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(ii) The first defendant had removed the unauthorised encroachers from the property and allowed the plaintiff to put up the compound wall. The plaintiff accordingly put up a compound wall in or around September, 1975 when the huts were removed. This defendant along with the first defendant informed the plaintiff of fheir readiness and willingness to convey the property in 1976 itself and the plaintiff did not take any steps to complete the sale. The plaintiff tried to take shelter under a notice issued by a third party claiming title to the property. On 14.5.1976 the advocate foe the first defendant Wrote to the advocate for the plaintiff pointing out that the plaintiff committed breach of contract by not completing the sale. The plaintiff had not even sent a draft sale deed. Therefore the first defendant called upon the plaintiff to pay the balance sale price within one week from 14.5.1976 and complete the transaction or accept the refund of Rs. l0.000 paid as advance in token of the cancellation of the agreement. On 20.5.1976 the advocate for the plain tiff wrote stating that there was cloud in title; the plaintiff had spent large sum that his client was ready and willing to complete the transaction provided the cloud in title is removed. The defendants never put the plaintiff in possession of the property. The permission granted to construct the compound wall was only to secure the property against the encroachments. It cannot amount to delivery of possession. The sale had to be completed within three months. The parties to the agreement treated time as the essence of the contract. As the plaintiff was not adhering to the terms of the contract, this defendant along with the first defendant filed O.S.No. 5671 of 1979 before the City Civil Court, Madras against the plaintiff. The suit was dismissed on 22.2.1982. The plaintiffs in that suit appealed in A.S.No. 366 of 1982 and the appellate court by judgment dated 10.3.1983 remanded the suit for fresh disposal. The defendant in that suit filed CMA. No. 820 of 1983 before the High Court at Madras. During the pendency of that appeal the defendants came to know that the plaintiff herein had unauthorisedly let the property to Madras Container Terminal for a rent of Rs.10,000 per month. Therefore the suit was allowed to be withdrawn by an order of Court and accordingly a comprehensive suit in O.S.No. 68 of 1987 came to be filed. Even during the pendency of the proceedings referred to above the plaintiff had not elected to discharge his obligation under the agreement of sale. The claim of the stranger to the suit properties was not a reason for the default or delay. The plaintiff committed breach of contract on 18.10.1975 by not completing the sale. In any event the defendant extended the time by one week from 14.5.1976 and even this opportunity the plaintiff did not avail of.

The parties to the contract are (a) Arjun Gokaldas (one of the owners and (b) Maruthai (the buyer). It is clear from the terms of the agreement that the vendor has to arrange for the sale of the entire land by getting the sale deed or sale deeds executed by the different owners and that he has to remove the huts before the sale is completed. Since three months time is fixed for the completion of the sale, the removal of the huts must therefore necessarily be before the expiry of the said three months from 18.7.1975. The obligations fast upon the buyer under this agreement is that he must pay, the balance price before the registering officer; that his lawyer must approve the title; that the buyer had a right to buy the land excluding the land occupied by the huts if the huts are not removed and if the huts were removed he has to put up a compound wall around the land as provided for in the agreement to prevent any future encroachments. It is not in dispute between the parties that the hut dewellers and the encroachments were removed. However there is a dispute as to who removed those encroachments. The vendors would contend that it is they who removed the encroachments whereas the buyer would contend that the vendors were not able to remove the huts within three months' time and thereafter it is he who had removed the encroachments. The fact also remains and it is not in dispute that the buyer has put up a compound wall and appointed a watchman to prevent future encroachments. Once the encroachments are shown to have been removed the only other obligation of the vendor under Ex.A.1, is to arrange for the sale of the entire lands by different owners. As sale deed or sale deeds executed by different owners. As far as the title is concerned the parties are ad idem that the vendors had good title till the buyer for the first time was put on notice about the claim of the third party by a lawyer's notice dated 27.3.1976 marked in this case as Ex.B.11. Therefore it is clear that from 18.7.1975 till the receipt of Ex.B.11 there was no doubt and there could not have been a doubt in the mind of the buyer about the title of the vendors. Therefore two out of three obligations of the vendor namely removal of the huts and showing good title had been shown to have been performed by the vendors. In fact in Ex.B.7 dated 29.5.1976 the lawyer, for the buyer had affirmed the scrutiny of the title documents and they were found to be in order. It is also not the case of the buyer that the vendors had not established their title. As already noticed only under Ex.B.11 a third party projected his claim. The question whether who removed the encroachments is not really going to matter much in this case since the removal of the encroachment was also in the year 1975 itself. The buyer in his written statement in the suit for possession had stated that after the removal of the encroachment by him he had put up a compound wall besides putting up a number of constructions on the land and since 1975 three watchmen had to guard the property in shifts through out day and night. Therefore it is clear that the removal of encroachment was complete after the agreement of sale and during the year 1975 itself. As otherwise there was no need for the buyer to employ three watchmen to guard to property even in the year 1975 itself. In his oral evidence as D.W.1 the buyer would state that the compound wall was constructed by him in the year 1975. The averment in the plaint filed in the suit for specific performance is that the buyer had sent a draft sale deed to the vendors and only after that Ex.B.11 issued on behalf of the third party claim was received. When exactly the draft sale deed was sent cannot be found out from the entire records. But I am referring to this .aspect at this stage only to show that the buyer was satisfied with the title of the vendors also. The buyer in his written statement filed in the suit for possession would also state that after the encroachment was removed the entire site was available for completion of the sale transaction. (Italics by this Court). AH this would definitely mean that even by the end of the year 1975, the sale could have been completed.

21. I perused the oral evidence of D.W.1 also to find out whether he was ever ready and willing to perform his obligations under the contract of sale and whether it was shown to be in existence continuously. As already noticed by me from the documentary evidence it is clear that the buyer had not established his readiness and, willingness during the periods referred to above. Merely because in some of the notices sent on behalf of the buyer it is mentioned that he was ready and willing to perform his part of the contract would not by itself established his readiness and willingness. Besides such averments, the buyer should bring to the notice of the Court the factual materials available to establish such a stand. Apart from stating in his pleadings about the encroachments having been removed and the compound wall having been put up, D.W.1 in his oral evidence also admits that fact. But however he would state that the vendor under Ex.A.1 had not removed the encroachments hut it is only he who has done the same. The evidence further shows that it took him nine months to remove the encroachments. This cannot be true for more than one reason. Under the contract of sale the encroachment must be removed within three months by the vendor. If there is any failure on the part of the vendor then the buyer had two options-the first option is that he can exclude the extent of the land occupied by the encroachers and buy the remaining lands free from encroachments at the agreed rate and the second option is that he can take back the advance in cancellation of the agreement. The first correspondence from the buyer after Ex.A.1 is Ex.B.4 dated 22.4.1976. Till that time there is nothing on record to show that the buyer had complained to the vendors about their failure to remove the encroachments within the time mentioned in the contract. In his written statement in the suit for possession he would state that the encroachment was removed and the entire site was available for completion of the sale transaction. I have already referred to in the earlier portion of the judgment that the buyer had pleaded that in the year 1975 he has put up a compound wall and appointed a watchman to guard the property. The putting up of the compound wall would arise only after removal of the encroachments completely as otherwise there was no purpose behind it. In fact it is the term of the contract itself that only after the removal of the encroachments the compound wall should be put up so as to prevent future encroachments. D.W.1's oral evidence is that all the vendors had expressed their willingness to execute the sale deed. If the context in which the evidence has come to be recorded is looked at, then it means that the consent was after Exs.B.5 and B.6. But I have already found that even long before that time the buyer was put on notice about the same. But however for the purpose of looking at the case from another angle, I assume for a moment that atleast some time after Exs.B.5 and B.6 (dated 14.5.1976 and 15.5.1976) the buyer had information that all the vendors have decided to execute the sale deed. In fact his suggestion to P.W.1 in his cross examination is to the same effect', namely only after issuing Exs.B.5 and B.6 the vendor under Ex.A.1 got the consent from other owners of the property. So this time is taken as the starting point of limitation and on that day the Central Act 34 of 1976 was not in force and it having come into force only on 3.8.1976, nothing prevented the buyer from completing the sale, especially when he had not chosen to place any reliance after Exs.B.5 and B.6 on the claim of the third party. Only for the first time in his oral evidence recorded on 2.3.1993 he would state that the cloud on title raised by the third party was not cleared. As I have already noticed after the receipt of Ex.B.5 dated 14.5.1976 where an answer is given in regard to the claim of the third party till his oral evidence was recorded on 2.3.1993 the buyer had not raised that issue at all. The burden is on the buyer not only to aware but also to prove that he has been ready and willing to perform his part of the contract, which is a common fact to bee established by him in his suit for specific performance as well as in the other suit for possession filed against him. I carefully and meticulously analysed the evidence of D.W.1 to find out whether he has established this fact. Though there is pleading in both the suit on his behalf yet I find that neither by documentary evidence nor by oral evidence he had established that fact. To get the benefit of equitable relief in his suit for specific performance and get the benefit of the passive equity provided under section 53A of the Transfer of Property Act, a party who seeks those benefits should prove the readiness and willingness on his part.

The party of the second part shall put up a compound wall around the land agreed to be sold as soon as the huts are, removed so as to prevent any further encroachment and the party of the first part shall be under no obligation to get any hut dewellers vacated if such encroachment takes place after the removal of the huts at present existing on the land."

"The party of the second part is the buyer and the party of the first part is the owner. There is also no dispute in this case that the encroachments have been removed. There is also no. dispute in this case that the buyer had put up a compound wall encircling the property. It is in evidence that the buyer had appointed a watchman. Though there is a pleading on behalf of the owners that they have also employed a watchman, yet P.W.1 in his oral evidence would state that they have not appointed any watchman. It is also true that apart from constructing a compound wall the buyer had put up a number of other constructions inside the encircled area of the property. Of-course the buyer had no authority to put up those constructions and his plea and evidence that he had put up the same with the knowledge of the owner is not at all impressive, substantiated and therefore rejected. There me no materials on record to show that the vendors have acquicised in any manner in the conduct of the buyer in putting up those constructions. Applying my mind to the facts available I am in entire agreement with Mr. R. Alagar, learned Senior Counsel that though the transferee was not given possession of the property agreed to be conveyed to him under the contract itself, yet he had taken possession of the property atleast when he was authorised to put up the compound wall.