IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.11.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA.No.2118/2003 1.M.Ramasamy (died) 2.R.Amsadevi 3.R.Senthilkumar R.Saroja Appellants 2 to 4 brought on record as Lrs of the deceased sole Appellant by the order of this court dated 26.2.10 and made in CMP.344/10 in S.A. 2118/03 Appellants (Defendant) Vs K.K.Ponnusamy Respondent (Plaintiffs) Prayer:- This Second Appeal is filed against the Judgement and Decree dated 3.5.2002 passed in AS.No.4/2001 by the learned Additional District Judge (FTC-4) Coimbatore, reversing the Judgement and Decree dated 21.1.1999 passed in OS.No.556/1995 by the learned District Munsif, Palladam, Coimbatore. For Appellants : Mr.S.Sithirai Anandan For Respondent : Mr.S.K.Rakhunathan JUDGEMENT The respondent herein/plaintiff has filed the suit in OS.NO.556/1995 to pass a judgement and decree, directing the 1st appellant herein/defendant to receive the sum of Rs.1,834/- and execute and register a sale deed in favour of the plaintiff for Rs.1,834/- in respect of the suit property within a time to be fixed by this court and in default by the defendant, this court may execute and register the sale deed and for costs. 2. The case of the Plaintiff as set out in the plaint is as follows:- a. The plaintiff has been in possession and enjoyment of an extent of 1 acre 43 cents in SF.No.239/2, Kannamapalayam Village (now sub divided as 239/2C) for the last 25 years. Originally, the https://hcservices.ecourts.gov.in/hcservices/ father of the plaintiff was in possession of the said property. The plaintiff became a cultivating tenant of the property under one Nanjudaiyar about 25 years back. The plaintiff owns lands on the north of this land. The plaintiff constructed a shalai in the suit property and the said shalai was assessed in the name of the plaintiff. While so, the defendant purported to purchase said property from Nanjudaiyar under a sale deed dated 13.9.1989. Knowing that the property was in possession of the plaintiff, the defendant took the sale deed making false allegations as if possession was handed over to him and tried to forcibly occupy the property. On 11.4.1990, the defendant trespassed into the property and caused damage to the plaintiff's shalai. However, the defendant could not take possession of the property. b. The defendant gave a false complaint on 5.4.90 alleging trespass on the part of the plaintiff and filed a suit for declaration of his title in OS.No.288/1990. Thereafter, a compromise dated 25.12.1990 was entered into between the plaintiff and the defendant at the instance of the panchayatars of Kannampalayam Village. One Velusamy, one of the signatories to the said compromise is interested in SF.No.240 situated on the south of SF.No.239/2. The dispute between the said Velusamy and the defendant in respect of SF.No.240 was also settled by the same compromise. There is an east-west Eri in SF.No.239/2C which separates this land from SF.No.240/-. It was agreed that the plaintiff should remain in possession of the entire extent on the north of the Eri. It was also agreed that the defendant should execute a sale deed in respect of 1 acre 43 cents in SF.No.239/2C to the plaintiff within three months from 25.12.1990. On measurement, it was found that an area of 0.12 acres belonged to one Raman who was assigned some lands under the Land Ceiling Act was protruding south of the Eri. The plaintiff has entered into an agreement with the said Raman for the purchase of the lands assigned to him. But, the assignee could not convey the assigned lands before ten years from the date of assignment. Hence, it was agreed that the defendant should execute a sale deed in favour of the plaintiff in respect of 1 acre 31 cents in SF.No.239/2C and when the plaintiff gets a sale deed from Raman, he should give 12 cents south of the Eri to the defendant and at that time, the defendant should execute a sale deed in respect of the 12 cents on the north of Eri. It was also agreed that the defendant should execute the sale deed in favour of the plaintiff for the same price quoted in the defendant's sale deed dated 13.9.1989. But, the plaintiff insisted that he need not pay this price to the defendant in view of the damage caused by the defendant to the plaintiff's shalai. But, the plaintiff was asked to take the sale deed by paying the defendant at the same rate at which the defendant had purchased the property on 13.9.1989. The price quoted in the sale deed dated 13.9.1989 for 1 acre and 43 cents is Rs.2000/-. Therefore, the plaintiff has to pay the defendant Rs.1834/- and take a sale deed in respect of 1 acre and 31 cents at his own https://hcservices.ecourts.gov.in/hcservices/ expenses. c. The plaintiff is always willing and ready to pay the defendant the sum of Rs.1834/- and take the sale deed at his expenses in respect of the suit property. As per the compromise dated 25.12.1990, the defendant has to withdraw OS.NO.288/1990, but the defendant neither executed the sale deed nor withdrew the suit. When the said suit came up for trial, the plaintiff filed an application in IA.NO.1454/93 for recording the compromise and dismissing OS.No.288/1990 and the said application was allowed and dismissed the suit on 3.12.1993. Since, the defendant failed to execute the sale deed by receiving the sum of Rs.1834/-, this suit has been filed. 3. In the Written Statement filed by the Defendant, it is averred as follows:- a. The averments regarding possession and enjoyment of the suit property by the plaintiff as a tenant are not correct. There was no shalai in the suit property. The defendant purchased the suit property from Najundaiyar by a sale deed dated 13.9.1989 for a valid consideration. When the defendant went on a business tour, the plaintiff tried to attach the Shalai put up by the defendant in the suit property and the same was prevented by the defendant with the help of the police. Even after the execution of the sale in favour of the defendant, the plaintiff tried to trespass into the suit property. Hence, the defendant filed OS.No.288/1990, wherein a compromise decree was passed. As per the compromise deed,, there was an alternative arrangement, in which the plaintiff has to give 12 cents to the defendant situated on the north of the Eri. On receiving the 12 cents, the defendant has to execute the sale for 1 acre and 31 cents in favour of the plaintiff. As per the alternative arrangement, the plaintiff was not able to execute the sale of 12 cents to the defendant. Hence, the defendant need not to comply with the terms of the compromise. b. Unless the defendant gets the 12 cents, the defendant cannot execute the sale in favour of the plaintiff. There is no question of specific performance. The essence of the contract itself has become invalid, since the terms of the agreement cannot be executed. When the plaintiff cannot perform his part of the agreement, the defendant cannot be compelled to execute his part of the agreement. The plaintiff cannot claim any right to file the present suit for specific performance. In such circumstances, the present suit is liable to be dismissed. 4. Before the Trial Court, on the side of the Plaintiff, Exs.A1 to A5 were marked and the Plaintiff examined himself as PW.1 and one Nanjappa Gounder as PW.2. On behalf of the Defendant, Ex.B1 to B6 were marked and the Defendant was examined as DW.1. 5. On consideration of the oral as well as the documentary evidence, the Trial Court dismissed the suit and in the appeal filed as against the same filed by the Plaintiff, the lower appellate court decreed the suit, setting aside the Judgement and https://hcservices.ecourts.gov.in/hcservices/ Decree of the Trial Court, as against which, this Second Appeal has been filed by the defendant. 6. This Second Appeal has been entertained on the following substantial question of law:- “In the face of reciprocal obligations imposed on the parties to the suit in OS.No.288/1990 under the consent decree therein (the parties to that suit are the parties to the present suit), can the respondent, without performing the obligation imposed on him under the compromise decree, compel the 1st appellant to perform his obligation alone?” 7. This court heard the submissions of the learned counsel on either side and also perused the judgements of the court below and the materials on record. 8. It is the main contention of the appellants that an alternative arrangement was made in Ex.A1 the compromise deed, by which the respondent has to give 12 cents of lands to the 1st appellant/defendant situated on the south of the east west Eri in S.No.239/2 and only on receiving the said 12 cents of land from the respondent, the defendant has to execute the sale deed for 1 acre 31 cents in SF.No.239/2C in favour of the respondent. According to the appellants, the defendant cannot execute the sale deed unless he gets 12 cents of land in his favour and the 1st appellant/defendant was always ready and willing to execute the sale deed for 1 acre 31 cents in favour of the respondent/plaintiff provided that the respondent gets 12 cents of land from one Raman as per the compromise deed. It is the case of the appellants that since the respondent/plaintiff was not able to execute the sale of 12 cents in favour of the defendant, the defendant need not comply with the terms of the compromise deed. 9. Mr.S.Sithirai Anandan, the learned counsel for the appellants would contend that the inherent intention in Ex.A1 compromise deed was that both the parties should perform their parts of obligations simultaneously to their mutual benefits and since the plaintiff has failed to prove his readiness and willingness to perform his part of the obligation in the compromise deed, he is not entitled to the relief of specific performance, as it would be inequitable to compel one party alone to perform the terms of the agreement. The learned counsel referred to the decision of the Allahabad High Court reported in AIR-1991- Allahabad-268 [Tribhuwan Dutt Tripathi Vs. Ramji Tiwari and another], wherein a Division Bench of the Allahabad High Court held that when two contemporaneous agreements are entered into between the parties and intended to be performed simultaneously to their mutual benefits and when there is evidence to show that the plaintiffs failed to prove their readiness and willingness to perform their responsibility, they are not entitled to the relief of specific performance against the defendant. 10. There is no doubt and the position of law is also clear that when the inherent intention of the terms of the agreement was that both the parties should perform their parts of their obligations simultaneously and when the conduct of the https://hcservices.ecourts.gov.in/hcservices/ plaintiff shows that he has failed to perform his part of the contract and to compel the other party to comply with the terms of the agreement, the plaintiff will not be entitled to the relief of specific performance, as the enforcement of the terms of agreement only against the defendant would bound to work serious prejudice and will also be inequitable. 11. In the instant case, a reading of Ex.A1 makes it clear that in SF.No.239, the plaintiff has to be in possession on the north of east west Eri and the southern part is to be possessed and enjoyed by one Velusamy and the defendant. It also reads that the plaintiff has to take a sale deed within three months after measuring and planting stones. While taking such a sale deed in favour of the plaintiff, the defendant can deduct an extent of land equal to Raman's land, south of Eri, and when the plaintiff is able to get a sale of Raman's land on the south of Eri, the defendant has to execute a sale to the plaintiff for a similar extent on the north of Eri which has been deducted. 12. The defendant has not denied the above said terms in the written statement. He only stated that until the plaintiff gets the extent of land from Raman and executes the sale for such an extent in favour of the defendant, the defendant is not bound to execute the sale deed in favour of the plaintiff. 13. On a careful reading of Ex.A1, it is clear that the execution of sale deed by the defendant does not depend upon the plaintiff getting the sale from Raman and it only states that while executing the sale deed, the defendant can deduct an extent of land equal to Raman's land. It further says that as and when the plaintiff is able to get the sale of Raman's land, the defendant has to execute the sale to the plaintiff for a similar extent which has been deducted. The plaintiff has stated that on measurement of land, it was found that Raman's land on the south of Eri was 12 cents. This is admitted by the defendant in his evidence. There is no dispute that the total area of the land on the north of the Eri is 1 acre and 43 cents. In fact, this is also admitted by the defendant. As per the terms of Ex.A1 as referred to above, the defendant has to execute a sale deed for 1 acre and 31 cents, i.e. after deducting 12 cents in favour of the plaintiff. When the plaintiff gets the sale of 12 cents on the south of Eri from Raman, the defendant has to execute the sale deed for the similar extent on the north of Eri. On going through the evidence, it is also clear that there is no doubt regarding the identity of the property or the extent of the land for which the defendant has to execute the sale deed. As regards the execution of sale for an extent of 1 acre 31 cents by the defendant in favour of the plaintiff, it is distinct and separate and three months time has been stipulated for execution of document in the compromise deed itself. Only with regard to execution of sale of 12 cents, it specifically says that as and when the plaintiff is able to get the said land from Raman and get the sale deed executed in favour of https://hcservices.ecourts.gov.in/hcservices/ the defendant, the remaining extent of 12 cents in SF.No.239/2C retained by the defendant will be given to the plaintiff. At this stage, it is relevant to extract the admission made by DW.1 in his evidence admitting the above said terms in Ex.A1 compromise deed as under:- “th/rh/M/1y; g";rhaj;J Kotpd; ;go Vhpf;F tlg[wk; thjpa[k ;. bjd;g [wk; ehDk; ntYr;rhkpa[k ; mDgtpj;Jf; bfhs;sntz;oaJ vd vGjg;gl;Ls;sJ rhpjhd;/ th/rh/M/1y; Vhpf;F bjd;g [wk ; uhkDila g{kp vt;tst[ tUfpwnjh me;j mst[ g{kpia Vhpf;F tlg[wk; ehd; thjpf;Ff; fpuak; bra;a [k ; nghJ Fiwj;Jf ;bfhs;sntz;oaJ vd;Wk; fz;Ls;sJ/ Vhpf;F bjd;g [wk ; uhkDf;F 12 brz;l ; epyk; cs;sJ/ me;j 12 brz;l ; g{kp nghf tlg[wk; cs;s g{kpapd; 1 Vf;fh ; 31 brz;l ; epyj;ijj;jhd; thjp tHf;fpy; fpuak; nfl;Ls;shh;/ xg;ge;jgoa[k ;. jPh;g ;ghizg;goa[k ; ehd; fpuak; bra;J bfhLf;fntz;Lbkd;W brhd;dhy; rhpay;y/ Vhpf;F bjd;g [wk; cs;s 12 brz;l ;il uhkd; K:yk; thjp fpuak; bra;J bfhLf;Fk; fhyj;jpy; kPjKs;s 12 brz;il fpuak; bra;a ntz;Lk; vd;W th/rh/M/1y; vGjg;gl;Ls;sJ vd;W brhd;dhy; rhpjhd;/@ 14. The later part of Ex.A1 clearly stipulates only about the 12 cents of Raman's land which the plaintiff assured to get it and sell it to the defendant and on such sale, the defendant would convey 12 cents on the north of Eri i.e. from 43 cents. As far as the land on the north of Eri i.e. 1 acre 31 cents is concerned, it has been specifically agreed that it should be conveyed to the plaintiff within a period of three months. 15. In fact, the said compromise was the subject matter of the suit in OS.No.288/1990 on the file of the District Munsif Court, Thiruppur and after an elaborate enquiry, the said court has upheld the deed of compromise and has given a finding that it is true and valid in law. It has also found that the defendant was bound to act as per the terms of the compromise in its judgement and decree dated 3.12.1993 marked as Ex.A2 and A3. DW.1 in his evidence admits about the said decree passed by the learned District Munsif in OS.No.288/19990 and he has not filed any appeal against the said decree. It is evidently clear that the defendant as well as the plaintiff have accepted the terms of the compromise and have agreed to abide by the same. When the facts are such, the defendant cannot be allowed to contend that the plaintiff without performing the obligation imposed on him under the compromise decree, cannot compel the defendant to perform his obligation. There is absolutely no merits in the said contention. 16. The learned counsel for the appellants put forth a contention which admittedly is not raised in the written statement that the contract is not supported by any consideration and therefore, it is not enforceable. The learned counsel would also contend that no description of the property is given in Ex.A1 and the terms of the compromise is not definite and uncertain. He would submit that Ex.A1 is void for uncertainty and referred to Section https://hcservices.ecourts.gov.in/hcservices/ 29 of the Indian Contract Act which deals with the agreements of void for uncertainty. 17. Under Section 29 of the Indian Contract Act, an agreement would be deemed to be void only when its terms are vague and uncertain. The general rule is that if the terms of an agreement are so vague or indefinite and that it cannot be ascertained with reasonable certainty regarding the intention of the parties, then the said contract becomes unenforceable in law. But, a contract will not become void, if its terms are capable of being ascertainable with precision and the intentions of the parties to the contract could be ascertained. Ultimately, the object of the court is to do justice between the parties and the court will do its best if satisfied that there was ascertainable and determinate intention to contract, to give effect to that intention looking at substance and not mere form. Therefore, the requirement that an agreement in order to be binding must be sufficiently definite to enable the court to give it a practical meaning. 18. In the instant case, as already discussed, it contains a specific term that the parties to Ex.A1 should take a sale deed in terms of their enjoyment, namely, the plaintiff should take the land on the north of east west Eri and the southern part to be taken by the defendant and one Velusamy. It also stipulates that the plaintiff has to take a sale deed within three months after measuring and laying stones in accordance with the terms of the agreement. Later, when the plaintiff is able to get a sale of Raman's land on the south of Eri, the defendant has to execute a sale to the plaintiff for a similar extent on the north of Eri which stands deducted till the sale from Raman is obtained. 19. The above said terms clearly exhibits the intention of the parties and I do not find any uncertainty in the terms of Ex.A1. It is the case of the plaintiff that he has taken all steps in measuring the property and get the sale deed executed by the other party. In such circumstances, the defendant cannot contend that there is no certainty in the terms of Ex.A1 compromise and hence it becomes unenforceable. I am unable to countenance with such argument advanced by the learned counsel for the appellants. 20. That apart, in the former proceedings in OS.No.288/1990, wherein the compromise deed Ex.A1 was the subject matter of the said suit between the same parties, the defendant did not raise all those issues as to want of consideration and uncertainty of contract and merely chose to deny the execution of compromise and stated that under compulsion of the Panchayatars, he was forced to sign the deed, but the said plea was negatived by the learned District Munsif Court. It would be fair and just that the parties to raise all available relevant pleas in the suits or proceedings when the action is initiated and the omission thereof https://hcservices.ecourts.gov.in/hcservices/ does constitute res-judicata to prevent raising of the same at a later point of time. Therefore, as rightly contended by the learned counsel for the respondent, the rule envisaged under Explanation 4 to Section 11 of CPC squarely applies to the facts of the present case. Therefore, it is no longer open to the appellants to plead that Ex.A1 is unenforceable. It is clearly seen that the defendant is raising at each successive stages different pleas to protract the proceedings and drive the respondent to multiplicity of proceedings. 21. In view of the reasons stated above, I am of the considered view that there is no illegality or infirmity or perversity in the findings of the first appellate court and this second appeal is liable to be dismissed. The substantial question of law is answered against the appellant. 22. In the result, this Second Appeal is dismissed. The judgement and decree of the lower appellate court is confirmed and the judgement and decree of the trial court is set aside and the suit is decreed as prayed for. However, in the circumstances of the case, there will be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. Srcm To: 1.The Additional District Judge (FTC No.4) Coimbatore 2.The District Munsif, Palladam, Coimbatore 1 cc to Mr.S.K. Rakhunathan, Sr. 83354 1 cc to Mr.S. Sithirai anandan, Sr. 83512 SA.No.2118/2003 RL (CO) kk 3/2 https://hcservices.ecourts.gov.in/hcservices/