DORAISAMI GOUNDER Vs. PACHAMUTHU GOUNDER

JUDGEMENT

(1.) DEFENDANT is the appellant in this Second Appeal against the reversing judgment in A.S. No. 125 of 1981 on the file of the District Court at Erode, which has set aside the dismissal of O.S. No. 325 of 1980 on the file of Sub Court, Gobichettipalaym, filed by the plaintiff respondent for specific performance of Ex. A-1 sale agreement dated 30.7.1977 and granted the decree prayed for. The respondent-plaintiff is only the elder brother of the appellant. His case in the plaint shortly is that in the family partition which took place earlier, the suit property was allotted to the defendant and he agreed to sell the same to the plaintiff under the abovesaid Ex. A1 for Rs. 20,000/-, within 18 months from the abovesaid date and that out of the said sum, he had paid Rs. 15,000/- as advance thereunder and only the balance of Rs. 5000/-, the defendant has to receive and execute the sale deed. The defendant in his written statement disputed the very factum of the execution of any sale agreement, though admitted the abovesaid family partition, which according to him took place in 1968, and by which, the B Schedule property under the said partition deed was said to have been allotted to the plaintiff and the defendant jointly. The further case in the written statement is that though the plaintiff was in management of the said property, there arose misunderstanding and on the advice of mediators the plaintiff and the defendant signed two plain stamp papers, but that the proposed compromise fell through and the plaintiff has manoeuvred to get blank stamp papers and has created the abovesaid suit agreement.

(2.) THUS, the only material issue before the courts below was regarding the truth of Ex. A-1 and the trial court accepted the abovesaid defence of the defendant and dismissed the suit. The lower appellate Court also set out only one question as point for determination thus:- Tamil (Exphasis supplied) But, the lower appellate Court differed from the view of the trial Court in giving a factual finding thereon by holding that Ex. A-1 is true. Accordingly it decreed the suit as prayed for and relegated the enquiry regarding mesne profits to separate proceedings under Order 20 Rule 12, C.P.C. No doubt, it also gave 30 days time for paying the balance sale consideration of Rs. 5,000/-, if it was not paid already and also gave another 30 days' time for execution of the sale deed and giving possession.

(3.) THE appellant has also filed C.M.P. No. 17984 of 1994 for raising additional grounds regarding the second of the abovesaid two submissions, that is, regarding the contention based on Order 18, Rule 3-A, C.P.C. Regarding the first of the abovesaid two submissions, no doubt, there is already a ground in the original Memorandum of Grounds itself, though it was not specifically put as a substantial question of law, arising in the case.