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2006 DIGILAW 608 (MAD)

M. Sellappan v. Athiappan & Others

2006-03-03

S.ASHOK KUMAR

body2006
Judgment :- (Second Appeal preferred against the judgment and decree dated 4.4.1994 made in A.S.No. 78 of 1993 on the file of the Subordinate Judge Sankagiri, setting aside the judgment and decree dated 20.9.1993 made in O.S.No: 346 of 1983 on the file of the learned District Munsif, Thiruchengode in respect of the reliefs of specific performance and permanent injunction against the third defendant in respect of B schedule property in favour of the plaintiff.) The plaintiff is the appellant. He filed the suit for the reliefs of (i) permanent injunction restraining the defendants from interfering with his right to use the common lane AB and CD and water from the common well in the suit A schedule property shown in the plaint rough plan; (ii) for specific performance directing the third defendant to execute the sale deed conveying the B schedule property to the plaintiff within the time to be fixed by the court and in default to execute the sale deed; and (iii) for permanent injunction restraining the defendants from interfering with the peaceful possession, occupation and enjoyment of the suit B schedule property. 2. The gist of the case is as follows:- The plaintiff and the defendants 1 to 3 are the sons of the deceased Muthu Gounder and all of them constituted a Hindu Joint Family. The eastern portion of the A Schedule property is the ancestral property of the plaintiff and the defendants 1 to 3 which remains undivided by metes and bounds even though they are in possession and enjoyment of specific portion in pursuance of the family arrangement. The plaintiff put up residential buildings over the A schedule having separate mess. He also dug up a well out of his funds and all the 4 brothers are jointly enjoying the same and for convenience usage they had a common lane described as AB and CD for easy passage from the main road to reach their respective properties and they have been using the two lanes for the past 25 years openly, continuously and peacefully without any obstruction. 3. Now, due to misunderstanding, the defendants are unlawfully preventing the plaintiff fro using the suit lanes and the suit well. 3. Now, due to misunderstanding, the defendants are unlawfully preventing the plaintiff fro using the suit lanes and the suit well. That apart, the plaintiff and the third defendant were the partners of a firm Balachandra Textiles and it was later dissolved and from the date of dissolution the third defendant delivered the possession of the B.Schedule property to the plaintiff after getting sale consideration, who has since then been in continuous, open and exclusive and absolute possession a and enjoyment thereof by using the property for drying and other connected purposes of his dying factory. Thus the third defendant has no right or interest in the B schedule property. 4. The defendants in their written statement denied the joint family status since all of them living separately for the past several years having their shares divided in the A schedule property by metes and bounds even in the year 1974 in the presence of the Panchayatdars. In the year 1972 and 1973, the second and third defendants have constructed their houses and factories and carried out their businesses separately and independently. It is not admitted that the plaintiff put up residential buildings in the western portion of A schedule property but they were constructed by all the brothers after three years of purchase in the year 1958. It is also not admitted that the plaintiff dug a well out of his own funds, but it is dug up by D.3 out of his funds in his share of land and AB common lane is not set apart for use of the said well. The well is situate in D.3's land and he never permits anybody to take water from the said well. 5. D.3 is having separate entry on southern side of his residential house abetting the main road and separate entry on the eastern side of his factory and to each the same, there is a pathway of 1 ½ width of space adjoining the entire stretch of north south well of the eastern wall of the house and factor of D.3 Thus the plaintiff and D 3 are always having separate pathway and entry to their respective houses and factories and thus the alleged AB and CD lanes were never used and enjoyed in common by the plaintiff and the defendants. CD lane was set apart for the exclusive use of D1 and D.2 alone by the panchayatdars at the time of partition itself. According to the defendants AB and CD lanes are not essential for the beneficial enjoyment of the properties. 6. Since D1 and D4 are demanding the plaintiff to vacate the premisses and hand over vacant possession in A schedule property in which D1 and D4 also having some share, to enable them to construct a powerloom factory, the plaintiff had filed the false suit against them. As regards B schedule property, the plaintiffs never paid any sale consideration and it is only the third defendant is in possession of the same and the plaintiff has no locus standi to claim specific performance. 7. On the above pleadings the Trial Court decreed the suit granting the reliefs as against defendants 2 and 3. Against the same, the defendants 2 and 3 preferred an appeal and the first appellate court modified the judgment and decree of the trial court negativing the relief granted for specific performance of the sale agreement. In other respects it confirmed the decree of the trial court. Hence the second appeal by the plaintiff. 8. At the time of admission, the following substantial Question of Laws were framed by this Court:- "(i) Whether or not the lower appellate court the judgment of the lower appellate court erred in construing the document Ex.A.2 dated 1.4.1977 in the light of evidence of P.W.1, P.W.2 and D.W.2 and D.W.3 and also erred in reversing partly the decree of the trial court regarding B schedule? (ii) Whether or not the lower appellate court erred grossly in developing an entirely new case not pleaded in 3rd defendant's written statement without an issue being framed and without any evidence let in the case and thereby committed serious illegality in reversing the judgment of the trial court?" 9. Since the plaintiff has not preferred any appeal as against defendants 1 and 4, the judgment and decree of the courts below as against defendants 1 and 4 is confirmed. Since the plaintiff has not preferred any appeal as against defendants 1 and 4, the judgment and decree of the courts below as against defendants 1 and 4 is confirmed. Likewise, the dispute in the present second appeal is only with regard to grant of specific performance in respect of B-schedule property, since as regards A-schedule property both the courts have granted the relief of declaration and injunction in favour of the plaintiff and no cross appeal has been preferred by the defendants 2 and 3 as against the said concurrent findings. 10. It is not in dispute that B-schedule property belonging to the third defendant as he has purchased the same from one Kandasamy under Ex. B.2, sale deed dated 2.12.1971. As regards the claim for specific performance, it is the case of the plaintiff that he along with the third defendant had been running a textile business in the name of Balachandra Textiles till 1.4.1977, on which date the said business was dissolved by a dissolution deed due to difference of opinion between them and after settling the dues and income-tax, the third defendant agreed to deliver the B-schedule property for a sale consideration of Rs.2,500/=, and there is a recital to the said effect in Ex.A.2. 11. The relevant recital as found in page No.2 of Ex.A.2 reads as follows:- 12. Whereas, in Ex.B.1, copy of the same release deed (dissolution deed) produced by the third defendant reads as follows:- 13. As rightly held by the first appellate court, on a thorough scrutiny of Ex.A.2 by seeing the reverse side of page No.2 of the said document with the light exposure, this court also comes to the same conclusion that the words appearing in 5th and 7th line of page No.2 have been deleted by a typewriter eraser and again very cleverly inserted to the effect that the second party to the agreement agrees to hand over possession of the house property purchased under document dated 2.12.1971 to the first party after taking a sale consideration of Rs.2,500/- and whenever the first party insist for registration of the sale deed the second party should concede to the same. 14. 14. The other circumstances which leads the said conclusion are, the first page of Ex.A.2 has been typed in a 1½ line space gap and only in page No.2, at the relevant place it has been typed in a single line space by inserting the alleged words. Apart from that there is sufficient gap after the contents of the document viz., in the place where the parties and witnesses have signed. From this we can come to the conclusion that the wordings have been inserted only after the parties and witnesses have signed in Ex.A.2. Otherwise, from the beginning to the bottom of page No.2, the entire contents, including the disputed wordings, could have been typed in the same 2 lines space. The deletion and insertions are very apparent and it amounts to forgery. 15. From a perusal of both Ex.A.2 and Ex.B.1, it is clear that the dissolution deed have been typed in a different typewriter as the letter types are apparently different and even one of the witness has signed in different ink which only suggests that they have been prepared and signed on different dates and not one and the same day and at one place. As seen from the contents the remaining due of Rs.11,277/- has to be paid by the plaintiff to the third defendant in a period of six months. Thus when the plaintiff is in due of a sum of Rs.11,277/- there is no necessity for the third defendant to settle on him the house property for a sum of Rs.2,500/- when both of them entered into the release deed after difference of opinion arose. 16. Though it is alleged in the said document that some panchayatdars have resolved the disputes between them, there is no whisper about them either in the plaint or in the evidence of P.W.1. Moreover, P.W.2, who is one of the witness has not appeared for cross examination. As rightly observed by the first appellate court, there is no mention about the description of the B-schedule property in Ex.A.2, nor there is any mention about the payment of alleged sale consideration in the said document, though it is stated on the same date the said amount has been paid to the third defendant. There is no time limit to execute the sale deed. There is no time limit to execute the sale deed. The first appellate court also on a comparison of the plaintiff's signature in both the documents held that there is variance in the signature of the plaintiff. Thus the plaintiff who has come to the court with unclean hands is not entitled to the relief of specific performance which relief could be granted only on equity. 17. As regards the handing over possession of the B-schedule property as well, the first appellate court held that P.W.2 has not been cross examined as he did not appear for the same and hence his evidence given in the chief examination cannot be taken into consideration in view of Section 137 of the Indian Evidence Act. Even P.W.3's deposition cannot be accepted as he is an interested witness since he is residing in the house the plaintiff. Even during the hearing before this Court, learned counsel for the appellant produced some of the photographs to show that the plaintiff has put up a thatched shed in the B-schedule property and has been using the same for drying the yarns after dipping the same in the colour wash. But from the said photographs, this court only sees that the said thatched shed has been put up very recently as the coconut leaves seems to be of recent one and having its full length and the bamboo sticks also in green colour, which only goes to show that the shed has been put up only for the purpose of the case. Therefore, the plaintiff is also not entitled for the relief of permanent injunction with respect to B-schedule property. 18. For the reasons stated above, both the questions of law are answered against the appellant and the second appeal is dismissed with costs.