However, the plaintiff was advised to give the defendant a reasonable time for compliance of the contract, to avoid technical objections. Accordingly, the plaintiff gave Ex.A-3 notice through his advocate, on 11.6.1977 calling upon the defendant to pay the balance price with interest within a week and get the sale deed executed by the plaintiff. The defendant received the said notice. But even to the said notice, there was no reply, nor did he comply with the demand mentioned therein. Thus the defendant has committed breach of contract and so he is in unlawful possession and is liable to pay the abovesaid mesne profits at the rate of Rs.10,000 per annum. Hence, the above two suits were filed, one for possession and another for mesne profits.
(3.) THE plea of the defendant is as follows: THE defendant was always ready and willing to perform his part of the contract and he has not committed breach of contract. Several other persons were setting up title in themselves over the suit property and so the plaintiff should satisfy that he is the sole owner of the suit property. THE parties did not treat the time as the essence of the contract. After the receipt of notice from the plaintiff, the defendant met the plaintiff and informed him of the claim made by certain other persons and the plaintiff promised to look into the matter and set it right and so the defendant did not commit default. THE plaintiff is not entitled to unilaterally cancel the contract and seek possession.;