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2010 DIGILAW 954 (MAD)

Nallakka @ Ellamma v. S. Muthappa

2010-03-02

VIYA KARUPPIAH

body2010
COMMON JUDGMENT 1. S.A. No. 243 of 2005: This appeal is directed against the judgment and decree passed by the learned first appellate Court (Sub Court, Hosur) in A.S. No. 11 of 1999 dated 31.12.2003 in confirming the judgment and decree passed by the trial Court (District Munsif Court, Hosur) in O.S. No. 172 of 1992 dated 25.1.1999. S.A. No. 244 of 2005: 2. This appeal is directed against the judgment and decree passed by the learned first appellate Court (Sub Court, Hosur) in A.S. No. 10 of 1999 dated 31.12.2003 in confirming the judgment and decree passed by the trial Court (District Munsif Court, Hosur) in O.S. No. 382 of 1990 dated 25.1.1999. 3. The appellants in both the appeals are the plaintiffs in O.S. No. 172 of 1992 and defendants 2 to 5 in O.S. No. 382 of 1990. The respondent in both the appeals is the defendant in O.S. No. 172 of 1992 and the plaintiff in O.S. No. 382 of 1990. 4. The case of the plaintiffs in O.S. No. 172 of 1992 in brief before the trial Court would be as follows:- The suit property, S. No. 116/4, Dry, extent 1.85.5 Hectares belong to plaintiffs ancestrally and the plaintiffs are legal representatives of the deceased Govindan. Govindan died on 4.11.1990. Plaintiffs 3 and 4 are the sons and first plaintiff is the widow and second plaintiff is the daughter of the said Govindan. Until the death of Govindan, the plaintiffs and Govindan are in possession and enjoyment of the suit schedule property. Prior to Govindan his father and forefather were in continuous and uninterrupted possession and enjoyment of the suit properties. Till the death of Govindan, all revenue records stood in the name of Govindan. Now the patta and chitta for the property stand in the name of the plaintiffs. Further, the plaintiffs paying kist to the land. The plaintiffs alone raising crops in the suit land. The defendant is a stranger to the suit land. The defendant has no right, title or possession over the suit land at any time. The defendant approached the plaintiffs to sell the property as if it is nearby his land. The plaintiffs did not agree to part with the land. The defendant proclaimed that the late Govindan promised to sell the property and hence, the plaintiffs are bound by it. The defendant approached the plaintiffs to sell the property as if it is nearby his land. The plaintiffs did not agree to part with the land. The defendant proclaimed that the late Govindan promised to sell the property and hence, the plaintiffs are bound by it. To the knowledge of plaintiffs, the said late Govindan neither made any promise to sell the property nor executed any sale agreement. If at all any agreement of sale is with the defendant, it is a forged document. At any extent, the defendant has no possession or right over the suit property at any time. The defendant influenced the Shoolagiri Police and the police on 18.5.1992 took all the plaintiffs to the police station and directed them to get necessary orders from Court. The defendant on 20.5.1992 attempted to trespass upon the suit property, which was prevented by the plaintiffs. The defendant denied the title of the plaintiff and that he will come with police and occupy the land. If the defendant put his words into action, the plaintiffs will be put into irreparable loss and hardship. The defendant has no right, title or possession over the suit land at any time. The defendant is a powerful man with money and men at his command. He may strike the plaintiffs at any time and grab at the property. Therefore, the plaintiffs have filed this suit for declaration of title and for permanent injunction. 5. The contentions raised by the defendant in O.S. No. 172 of 1992 would be as thus :- The allegations set out in the plaint are all false and untrue and the plaintiffs are put to strict proof of the same. It is false to allege that the plaintiffs 3 and 4 are residing at Enusonai Village. The 3rd plaintiff has been residing at Bommathathanur village, while the 4th plaintiff has been residing at Hosur Town. It is with a mala fide motive, the plaintiffs have alleged in plaint that all the plaintiffs are residing at Enusonai Village. The plaintiffs are the legal representatives of the deceased Govindan. The suit property is the self acquired property of the deceased Govindan. The said Govindan had no ancestral properties at all. Since, the suit property is the self acquired property of the deceased Govindan, none of the legal representatives have any legal claim over it. The plaintiffs are the legal representatives of the deceased Govindan. The suit property is the self acquired property of the deceased Govindan. The said Govindan had no ancestral properties at all. Since, the suit property is the self acquired property of the deceased Govindan, none of the legal representatives have any legal claim over it. It is false to allege that the plaintiffs are in possession and enjoyment of the suit property. It is stated that even while Govindan was alive, he along with his two sons executed an agreement of sale in writing in favour of the defendant on 13.8.1987 agreeing to sell the suit property for a sum of Rs. 13,100/- and on the day of execution of the above said agreement, the said Govindan along with his two sons received an advance of Rs. 12,100/- and agreed to receive the balance of sale consideration from the defendant and agreed to execute a regular sale deed in favour of the defendant, of course at the cost of the defendant. On agreement of sale, the defendant was put in actual possession and enjoyment of the suit property and since the date of agreement, the defendant has been exercising acts of possession over the same by raising crops thereon. All the plaintiffs are fully aware of the execution of suit agreement by Govindan and Plaintiffs 3 and 4 in favour of the defendant. The adangal is also entered in the name of the defendant. As the said Govindan and his two sons, who are the plaintiffs 3 and 4, did not act as per the conditions recited in the said sale agreement, the defendant has filed a suit in O.S. No. 382 of 1990 against the plaintiffs and the same is pending trial. In order to counter blast the suit in O.S. No. 382 of 1990, the plaintiffs purposely have filed this suit in order to drag on the proceedings. As the plaintiffs created trouble to the defendant in enjoyment of the suit property, he gave complaint to Shulagiri Police and the Police after looking into xerox copy of the suit agreement and after enquiry, directed the plaintiffs herein not to create trouble to the defendant in the enjoyment of the suit property. As the plaintiffs created trouble to the defendant in enjoyment of the suit property, he gave complaint to Shulagiri Police and the Police after looking into xerox copy of the suit agreement and after enquiry, directed the plaintiffs herein not to create trouble to the defendant in the enjoyment of the suit property. There is no necessity for this defendant to trespass into the suit property inasmuch as the defendant is in possession of the suit property, since the sale agreement is in his favour. Hence, he prayed for dismissal of the suit with costs. 6. The case of the plaintiff in O.S. No. 382 of 1990 in brief before the trial Court would be as follows:- The suit property belonged to the defendants. The defendants 2 and 3 are the sons of first defendant. The defendants 1 to 3 executed an agreement of sale in writing in favour of the plaintiff on 13.7.1987 agreeing to sell the suit property for Rs. 13,100/- and on the day of the execution of the above said agreement, the defendants received an advance of Rs. 12,100/- in the presence of the attestors scribe and agreed to receive the balance of Rs. 1000/- within three months and agreed to execute a regular sale deed in favour of the plaintiff, of course at the cost of the plaintiff. The defendants in pursuance of the above sale agreement, delivered possession of the suit property and since that date, the plaintiff has been in possession and enjoyment of the properties by raising crops thereon and harvesting the same. At the time of execution of the suit agreement, the defendants were residing at Madarsanapalli Village. The defendants after execution of the suit agreement in favour of the plaintiff, left the village and then the whereabouts of the defendants came to be known only in the first week of August 1990. The defendants have purchased the property at Bommathathanur Village with the amount realised by them under the suit agreement. The defendants 1 and 3 have settled at Hosur and the second defendant has been residing at Bommathathanur Village. The plaintiff on coming to know the actual residence of the defendants, approached the defendants in the first week of August 1990 and requested them to receive the balance of sale consideration and execute a sale deed. The defendants wanted the plaintiff to pay an additional sum of Rs. The plaintiff on coming to know the actual residence of the defendants, approached the defendants in the first week of August 1990 and requested them to receive the balance of sale consideration and execute a sale deed. The defendants wanted the plaintiff to pay an additional sum of Rs. 5,000/- as the land value has increased. As the plaintiff refused to pay the additional sum of Rs. 5,000/- as desired by the defendants, they refused to execute the sale deed as per the condition recited in the agreement. The plaintiff was and is always ready and willing to act as per the conditions recited in the agreement. The plaintiff has got ready balance of Rs. 1000/- being the balance of sale consideration and he has got money necessary to meet registration expenses. The plaintiff caused a registered notice to the defendants on 18.8.1990 called upon them to be present before the Sub-Registrar, Shoolagiri on 23.8.1990 so that they may receive the balance of sale consideration and execute a sale deed in favour of the plaintiff, of course at the cost of the plaintiff. The plaintiff on 23.8.1990 has also purchased stamp paper to the tune of Rs. 1,750/- to show his bona fides. The defendants have received the notice and given a reply with false and incorrect allegations. The defendants did not at all turn up before the Sub Registrar on 23.8.1990 to execute a sale deed in favour of the plaintiff. This attitude of the defendants would show that the defendants are not at all ready and willing to act as per the conditions recited in the sale agreement. The plaintiff has got three years period to enforce specific performance of contract from the date of breech. Hence, the suit. The plaintiff is also filing the lodgement schedule for the deposit of the balance of sale consideration. The plaintiff is prepared to deposit the amount on the lodgement being ordered by this Court. 7. The objections raised by the defendants 2 to 5 before the trial Court in O.S. No. 382 of 1990 would be as follows:- The suit is not maintainable either in law or on facts and has to be dismissed in limini with costs. The plaintiff is prepared to deposit the amount on the lodgement being ordered by this Court. 7. The objections raised by the defendants 2 to 5 before the trial Court in O.S. No. 382 of 1990 would be as follows:- The suit is not maintainable either in law or on facts and has to be dismissed in limini with costs. The defendants do not admit any of the allegations made in the plaint except those, which are specifically admitted in the written statement as true and put the plaintiff into strict proof of each one of the allegations. The suit property belonged to the defendants. These defendants never executed any sale agreement in respect of suit property in favour of the plaintiff or anybody else. The plaintiff was never in possession of the suit properties at any time. It is not true that the defendants have purchased the properties at Bommathathanoor Village, after selling off the suit lands. The defendants are in the actual possession of the suit properties. The Chitta and Adnagal also stand in the name of the defendants. The plaintiff is an adjacent land owner and in order to knock it creaply, the plaintiff has set up the theory of sale agreement. The market value of the land per acre is more than Rs. 15,000/- even in the year 1987. There is no truth in the plaintiff’s contention that the suit properties were sold at Rs. 3,000/- per acre. The defendants have taken a hand loan of Rs. 5,000/- from the plaintiff and as a security, they have signed on a blank papers. But the plaintiff has misutilised the agreement, as if they have executed the sale agreement and thus, the suit agreement is a forged one. It is not true that the plaintiff is ready and willing to act as per the conditions recited in the agreement. It is true that the plaintiff caused a registered legal notice and has properly replied with. The defendants are not aware, who is the scribe and attestor of the agreement. The recitals are not known. The recitals of the agreement are all self serving and fabricated. The defendants need not execute any sale deed as they had never executed any agreement. There is no cause of action for the maintainability of the suit. 8. The trial Court framed necessary issues separately in both the suits and entered trial. The recitals are not known. The recitals of the agreement are all self serving and fabricated. The defendants need not execute any sale deed as they had never executed any agreement. There is no cause of action for the maintainability of the suit. 8. The trial Court framed necessary issues separately in both the suits and entered trial. The trial Court recorded the evidence in O.S. No. 382 of 1990 and treated the said evidence for the suit in O.S. No. 172 of 1992 also. After appraising the entire evidence, a common judgment was pronounced by the trial Court on 25.1.1999, in which the suit in O.S. No. 382 of 1990 was decreed and three months time was granted for execution of sale deed in favour of the plaintiff. The suit in O.S. No. 172 of 1992 was consequently dismissed without costs. 9. Aggrieved by the decisions reached by the trial Court, the defendants in O.S. No. 382 of 1990 who are the plaintiffs in O.S. No. 172 of 1992 preferred the appeals in A.S. No. 10 of 1999 and A.S. No. 11 of 1999 respectively challenging the common judgment and decrees passed by the trial Court. The first appellate Court had combinedly heard both the appeals and had dismissed both the appeals without costs and thereby confirmed the common judgment and decrees passed in O.S. No. 382 of 1990 and O.S. No. 172 of 1992 dated 25.1.1999. 10. Aggrieved by the judgment and decrees passed by the first appellate Court in A.S. Nos. 10 and 11 of 1999, the defendants 2 to 5 in O.S. No. 382 of 1990 and the plaintiffs in O.S. No. 172 of 1992 have challenged the said judgment and decrees passed by the first appellate Court before this Court. 11. On admission of the Second Appeals in S.A. No. 243 of 2005 and 244 of 2005, this Court had formulated the following substantial questions of law:- (a) Whether the Courts below are right in relying upon Exhibit A-5, a concocted document for decreeing a suit for specific performance? (b) Whether the Courts below are right in ignoring the delay in institution of the suit for specific performance, assuming the document under Exhibit A-5 to be true ? 12. For convenience, the status of parties as referred in O.S. No. 382 of 1990 is maintained infra. 13. Heard Mr. (b) Whether the Courts below are right in ignoring the delay in institution of the suit for specific performance, assuming the document under Exhibit A-5 to be true ? 12. For convenience, the status of parties as referred in O.S. No. 382 of 1990 is maintained infra. 13. Heard Mr. V. Raghavachari, learned counsel for the appellants and Mr. V. Krishnan, learned counsel for the respondent. 14. The learned counsel for the appellants would submit in his argument that the judgments and decrees passed by the Courts below were without any objective appreciation when the main document Exhibit A-5 was apparently a fabricated one on a bare perusal. He would further submit in his argument that the evidence adduced by the parties would show that the stamp paper was secured in the name of one Bala Naidu dated 31.5.1983 for the document to be executed on 13.7.1987. He would further submit in his argument that the ownership of the property was said to have been with the first defendant Govindappa, but the defendants 2 and 3, viz., Gangappa and Marappa were also included as if they have also executed the agreement of sale Exhibit A-5, which would create doubts in the truth and genuineness of the sale agreement. He would further submit that the case of the defendants was that the signature and thumb impression of the defendants 1 to 3 were obtained in blank papers for obtaining a loan of Rs. 5,000/- from the plaintiff and as a security, they have signed on blank papers and the same were misutilised for the agreement as if they have executed the agreement and it would probablise that the defendants 2 and 3, who have no right in the property have also joined in the execution of such an agreement of sale. He would further submit that the plaintiff is also said to have put his signature in Exhibit A-5, but it is on the margin of the document. He would further submit that if really an agreement has been entered into between the plaintiff and the first defendant both would have signed at the foot of the document lest the signatures of the defendants 2 and 3. He would further submit that the non-purchase of the stamp paper in the name of the plaintiff would also raise doubt. He would further submit that if really an agreement has been entered into between the plaintiff and the first defendant both would have signed at the foot of the document lest the signatures of the defendants 2 and 3. He would further submit that the non-purchase of the stamp paper in the name of the plaintiff would also raise doubt. The alleged time limit fixed in the agreement for three months was over by the end of 13.10.1987, but, there was no notice issued by the plaintiff within the said period to show his readiness. He would also submit that the reason given for non-issuance of notice within the said period that the defendants have shifted their residence from Enusonai Village to some other place i.e., Bommathathanur Village cannot be accepted, since the said village Bommathathanur is located only 40 kms away from Madarsanapalli Village. He would further submit in his argument that the witnesses examined by the plaintiff viz., P.W.2 and P.W.3 were interested witnesses and their evidence cannot be relied upon, even for a cursory reading of the alleged agreement Exhibit A-5. He would further submit that the evidence of P.W.1 that he was always ready and willing to perform his part of contract cannot be relied upon, since he had acted only at the verge of the expiry of three years by sending suit notice on 15.8.1990 and thereafter, purchased the stamp papers on 23.8.1990 and filed the suit only on 8.10.1990 i.e., four days prior to the limitation period. He would further submit that the alleged sale agreement Exhibit A-5 was a concocted document and if really it is a true document, the plaintiff would have acted upon to send notice even to the last known address within the time limit fixed in the sale agreement and thereafter to the places where the defendants were stated to have been living i.e., Bommathathanur Village and Hosur. 15. The learned counsel for the appellants would also submit in his argument that the plaintiff has falsely stated that the defendants have purchased the properties at Bommathathanur Village with the money received by them and have settled there was not true and the plaintiff has not produced any document to show the truth of such allegations. 15. The learned counsel for the appellants would also submit in his argument that the plaintiff has falsely stated that the defendants have purchased the properties at Bommathathanur Village with the money received by them and have settled there was not true and the plaintiff has not produced any document to show the truth of such allegations. He would also submit that the village Bommathathanur was not far away from the suit village and the plaintiff could have approached the defendants for the execution of the sale deed if really there was an agreement of sale as pleaded by the plaintiff. He would also submit that the facts and circumstances culled out from the evidence adduced in this case would go to show that there could not be any agreement of sale executed by the defendants 1 to 3 and the trial Court as well as the first appellate Court have failed to perceive the evidence properly and to reject the case of the plaintiff. He would further submit that the value of the property was more than Rs. 20,000/- per acre on the date of agreement, but the plaintiff wanted to knock away 4 acres of land for Rs. 13,100/- only which would show that the transaction was not for selling the property. He would further submit that the document Exhibit A-5, had been prepared clumsy and it is a cramped document, in which the letters are adjusted so as to fill it up with the stamp paper and the thumb impression were also found smudged. He would further submit that the Courts below who are to find out the correct position on the basis of the evidence have failed to see that Exhibit A-5 was a concocted document sheerly on a perusal. He would also submit that the evidence of P.W.2 and P.W.3 are artificial in order to support the case of the plaintiff, since they are the henchmen of the plaintiff. He would further submit that if really Exhibit A-5 was a sale agreement when substantial payment has been made towards sale consideration, why three months time was given for paying a very small amount of Rs. 1000/-, towards balance sale consideration. 16. He would further submit that if really Exhibit A-5 was a sale agreement when substantial payment has been made towards sale consideration, why three months time was given for paying a very small amount of Rs. 1000/-, towards balance sale consideration. 16. The learned counsel for the appellants would also submit that the averment of the plaintiff that he had taken possession of the property from the date of agreement was balbably false, since he did not produce any document to show that he was put in possession. He would also submit that P.W.1 had categorically in his evidence deposed that he did not produce the adangal extract prior to 1400 fasli. He would further submit that the theory of handing over of possession on the date of alleged agreement was not true and the defendants were in actual possession and enjoyment of the suit property. He would further submit that the properties described in both the suits were the ancestral property of the plaintiff and the plaintiff has got only 2/3rd share in the suit property. He would further submit in his argument that even if the case is true, the suit filed by the defendants in O.S. No. 172 of 1992 need not be dismissed since the declaration sought for by the plaintiffs in respect of the suit property till the sale deed has been executed in case the suit filed by the plaintiff is decreed by the Court. The Courts below have miserably failed to understand the title to the suit property till it is parted through execution of sale deed, but had refused the declaratory relief and the consequential injunction. He would further submit that the specific performance relief sought for by the plaintiff was purely an equitable relief and it cannot be given for the sake of asking by the plaintiff who based upon a fabricated document, Exhibit A-5, and he was also not ready and willing to perform his part of the contract, even if the agreement was true, he was guilty of suppressing the facts and putting the facts contrary to the truth. 17. 17. The learned counsel for the appellants would rely upon the judgment of the Hon’ble Apex Court Umabai v. Nilkanth Dhondiba Chavan (2005) 6 SCC 243 : (2005) 4 MLJ 24 for the principle that the true nature of the document must be determined by gathering the intention of the parties as well as the circumstances prevailing in each case. He would also refer to a judgment of the Hon’ble Apex Court Manjunath Anandappa v. Tammanasa AIR 2003 SC 1391 : (2003) 10 SCC 390 : (2003) 3 MLJ 50 for the principle that the conduct of the plaintiff should be taken into account towards non-filing the suit within a reasonable time. He would further submit in his argument that the attitude and conduct of the plaintiff would go to show that he was lethargic throughout, without evincing any interest in getting the document executed, even if Exhibit A-5 is considered to be true document. Therefore, he would submit that the plaintiff is not entitled to any relief sought for by him. He would refer to the judgment of the Hon’ble Apex Court Azhar Sultana v. Rajamani (2009) 17 SCC 27 : LNIND 2009 SC 377 in support of his argument. He would further refer to another judgment of the Hon’ble Apex Court His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar AIR 1996 SC 2095 : (1996) 4 SCC 526 for the same principle. He would also rely upon the judgment of this Court Koothapadayachi and Another v. Arjuna Pillai and two Others (1998) 1 LW 301 for the principle that the readiness should not only be shown on the date of the agreement, but also be shown during the entire period fixed. He would also rely upon yet another principle that when the allegation made by the plaintiff that he was put in possession of the suit property and the same was not found to be true, the discretionary relief of specific performance need not be granted to the plaintiff. He would also quote yet another unreported judgment of the Hon’ble Apex Court made in Civil Appeal Nos. 7254 to 7256 of 2002 Saradamani Kandappan v. S.Rajalakshmi and Others for the same principle. He would also quote yet another unreported judgment of the Hon’ble Apex Court made in Civil Appeal Nos. 7254 to 7256 of 2002 Saradamani Kandappan v. S.Rajalakshmi and Others for the same principle. He would further cite a judgment of this Court S.K.M. Mohammed Amanullah represented by his Power Agent A. Alik Akbar Aziz v. T.C.S. Ramasangu Pandian and Others (1993) 2 MLJ 464 for the principle that the conduct of the parties to be gathered in respect of ascertaining the readiness and willingness to perform his part of the contract. 18. Relying upon the aforesaid judgment, the learned counsel for the appellants would further submit that the plaintiff (respondent herein) was keeping quiet till the completion of three months fixed in the alleged agreement without taking any steps and even thereafter he kept quiet till 15.8.1990, the date of notice Exhibit A-1 and nothing was shown to have been done by the plaintiff during the said period and in the said circumstances, the mere deposit of Rs. 1000/- before the Court is not sufficient to show the intention of the plaintiff that he was ready and willing to perform his part of contract throughout as per the dictum laid down in the aforesaid judgments. He would also submit that the evidence of P.Ws.1 to 3, if collectively considered along with the construction of the agreement Exhibit A-5, it would show that the entire evidence adduced by P.Ws.1 to 3 are absolutely false and they have committed perjury by fabricating document Exhibit A-5, and therefore, the case of the plaintiff seeking specific performance should not have been ordered. He would further submit that the Courts below, being the trial Court and the first appellate Court, did not observe the construction of Exhibit A-5, but had simply gone through the oral evidence adduced regarding the alleged proof of the said document, which is not the dispensation of justice, but have misconstrued the evidence as well as the principles laid down in the cases of specific performance. He would rely on the judgment of the Honourable Apex Court Bondar Singh v. Nihal Singh AIR 2003 SC 1905 : (2003) 4 SCC 161 : (2003) 2 MLJ 122 for the principle that even though the judgments and decrees of both the Courts below are concurrent and if they have erred in applying the legal principles and the evidence to the facts and circumstances of the case, certainly, this Court, under Section 100 C.P.C., is empowered to interfere with those judgments, despite they are concurrent. Therefore, he would request the Court to interfere with the judgments of the first appellate Court even though concurrent and to set aside the same and consequently the judgment and decree passed by the trial Court may also be set aside in both the appeals and the suit filed by the plaintiff in O.S. No. 382 of 1990 has to be dismissed and the suit filed by the defendants in O.S. No. 172 of 1992 may be decreed. 19. The learned counsel for the respondent in both the appeals would submit in his argument that both the Courts below have concurrently come to a conclusion that the plaintiff was entitled to specific performance as per the agreement reached in between the parties and the defendants are not entitled for any declaration in the suit properties and for permanent injunction against the plaintiff, the agreement vendee. He would further submit in his argument that the plaintiff paid a sum of Rs. 12,100/- to the defendants on 13.7.1987 and entered into a sale agreement fixing a period of three months for its completion cannot be disputed by the defendants, since they have admitted their signatures and thumb impressions in the agreement. He would further submit that the Courts below have also accepted the evidence of the plaintiff that the defendants 1 to 3 have executed an agreement of sale in favour of the plaintiff after receiving a sum of Rs. 12,100/- as advance and the time was fixed at 3 months for the payment of balance sale consideration of Rs. He would further submit that the Courts below have also accepted the evidence of the plaintiff that the defendants 1 to 3 have executed an agreement of sale in favour of the plaintiff after receiving a sum of Rs. 12,100/- as advance and the time was fixed at 3 months for the payment of balance sale consideration of Rs. 1000/- and the plaintiff was always ready and willing to perform his part of the contract and the defendants 1 to 3 were not available in the suit village and therefore, it was not possible to complete the sale and subsequently, the plaintiff expressed his willingness by sending the notice to the defendants 1 to 3 to their residence at Hosur and Bommathathanur village. He would further submit that the finding of the first appellate Court that the evidence of the attestors are acceptable to come to a conclusion that the sale agreement was true and the plaintiff could not found the defendants since third defendant was residing at Hosur was also found to have been based upon oral and documentary evidence and it cannot be agitated once again before this Court. He would also submit that the readiness and willingness on the part of the plaintiff was also accepted by the Courts below throughout and the deposit of Rs. 1000/- to the credit of the suit was also considered by the Courts below and therefore, there is no necessity to reappraise the evidence produced before the trial Court. He would further submit that the property was worth Rs. 13,100/- only at the time of sale agreement and it cannot be considered that the hike of the property in subsequent years will not entitle the plaintiff to get a sale deed. He would also submit in his argument that the case of the defendants that the said agreement was created in a blank paper signed by the defendants 1 to 3, in consideration of borrowing Rs. 5,000/- from the plaintiff cannot be true and the evidence to that aspect need not be reappraised in the Second Appeal when the first appellate Court concurred with the findings of the trial Court that the agreement was entered into between the parties as proved through the evidence adduced by the plaintiff. 5,000/- from the plaintiff cannot be true and the evidence to that aspect need not be reappraised in the Second Appeal when the first appellate Court concurred with the findings of the trial Court that the agreement was entered into between the parties as proved through the evidence adduced by the plaintiff. He would also submit that the defendants did not produce any kist receipts in order to show that they are in possession of the suit properties and the declaration sought for and the permanent injunction asked for cannot be granted as rightly rejected by the Courts below. He would also submit that the plaintiff was put in possession and the defendants have purchased properties in Bommathathanur village with the money they got from the plaintiff and therefore, the defendants cannot put forth the plea that the defendants are in possession of the suit property. He would also submit in his argument that even though the sale consideration was found inadequate when there was no material contradiction in the evidence of plaintiff’s side witnesses, there is no reason to refuse the specific performance. He would cite a judgment of this Court M.N. Rangasamy v. K. Govindasamy and Others (2011) 2 CLT 411 : LNIND 2011 MAD 1405 in support of his argument. He would also submit that the plaintiff was always ready and willing to perform his part of contract and there was no necessity to mechanically reproduce the words contained in Section 16(c) of the Specific Relief Act and the over all pleading can be gathered to infer in abstract the intention of the pleading required under Section 16(c) of the Act. In support of his argument, he would rely upon a judgment of the Hon’ble Apex Court Syed Destagir v. T.R. Gopalakrishna Setty (2001) MLJ 1 (SC). 20. The learned counsel for the respondent would further submit in his argument that the plaintiff (respondent herein) was throughout ready and willing to perform his part of the contract, but the absence of the defendants 1 to 3 in the suit village had caused the delay and the said delay would not in any way defeat the right of the plaintiff. He would further submit in his argument that the plaintiff was put in possession of the suit property in pursuance of the sale agreement and he had produced various documents which were also relied upon by the Courts below. He would further submit that the defendants 1 to 3 did not prove their possession of the suit properties and the said fact was found by the trial Court and their suit was dismissed on that basis. The said finding of the trial Court was also confirmed by the first appellate Court and the said concurrent finding should prevail unless any evidence of a particular witness has escaped from the consideration of the Courts below. He would rely upon a judgment of this Court Ramalingam v. Thiruvenkadam (2010) 1 LW 408 : LNIND 2009 MAD 5097 : (2010) 2 MLJ 333 for that purpose. He would, therefore, request the Court that the question of fact as reached by the first appellate Court need not be disturbed in a concurrent finding reached by the first appellate Court and the said findings are not liable to be found either perverse or biased. Therefore, he would request the Court to dismiss both the appeals and to confirm the judgments and decrees passed by the Courts below. 21. I have given anxious consideration to the arguments advanced on either side. 22. The suit in O.S. No. 382 of 1990 was filed by the plaintiff for specific performance of an agreement dated 13.7.1987 for the reliefs as follows: (a) for a direction directing the defendants to execute a regular sale deed in favour of the plaintiff, of course, at the cost of the plaintiff and then receive the balance of sale consideration of Rs. 1000/- (Rupees one thousand) only which is in Court deposit; and (b) for costs of the suit. 23. The suit in O.S. No. 172 of 1992 was filed by the defendants for declaration of their title and injunction in respect of the suit property. In view of the evidence recorded in O.S. No. 382 of 1990, the status of parties in the said suit is maintained for convenience. 24. The trial Court had decreed the plaintiff’s suit for specific performance and at the same time, the suit filed by the defendants for declaring the title to the suit property and for permanent injunction was dismissed. 24. The trial Court had decreed the plaintiff’s suit for specific performance and at the same time, the suit filed by the defendants for declaring the title to the suit property and for permanent injunction was dismissed. The appeal preferred by the defendants in A.S. No. 10 of 1999 against the suit in O.S. No. 382 of 1990 and the appeal preferred against the judgment and decree passed in O.S. No. 172 of 1992 in A.S. No. 11 of 1999 were dismissed by the first appellate Court by confirming the judgments and decrees passed by the trial Court. 25. Whether such concurrent findings of the first appellate Court are not in accordance with the evidence adduced by the parties and the conclusions were reached by the first appellate Court without any discussion, for confirming the judgments and decrees of the trial Court, are the points to be decided, apart from the questions of law framed. 26. Admittedly, the suit property was belonging to the first defendant Govindappa and the said properties are his self-acquired properties. However, the plaintiff had joined the sons of the first defendant as parties to the sale agreement. The explanation offered by the plaintiff in his evidence was that they were added as parties to the sale agreement as witnesses. The contention of the defendants would be that the defendants did not execute any sale agreement in favour of the plaintiff towards the sale of the suit property, but the said agreement was concocted and created by using the signatures and thumb impressions made in a blank paper for the borrowal of Rs. 5000/- from the plaintiff. The said defence was considered as not proved, but the Courts below have come to the conclusion that the said agreement dated 13.7.1987 produced in Exhibit A-5 was a true document and it was proved by the examination of the attesting witness and the scribe. Whether such finding reached by the Courts below can be interfered since the fact found by the first appellate Court is normally considered as final. No doubt, there are certain exceptions when the judgment of both the Courts below are concurrent, this Court can interfere under Section 100 CPC when the evidence were not perceived by both the Courts below to its true meaning and the actual circumstances were not considered due to lack of appreciation of evidence. 27. No doubt, there are certain exceptions when the judgment of both the Courts below are concurrent, this Court can interfere under Section 100 CPC when the evidence were not perceived by both the Courts below to its true meaning and the actual circumstances were not considered due to lack of appreciation of evidence. 27. Now the point for consideration is whether both the Courts below have not perceived the evidence adduced by both the parties in a correct sense. 28. The disputed agreement is produced as Exhibit A-5. It is a single paged document engrossed in a stamped paper. The scribe was examined as P.W.2. He was a retired Village Administrative Officer and was stated to have written number of documents, who is also in possession of a licence to write the documents. In his evidence, he would state that the talk of sale was concluded in the presence of Panchayatdars some one week prior to the writing of Exhibit A-5 and it was not written on that day. However, he would state that on the day of writing Exhibit A-5, no stamp paper was available at Madarasanapalli village and the first defendant himself had gone to his house and brought a stamp paper standing in the name of one Bala Naidu and he has stated that it can be written in an insufficient stamp paper for the value of Rs. 3/- as it was an unregistered agreement. On a careful perusal of the said document, I could see that the writings of the contents were initially started by leaving decent gap in between two lines and thereafter the gap has been reduced and the last line was almost thrust above the signatures of the parties. It is the categorical admission of P.W.2 in his cross examination that as a licensed document writer, he was aware that when the first stamp paper was not sufficient to complete the agreement, additional green or white paper can be attached for completing the document and signatures could be obtained in such paper also. He did not explain as to why an additional paper was not attached for the completion of the agreement Exhibit A-5. Furthermore, the evidence of P.W.1 would go to show that the plaintiff did not sign at the foot of Exhibit A-5, but he has signed at the left margin of Exhibit A-5. He did not explain as to why an additional paper was not attached for the completion of the agreement Exhibit A-5. Furthermore, the evidence of P.W.1 would go to show that the plaintiff did not sign at the foot of Exhibit A-5, but he has signed at the left margin of Exhibit A-5. Even during his first day of chief examination, he did not say that he signed along with defendants 1 to 3 and thereafter, the witnesses subscribed their signatures. However, P.W.1 had also on his evidence on second day deposed that he also signed in the agreement. Admittedly, the property was a self acquired property of the first defendant and the reason put forth by the plaintiff for inclusion of the defendants 2 and 3 in the sale agreement was that they were added as witnesses to the said transaction. However, P.W.2 has told in his evidence that the property was belonging to first defendant as a self acquired property and to the defendants 2 and 3, it was an ancestral properties and therefore, they were added as parties. Apart from that, the evidence of P.W.3 would go to show that he did not witness the signing of the persons and he did not notice whether any money was paid in his presence. Whether the relying upon the evidence of P.W.2 and P.W.3 could be sustained and can they be taken as supported the evidence of P.W.1 is the question. 29. On a careful perusal of Exhibit A-5, I could see that the entire agreement was thrust in one page and even though it could be written neatly and perfectly with another paper attached to it and the signatures of defendants 2 and 3 were obtained in a place where the gap is available and the plaintiff had signed at the margin, even though the space would have been available where the witnesses have put their signatures at the foot of its right side, which would create suspicion over the said agreement. The insufficient stamp paper dated 31.5.1983 was used for a document dated 13.7.1987 and the explanation offered that it was brought by the first defendant himself cannot be accepted for the reason that the sale of the suit property was said to have been concluded a week ago prior to the writing of the document and why the stamp papers were not obtained in the mean while was an unanswered question. The evidence adduced by P.W.2 and P.W.3 would as a whole go to show that they are interested witnesses in order to support the case of the plaintiff. 30. The subsequent conduct of the plaintiff to keep mum for about three years without pursuing the agreement, but he acted only on 15.8.1990 seeking for enforcement of the said agreement would also throw support to doubt the genuineness of the agreement in Exhibit A-5. It has to be considered at this stage as to why the plaintiff was not sending any notice as per the recitals in Exhibit A-5 will also raise further suspicion as to the truth and genuineness of the agreement. Admittedly, no notice was sent during the three months period as stipulated in Exhibit A-5. The reason put forth by the plaintiff was that the defendants 1 to 3 have vacated Enusonai village and they went to Bommathathanur village and purchased properties and therefore, he could not demand execution of sale deed within such three months period and no notice could be sent to them. The plaintiff had also deposed to the effect that the third defendant was in Hosur Town and he could find only at the verge of completion of three years period and therefore, he had taken notice to the defendants only on 15.8.1990. However, the defendants have produced Exhibit B-5, the residence certificate and Exhibit B-6, ration card standing in the name of third defendant, to show that they are residing at Enusonai Village. The series of house tax receipts produced in Exhibit B-4 would also show that the defendants did not vacate the suit village. This would go to show that the version of the plaintiff that he could not take action in pursuance of the sale agreement Exhibit A-5, since the defendants vacated the suit village cannot be a true statement. The series of house tax receipts produced in Exhibit B-4 would also show that the defendants did not vacate the suit village. This would go to show that the version of the plaintiff that he could not take action in pursuance of the sale agreement Exhibit A-5, since the defendants vacated the suit village cannot be a true statement. In the aforesaid circumstances, the execution of Exhibit A-5 sale agreement could not also be a true document to show that the defendants 1 to 3 had agreed to sell the properties as mentioned in Exhibit A-5. The perception of the Courts below in relying upon the evidence of P.W.2 and P.W.3 would justify an unjustifiable claim of the plaintiff and it was based on the support of the interested testimony of P.W.2 and P.W.3. When the Courts below have failed to perceive the correct application of evidence to come to a conclusion so as to render justice, it has become necessary for this Court to interfere with the judgment of the Courts below as per the principles laid down in the judgment of the Hon’ble Apex Court Bondar Singh v. Nihal Singh (supra), which would run as follows:- “4. ...... An appeal under S.100, C.P.C. can be entertained by the High Court only on a substantial question of law. There can be no quarrel with this legal proposition. The scope of powers of High Court under S.100 C.P.C. is a matter of settled law. The learned counsel for the appellant cited several judgments in support of his contention. We do not consider it necessary to discuss these decisions because so far as the question of powers of High Courts under Section 100 C.P.C. is concerned, it needs no discussion. If the findings of the subordinate Courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in appeal under Section100 C.P.C. A High Court cannot shut its eyes to perverse findings of the Courts below. In the present case, the findings of fact arrived at by the lower appellate Court were contrary to evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed.” 31. In the present case, the findings of fact arrived at by the lower appellate Court were contrary to evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed.” 31. However, the learned counsel for the appellants would contend in his argument that even if the agreement Exhibit A-5 was found to be true, the plaintiff should not be granted with the equitable relief of specific performance, since he had uttered lie before the Court. He had cited a judgment of this Court Koothapadayachi and Another v. Arjuna Pillai and two Others (supra). The relevant passage would run as follows: “18. In this case, plaintiff has said that he is in possession of the property and that too on 15.6.1974, the date of Exhibit A-3 agreement. If possession was also handed over on that date as alleged by plaintiff nothing prevented the parties from stating so. There is no statement in Exhibit A-3 that possession was handed over to plaintiff. From the above conduct also, it is seen that the plaintiff has come forward with a case which is not fully true.” 32. The learned counsel for the appellants/defendants 1 to 3 would also submit in his argument that even the agreement was found to be true, the plaintiff was not ready to perform his part of contract and the explanation offered by him for not showing his readiness and willingness within the stipulated period of three months or thereafter was not established and therefore, the compliance of Section 16(c) of the Specific Relief Act is not satisfied and the specific relief cannot be granted. For this principle, he had cited the following judgments:- (i) S.K.M. Mohammed Amanullah represented by his Power Agent A.Alik Akbar Aziz v. T.C.S. Ramasangu Pandian and Others (supra); (ii) His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (supra) (iii) Azhar Sultana v. Rajamani (supra); 33. In the judgment of this Court S.K.M. Mohammed Amanullah represented by his Power Agent A. Alik Akbar Aziz v. T.C.S.Ramasangu Pandian and Others (supra) it has been held as follows:- “10. The suit was filed only on 26.3.1980, more than a year after the issue of notice through the lawyer. There is no explanation by the plaintiff as to why the suit was not filed earlier. The suit was filed only on 26.3.1980, more than a year after the issue of notice through the lawyer. There is no explanation by the plaintiff as to why the suit was not filed earlier. If all the above circumstances are considered cumulatively, the conduct of the plaintiff shows that he was not ready to perform his part of the contract at any time prior to the suit......” 34. In the judgment of the Hon’ble Apex Court His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (supra) the principle of readiness and willingness has been referred as follows:- “2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement i.e., by 27.2.1975.......” 35. In the judgment of the Hon’ble Apex Court Azhar Sultana v. Rajamani (supra), it has been held as follows:- “12. It was, however, held by the High Court that readiness and willingness on the part of the plaintiff to perform her part of contract having been conveyed in a telegraphic notice (Exhibit A-3), it was obligatory on the part of the appellant – plaintiff to examine herself in the suit and as she did not examine herself, the legal requirements envisaged under Section 16(c) of the Act cannot be said to have been complied with. It was furthermore held that as no evidence was adduced to establish that the amount of consideration which was required to be paid to the defendant was available with the plaintiff, she was not ready and willing to perform her part of contract. It was observed that for the aforementioned purpose, contents of the legal notice dated 16.11.1981/20.11.1981 (Exhibit A-3) would not be decisive.” 36. It was observed that for the aforementioned purpose, contents of the legal notice dated 16.11.1981/20.11.1981 (Exhibit A-3) would not be decisive.” 36. In the judgment of the Hon’ble Apex Court Umabai v. Nilkanth Dhondiba Chavan (supra) it has been held that the true nature of the document must be determined by gathering the intention of the parties as well as the circumstances. The relevant passage would run thus:- “30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiffs-respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiffs-respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records.” 37. In the judgment of the Hon’ble Apex Court Manjunath Anandappa v. Tammanasa (supra) it has been held that the conduct of the plaintiff should be taken into account for non-filing the suit within the reasonable time. The relevant passage would run thus:- “30. There is another aspect of the matter which cannot be lost sight of. The plaintiff filed the suit almost after six years from the date of entering into the agreement to sell. He did not bring any material on record to show that he had ever asked Defendant 1, the owner of the property, to execute a deed of sale. He filed a suit only after he came to know that the suit land had already been sold by her in favour of the appellant herein. Furthermore, it was obligatory on the part of the plaintiff for obtaining a discretionary relief having regard to Section 20 of the Act to approach the Court within a reasonable time. Having regard to his conduct, the plaintiff was not entitled to a discretionary relief.” 38. Further, in the discussions held above I have seen the sale agreement in Exhibit A-5 was not a genuine document, but it was propounded by the plaintiff as if the defendants 1 to 3 have executed a sale agreement in his favour agreeing to sell the properties belonging to them. Further, in the discussions held above I have seen the sale agreement in Exhibit A-5 was not a genuine document, but it was propounded by the plaintiff as if the defendants 1 to 3 have executed a sale agreement in his favour agreeing to sell the properties belonging to them. It was found to be a false and therefore, the grant of specific performance in favour of the plaintiff under Section 20 is not sustainable. In the judgment of the Hon’ble Apex Court Citadel Fine Pharmaceuticals v. Ramaniyam Real Estates AIR 2011 SCW 5209 : LNIND 2011 SC 732 : (2012) 1 MLJ 476 it has been observed as follows:- “55. In this connection, we may refer to the Principle Of Equitable Remedies by I.C.F. Spry, Fourth Edition (Sweet & amp; Maxwell, 43 1990). Dealing with the question of ‘Clean Hands’ the learned author opined that where the plaintiff is shown to have materially misled the Court or to have abused its process, or to have attempted to do so, the discretionary relief of specific performance can be denied to him. In laying down this principle, the learned author relied on a decision of the English Court in the case of Armstrong v. Steppard & amp; Short Ltd., (1959) 2 Q.B.384 at page 397 (See Spry Equitable RemedieS Page 243). 56. This Court has also taken the same view in the case of Arunima Baruah v. Union of India and Others (2007) 6 SCC 120 . At paragraph 12, Page 125 of the report, this Court held that it is trite law that to enable the Court to refuse to exercise its discretionary jurisdiction 44 suppression must be of a material fact. This Court, of course, held what is a material fact, suppression whereof would disentitle the suitor to obtain a discretionary relief, would depend upon the facts and circumstances of each case. However, by way of guidance this Court held that material fact would mean that fact which is material for the purpose of determination of the lis.” 39. Furthermore, I could see that the sale agreement was said to have been executed for a total sum of Rs. 13,100/- to which Rs. 12,100/- was said to have been paid on 13.7.1987 and the only amount to be paid was Rs. 1000/- and why such small sum of Rs. Furthermore, I could see that the sale agreement was said to have been executed for a total sum of Rs. 13,100/- to which Rs. 12,100/- was said to have been paid on 13.7.1987 and the only amount to be paid was Rs. 1000/- and why such small sum of Rs. 1000/- was not paid for the whole three years was not explained or offered by sending the said amount through an instrument were not offered or explained. The purchase of stamp paper for engrossing the sale deed produced before the Court would not in any way show that the plaintiff was ready to perform his part of contract throughout from the date of execution of the sale deed till the date of filing of the suit. They were purchased at the fag end of the period of limitation, which would not show his readiness prior to that period. The said purchase of the stamp paper would only go to show that they are nothing but the self serving steps for the purpose of showing his alleged readiness. All these factors ought to have been perceived by the Courts below, in order to render substantial justice to the parties. The trial Court, which is at the gross root level, which had the opportunity of noting the demeanour of the witnesses, ought to have understood the construction of Exhibit A-5 and the evidence given by P.W.2 as dealt with by this Court and should have come to the conclusion of rejecting the plea of granting equitable relief of specific performance, but it had granted the decree for the sake of asking for such a relief. However, the first appellate Court ought to have corrected the finding of the trial Court by properly perceiving the evidence, but it had predetermined itself to confirm the judgment and had confirmed every point without any detailed discussion. 40. The argument of the learned counsel for the plaintiff that the property was worth Rs. 13,100/- only at the time of sale agreement and it cannot be considered that the hike of the property in subsequent years will not entitle the plaintiff to get a sale deed is not sustainable. Because, in the judgment of the Hon’ble Apex Court made in Civil Appeal Nos. 7254 to 7256 of 2002 Saradamani Kandappan v. S. Rajalakshmi and Others it has been categorically held as follows:- “25. Because, in the judgment of the Hon’ble Apex Court made in Civil Appeal Nos. 7254 to 7256 of 2002 Saradamani Kandappan v. S. Rajalakshmi and Others it has been categorically held as follows:- “25. The reality arising from this economic change cannot continue to be ignored in deciding cases relating to specific performance. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance. A purchaser can no longer take shelter under the principle that time is not of essence in performance of contracts relating to immovable property, to cover his delays, laches, breaches and ‘non-readiness’. The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. In these days of galloping increases in prices of immovable properties, to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as the 27 period for performance, did not intend that time should be the essence, will be a cruel joke on him, and will result in injustice. Adding to the misery is the delay in disposal of cases relating to specific performance, as suits and appeals therefrom routinely take two to three decades to attain finality. As a result, an owner agreeing to sell a property for Rs. One lakh and received Rs. Ten thousand as advance may be required to execute a sale deed a quarter century later by receiving the remaining Rs. Ninety thousand, when the property value has risen to a crore of rupees.” 41. The judgment of this Court M.N. Rangasamy v. K.Govindasamy and Others (supra) to the effect that the mere inadequacy of sale consideration would not be a ground for refusing to enforce specific performance of a sale agreement need not be applied in this case because the agreement itself was found as not true. 42. The judgment of this Court M.N. Rangasamy v. K.Govindasamy and Others (supra) to the effect that the mere inadequacy of sale consideration would not be a ground for refusing to enforce specific performance of a sale agreement need not be applied in this case because the agreement itself was found as not true. 42. No doubt, it is true that in the judgment of the Hon’ble Apex Court Syed Destagir v. T.R. Gopalakrishna Setty (supra) it has been categorically laid down that the mere reproduction of phraseology or language mentioned in Section 16(c) of the Specific Relief Act is not required, but the over all willingness as stated in the plaint should have been considered. There is no second opinion in this principle. However, the plaintiff was found to have kept quiet for a long period of three years even though the stipulated period of three months was over and he did not do anything within the said three months and his explanation to the effect that the defendants 1 to 3 were not found in the suit village was found to be false. Therefore, the reliance placed by the learned counsel for the plaintiff would not help to him. 43. The case of the respondent / plaintiff that he was put in possession of the suit property on the date of agreement of sale, in pursuance of the sale agreement was also found to be not proved and the evidence adduced by the plaintiff in this regard that he was put in possession of the suit property was not reliable. In the said judgment of this Court Ramalingam v. Thiruvenkadam (supra), it has been categorically found that for granting the relief of permanent injunction, the primary question to be considered is one of possession on the date of filing of the suit, having considered the failure of the plaintiff to prove his possession on the date of filing of the suit and the said judgment cited by the learned counsel for the respondent is also not helpful to him. 44. In the judgment of the Hon’ble Supreme Court Babu Lal v. Hazari Lal Kishori Lal AIR 1982 SC 818 : (1982) 1 SCC 525 , it has been held as follows:- “5. The contention at the first flush appears to be alluring and plausible, but on a closer scrutiny it cannot be accepted. 6. 44. In the judgment of the Hon’ble Supreme Court Babu Lal v. Hazari Lal Kishori Lal AIR 1982 SC 818 : (1982) 1 SCC 525 , it has been held as follows:- “5. The contention at the first flush appears to be alluring and plausible, but on a closer scrutiny it cannot be accepted. 6. It would be appropriate to refer to the state of law as it existed prior to the amendment of the Specific Relief Act in 1963. One view was that the decree holder does not acquire title or right to recover possession unless a sale deed is executed, in execution of the decree for specific performance. In Hakim Enayat Ulllah v. Khalil Ullah Khan, AIR 1938 All. 432 , a Division Bench of the Allahabad High Court dealing with the question observed: “ A decree for specific performance only declares the right of the decree-holder to have a transfer of the property covered by the decree executed in his favour. The decree by itself does not transfer title. That this is so is apparent from the fact that in order to get title to the property, the decree holder has to proceed in execution in accordance with the provisions of Order 21 of the Code. So long as the sale deed is not executed in favour of the decree holder either by the defendant in the suit or by the Court, the title to the property remains vested in the defendant and till the execution of the sale deed the decree holder has no right to the possession of the property. It is only the execution of the sale deed that transfers title to the property.” Of all it is peculiar to find that the suit filed by the defendants in O.S. No. 172 of 1992 for declaration of their title and for injunction was dismissed. The concept of ownership was not understood by the Courts below. The agreement for sale even if true would confer the right in the property only when it culminates into a sale deed. The said culmination would be achieved only after filing execution proceedings and sale deed has been executed through process of law. Admittedly, no such sale deed has been executed in favour of the plaintiff. In such circumstances, right and title in the suit property is still vested with the first defendant or his legal representatives. The said culmination would be achieved only after filing execution proceedings and sale deed has been executed through process of law. Admittedly, no such sale deed has been executed in favour of the plaintiff. In such circumstances, right and title in the suit property is still vested with the first defendant or his legal representatives. In the said circumstances, the declaration of title as asked for by the first defendant ought to have been granted, with qualification till the execution of the sale deed was done in pursuance of any specific performance decree. The said concept was not applied by the Courts below, but they have rejected the declaratory relief in toto as asked for by the owners of the property. When it was admitted and it was patently clear that first defendant was the owner of the property, how a declaratory decree has not been ordered. In that aspect also, the Courts below have grossly erred. 45. Apart from that, the plaintiff was claiming that he was in possession of the suit property from the date of Exhibit A-5 as he was put in possession by the said document Exhibit A-5. I have already found that the agreement, Exhibit A-5, was not a true and genuine document. The plaintiff has produced adangal extract for the fasli year 1400, 1401 and 1402, which would be relevant for the years 1991 to 1993. He did not produce any revenue record to show that he was in possession from 1987 onwards till the date of filing of the suit. If really, he was given with possession and the defendants 1 to 3 were out of village, certainly the name of the plaintiff would be entered in the revenue records. But no such document have been produced. Per contra, the defendants 1 to 3 have produced Exhibit B-1, the patta pass book standing in their name in respect of the suit property. The said document was dated 22.5.1992. This would go to show that the possession was still with the defendants 1 to 3. All these evidence were not considered by the Courts below to come to a correct conclusion. I could see that the findings of the Courts below were contrary to evidence on record and, therefore, perverse. The said document was dated 22.5.1992. This would go to show that the possession was still with the defendants 1 to 3. All these evidence were not considered by the Courts below to come to a correct conclusion. I could see that the findings of the Courts below were contrary to evidence on record and, therefore, perverse. Therefore, it has become necessary for this Court to interfere with the judgment and decree passed by the Courts below, in order to render substantial justice. Therefore, the questions of law framed in both the appeals have also ended in favour of the appellants / defendants. 46. In view of the findings reached above, I could see that the suit filed by the plaintiff in O.S. No. 382 of 1990 seeking specific performance ought to have been dismissed and the suit filed by the defendants in O.S. No. 172 of 1992 ought to have been decreed declaring their right over the suit properties and for injunction. Therefore, I have no hesitation to allow both the appeals and thereby to set aside the judgment and decree passed by the first appellate Court in affirming the judgment and decree of the trial Court in decreeing the suit. It is needless to say that the judgments and decrees passed by the trial Court are also set aside. 47. Consequently, the suit filed by the respondent/plaintiff in O.S. No. 382 of 1990 is dismissed with costs and the suit filed by the appellants/defendants in O.S. No. 172 of 1992 is decreed as prayed for with costs. Both the Second Appeals are allowed with costs. Consequently, connected Miscellaneous Petitions are closed. Ordered accordingly.