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2000 DIGILAW 631 (MAD)

Pallipatti Polanna v. Ambati Lakshamma

2000-06-30

A.RAMAN

body2000
Judgment : 1. This second appeal is directed against the judgment and decree of the Second Additional Judge, City Civil Court, Madras in A.S.No.446 of 1987 rendered on 12. 1988. 2. Thesuit was filed by the plaintiff for direction to the defendant to execute the sale deed in favour of the plaintiff and for permanent injunction. The suit was dismissed by the trial court and on appeal, the lower appellate court while holding that the plaintiff is not entitled to the enforcement of the agreement, however, found that the plaintiff is entitled to protect her possession under Sec.53-A of the Transfer of Property Act. No appeal was preferred against the said finding by the defendant, who ought to be aggrieved by the said judgment. Therefore, it is unnecessary to be considered whether in the circumstances, such a decree passed by the lower appellate court is tenable in law. 3. At the time when the appeal was admitted, the following substantial question of law was formulated for consideration: “Whether the courts below were right in denying the plaintiff the relief of specific performance merely on the ground of delay, when no prejudice could be caused to the other side”. 4. Learned counsel for the petitioner relied upon the decision of the Supreme Court reported in Jiwan Lal v. Brij Mohan A.I.R. 1973 S.C. 559 and the decision of the Division Bench of this Court reported in Arjuna Mudaliar v. Lakshmi Ammal (1948)2 MLJ. 271 for the position that from long delay alone without adding further, an abandonment of rights could not be presumed, and that when it is not likely to cause prejudice to other parties exclusive for specific performance cannot be disputed on the short ground of delay. 5. The above two propositions would apply, if the suit is for specific performance of an agreement of sale. The document in question is in Telugu, which has been marked as Ex.A-3. It is a very short instrument that reads as follows: “On this day for my necessities, to wit, for my family expenses the property in my occupation in which I have right is sold to you of my own accord after receiving a consideration of Rs.2,500. Since I have received the entire sale consideration the house in which I am residing and also having right in it is delivered to you on this day. Since I have received the entire sale consideration the house in which I am residing and also having right in it is delivered to you on this day. Henceforth, yourself and your heirs shall be entitled to enjoy the schedule mentioned property from generation to generation. Either myself or my heirs shall be entitled to claim any right in the property. I have executed the sale deed of my own accord.” The document does not purport to be an agreement of sale. On the other hand it purports to be a sale deed. The terms are clear that it is specifically stated that the sale deed has been executed and it also shows that the entire consideration has been received. It further states that possession has been delivered. There is nothing more to be done, with reference to the transaction, except the registration of the same. There is nothing mentioned about the registration. It is for the person, who buys the property to have the document registered and call upon the vendor to register document. Nothing has been mentioned in the plaint about this. Nor it is alleged that the defendant in spite of demand by the plaintiff, refused to come and have the sale deed registered. It is also to be pointed out that already plaintiff had purchased a portion of the property forming part of the property and situate by the side of the suit property, under a sale deed. Neither in paragraph 4 nor in paragraph 5 of the plaint, any allegation is made that it is only an agreement of sale and that there remained something more for performance and that something more was to be performed by the defendant and that the defendant failed to perform the same. On the other hand it refers to the transaction of the sale, the receipt of entire consideration and the handing over of possession and the transfer of name in the registry of the Corporation Register. It is only in 1984, a notice has been given. In the plaint it is only stated that the plaintiff was always ready to purchase stamp papers and always ready to register the sale in his favour. If so, it is not explained anywhere in the plaint as to why such a course was not pursued by the plaintiff immediately after sale. The document reads that it is a sale note. If so, it is not explained anywhere in the plaint as to why such a course was not pursued by the plaintiff immediately after sale. The document reads that it is a sale note. In the notice dated 17. 1984 it is nowhere stated that the defendant defaulted to execute the regular sale deed or refused to come and have it registered. Therefore, in such circumstances, it is clear that the plaintiff is not entitled to the relief of specific performance. Moreso, when there is no explanation for the enormous delay. It is to be pointed out that the defendant initiated steps under the Tamil Nadu Buildings (Lease and Rent) Control Act for eviction of the tenant. The plaintiff is residing in another portion of the same property. Therefore, she ought to have been aware of the proceedings. But yet she had kept quite in spite of the fact that the proceeding for eviction was initiated by the defendant, she kept quiet and chose to issue a notice only in the year 1984. The defendant filed R.C.O.P.No.163 of 1983 and an order of eviction was obtained on 20.8.1983 and against that order appeal filed by the tenant was disposed of on 27. 1984. The notice has been sent only on 17. 1974. It is also not in dispute that the Execution Petition has been filed by the defendant for taking possession pursuant to the order of eviction. The lower court erred in overlooking the fact that it is not an agreement of sale. In her evidence also she has not stated that the defendant agreed to come and register it within a particular period and defaulted to do so and therefore, she is entitled to specific performance of the said sale note. She has also not stated anywhere that she has been always ready and willing to perform her part of the agreement. Nor any reason is given by her in her evidence as to why she could not take steps immediately after the sale note to sue for specific performance. Therefore, in such circumstances, I am of the view that decisions cited by the learned counsel cannot apply to the facts of this case and the plaintiff is not entitled to the relief of specific performance, moreso, when the transaction entered into between the parties is a transaction of sale and not an agreement of sale. Therefore, in such circumstances, I am of the view that decisions cited by the learned counsel cannot apply to the facts of this case and the plaintiff is not entitled to the relief of specific performance, moreso, when the transaction entered into between the parties is a transaction of sale and not an agreement of sale. Therefore, remedy of the plaintiffs, if there is refusal on the part of the defendant to register the document to take steps for compulsory registration. Hence a suit for specific performance will not lie. 6. In the result, this Second Appeal is dismissed with costs.