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2010 DIGILAW 2724 (MAD)

Mallika v. Ramasundaram

2010-07-06

M.JAICHANDREN

body2010
Judgment :- 1. This second appeal has been filed against the judgment and decree, passed in A.S.No.77 of 2006, dated 31.7.2006, on the file of the Subordinate Court, Mannargudi, confirming the judgment and decree, dated 5.12.2005, made in O.S.No.110 of 2004, on the file of the District Munsif Court, Mannargudi. 2. The plaintiff in the suit, in O.S.No.110 of 2004, is the appellant in the present second appeal. The defendants in the suit are the respondents herein. The plaintiff had filed the suit for specific performance of the agreement of sale, dated 25.3.2001, marked as Ex.A-1. It has been stated that the plaint schedule property belonged to the defendants. The defendants had agreed to sell the suit property to the plaintiff, by an agreement, dated 25.3.2001, for the sale consideration of Rs.35,000/-. On the same day, when the sale agreement had been entered into, the entire sale consideration had been paid by the plaintiff. Since, the defendants had not executed the sale deed, as per the agreement of sale, dated 25.3.2001, the plaintiff had issued a legal notice to the defendants, on 27.10.2003, calling upon the defendants to execute the sale deed. Since, the defendants had not come forward to execute the sale deed, in spite of having received the notice, the plaintiff had filed the suit, in O.S.No.110 of 2004, on the file of the District Munsif Court, Mannargudi. 3. In the written statement filed on behalf of the defendants, the claims made by the plaintiff had been denied. It had been stated that, as the first defendant was in dire need of money, he had approached the plaintiff for a loan of Rs.60,000/-. Thereafter, due to the misunderstanding that had arisen between the plaintiff and the first defendant, a police complaint had been lodged by the plaintiff. Thereafter, there was a compromise between the first defendant and the plaintiff. As per the compromise, the first defendant had to pay the entire loan amount, on 25.3.2001. All the defendants had been asked to sign on blank stamp papers. 4. Even though the first defendant had settled the entire amount due to the plaintiff, the signed blank papers had not been returned. As there was dispute between the plaintiff’s family and the defendants’ family, the defendants had lodged a police complaint. All the defendants had been asked to sign on blank stamp papers. 4. Even though the first defendant had settled the entire amount due to the plaintiff, the signed blank papers had not been returned. As there was dispute between the plaintiff’s family and the defendants’ family, the defendants had lodged a police complaint. Only to take revenge on the defendants, by using the blank stamp papers, the plaintiff had created a false sale agreement. Therefore, the suit filed by the plaintiff is based on a fraudulent sale agreement, and as the plaintiff had not come before this Court with clean hands, the suit is liable to be dismissed. 5. Based on the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration: “1) Whether the defendants had agreed to sell the suit property to the plaintiff for a sum of Rs.35,000/- and executed a sale agreement, on 25.3.2001, after receiving the entire sale consideration? 2) Whether the plaintiff is entitled for the relief of specific performance of the sale agreement, dated 25.3.2001, entered into with the defendants? 3) To what relief” 6. On the side of the plaintiff P.W.1 to P.W.4 had been examined. Documents Exs.A-1 to A-5 had been marked. On the side of the defendants D.W.1 to D.W.10 had been examined. Documents Exs.B-1 to B-5 had been marked. 7. The trial Court had found from Ex.B-2 that the first defendant had borrowed Rs.60,000/- from the plaintiff, on 15.7.2000. From Ex.B-3 it had been found that the first defendant had executed the confirmation deed in favour of the plaintiff, in the presence of the panchayatdars and it had also been found that he had promised to discharge the loan amount of Rs.60,000/- borrowed, as per Ex.B-2, on 25.3.2001. D.W.1 had been examined to prove that the first defendant had borrowed the money, as per Ex.B-2, and that he had executed the document, marked as Ex.B-3. D.W.2 to D.W.10, the attesting witnesses of Exs.B-2 and Ex.B-3 had also been examined. The trial Court had also found, from Ex.A-1 sale agreement, that it had been executed, on 25.3.2001. The first defendant having discharged the loan amount of Rs.60,000/-, on 25.3.2001, it was not possible on the part of the defendants to enter into the sale agreement, marked as Ex.A-1, on the same day. 8. The trial Court had also found, from Ex.A-1 sale agreement, that it had been executed, on 25.3.2001. The first defendant having discharged the loan amount of Rs.60,000/-, on 25.3.2001, it was not possible on the part of the defendants to enter into the sale agreement, marked as Ex.A-1, on the same day. 8. It had also been found that Ex.A-1, had been created by using the blank signed stamp papers given by the defendants. The defendants, by filing Exs.B-4 and B-5, had proved that there was a dispute between the plaintiff’s family and the defendant’s family and that the plaintiff had created the sale agreement only to take revenge on the defendants. It had also been found that there was no proper explanation from the plaintiff, as to why all the defendants had entered into a sale agreement, with the plaintiff, even though the first defendant was the owner of the suit property. 9. It had also been found that Ex.A-1, sale agreement had been prepared in stamp papers valued at Rs.12/-. There was no oral evidence adduced on behalf of the plaintiff, as to why the sale agreement had not been entered into by using stamp papers bearing the correct valuation. The trial Court had also held that the oral evidence of P.W.1 to P.W.3 did not substantiate the claims made by the plaintiff. In such circumstances, the trial Court had stated that it was not inclined to grant the discretionary relief of specific performance, prayed for by the plaintiff, in the suit in O.S.No.110 of 2004, on the file of the District Munsif Court, Mannargudi, in view of Section 20 of the Specific Relief Act, 1963. 10. Aggrieved by the judgment and decree of the trial Court, dated 5.12.2005, made in O.S.No.110 of 2004, the plaintiff had filed an appeal, in A.S.No.77 of 2006. The First Appellate Court had also confirmed the judgment and decree of the trial Court, by its judgment and decree, dated 31.7.2006, after having framed the following points for consideration: “1) Whether the appeal is to be allowed? Whether the judgment and decree of the trial Court is liable to be set aside? 2) To what other relief?” 11. The First Appellate Court had also confirmed the judgment and decree of the trial Court, by its judgment and decree, dated 31.7.2006, after having framed the following points for consideration: “1) Whether the appeal is to be allowed? Whether the judgment and decree of the trial Court is liable to be set aside? 2) To what other relief?” 11. Aggrieved by the judgment and decree of the First Appellate Court, the plaintiff in the suit had filed the second appeal, before this Court, raising the following questions, as substantial questions of law: “a. Whether the Courts below are right in holding that Ex.A-1 sale agreement dated 25.3.2001 is not genuine without considering the evidence of P.W.2 to P.W.4 attestors and scribe of the document. b. Whether the Courts below right in disbelieving the Ex.A-1 sale agreement when the defendants themselves admitted the signature in the document and in absence of any contrary evidence to prove that the Appellant/Plaintiffs above created the document? c. Whether the Courts below right in believing Ex.B-2 and B- which are a self serving document, and which are also no way helping to prove that Ex.A-1 sale agreement is not true and genuine? d. Whether the findings given by the Courts below are not perverse are in not considering the evidence on record and also misreading the evidence regarding Ex.A-1 sale agreement?” 12. The learned counsel appearing on behalf of the appellant had submitted that the judgment and decree of the Courts below are against law, weight of evidence and the probabilities of the case. He had submitted that both the Courts below had erred in arriving at their conclusions, without properly analysing the evidence available on record. The Courts below, had erroneously, disbelieved Ex.A-1 sale agreement,even though the plaintiff had examined the attestors, as well as the scribe of the document. No proper reason had been given by the Courts below to disbelieve the evidence of P.W.2 to P.W.4, especially, in the absence of evidence to the contrary. The non execution of the sale deed on payment of the entire sale consideration cannot be a sufficient reason to disbelieve Ex.A-1 sale agreement. The Courts below ought to have seen that, even as per Ex.B-3, the loan had not been discharged, as it was only an assurance to pay the loan on a future date. 13. The non execution of the sale deed on payment of the entire sale consideration cannot be a sufficient reason to disbelieve Ex.A-1 sale agreement. The Courts below ought to have seen that, even as per Ex.B-3, the loan had not been discharged, as it was only an assurance to pay the loan on a future date. 13. The learned counsel appearing on behalf of the respondents had submitted that both the Courts below had rightly held that the plaintiff had not proved that the sale agreement, marked as Ex.A-1 had been entered into, in respect of the suit property, with the intention of executing a sale deed. It had been stated that the evidence adduced on behalf of the respondents were sufficient to prove that the sale agreement, marked as Ex.A-1, had been created by the appellant using signed unfilled stamp papers taken from the first respondent. 14. In view of the submissions made by the learned counsels appearing on behalf of the appellant, as well as the respondents and on a perusal of the documents available, this Court is of the considered view that the appellant had not shown sufficient cause or reason to interfere with the concurrent findings of the Courts below. It cannot be said that the concurrent findings of the trial Court, as well as the First Appellate Court, were based on insufficient evidence. 15. It is noted that the Courts below had rightly held that the plaintiff/appellant was not in a position to prove that the sale agreement, dated 25.3.2001, marked as Ex.A-1, had been entered into between the plaintiff/appellant and the defendants/respondents, with the intention of executing a sale deed in respect of the suit property. Further, the courts below had come to their conclusions, on the basis of the evidence available on record and in view of Section 20(2) of the Specific Relief Act, 1963, which makes it clear that the granting of relief of specific performance is only discretionary in nature. As such, it is clear that the second appeal is devoid of merits. Hence, it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.