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2013 DIGILAW 545 (MAD)

Kondi v. Sellamuthu

2013-01-24

S.VIMALA

body2013
JUDGMENT 1. The plaintiffs, Chellamuthu and Kaliammal, filed the suit in O.S.No.372 of 1984 seeking for declaration and permanent injunction in respect of two items of the suit property. The properties are situated in Salem District, Attur Taluk, Vepampoondi Village, with following survey numbers with corresponding extents:- (i) R.S.No.130/1 – an extent of 56 cents; (ii) R.S.No.130/3 – an extent of 20 cents. 1.1. After the death of Kaliammal, the legal representatives have been impleaded as plaintiffs 3 to 6. The plaintiffs claimed that the first item of the suit property is the ancestral property and the second item of the suit property is the self-acquired property of plaintiffs 2 and 3. Contending that the defendants attempted to trespass into the suit property on 25.08.1984, suit for declaration and injunction has been filed. 1.2. The suit was resisted by the defendants on the following contentions:- (i) The plaintiffs 1 and 3 have executed an agreement to sell the suit property in respect of an extent of 26 cents in item No.1 and the entire extent in item No.2 for the sale consideration of Rs.1,500/-. (ii) The first plaintiff received a sum of Rs.950/-and the third plaintiff received a sum of Rs.450/- as advances and on receipt of balance of Rs.100/-the plaintiffs have to execute the sale deed. (iii) In pursuance of the sale agreement, dated 21.07.1978, possession was handed over to the defendants, therefore, there is no necessity for the defendants to interfere with the possession of the suit property. When the defendants themselves are in possession of the suit property, the question of trespass will not arise. (iv) The defendants have spent a sum of Rs.2,000/- towards improvement of the suit property and they are cultivating the same. 1.3. Based on the pleadings, the following issues were framed:- (i) Whether the first defendant is in possession of second item of the suit property and an extent of 26 cents in first item of the suit property, in pursuance of the sale agreement, is correct? (ii) Whether the plaintiffs are in possession and enjoyment of the suit property? (iii) Whether the plaintiffs are entitled to declaration and injunction? 1.4. The trial court, after consideration of the oral and documentary evidence, granted a decree for declaration, but declined the relief of injunction, with respect to the properties covered under the sale agreement is concerned. 1.5. (ii) Whether the plaintiffs are in possession and enjoyment of the suit property? (iii) Whether the plaintiffs are entitled to declaration and injunction? 1.4. The trial court, after consideration of the oral and documentary evidence, granted a decree for declaration, but declined the relief of injunction, with respect to the properties covered under the sale agreement is concerned. 1.5. Challenging these findings, an appeal was filed in A.S.No.54 of 1997 by the plaintiffs. The first appellate court modified the decree and judgment of the trial court to the extent to which it was appealed against and the appeal was allowed. The first appellate court gave a finding that the finding of the trial court with regard to possession based on sale agreement is incorrect. The first appellate court found fault with the trial court on the reasoning that the burden of proof has been wrongly placed on the defendants. As against this finding, the defendants have filed the second appeal. 1.6. The following substantial questions of law have been framed:- "1. Whether the judgment of the lower appellate court is correct and justified in granting the relief of injunction against the transferee's interest protected under Section 53 of the Transfer of Property Act? 2. Whether the judgment of the lower appellate court is correct and justified in holding that the first appellant is not in possession of the suit properties when admittedly under Ex.B-6 possession was handed over on the date of its execution?" 2. The suit in O.S.No.425 of 1988 was filed by the plaintiff-Kondi seeking the relief of specific performance based upon the sale agreement dated 21.11.1978. 2.1. The suit was resisted by the defendants on the following contentions:- (i) The defendants never agreed to sell the suit property and they did not execute any sale agreement. (ii) The defendants did not receive any money towards the sale consideration. (iii) The possession of the suit property was never handed over to the plaintiff. (iv) The suit filed by the defendants in O.S.No.372 of 1984 must be treated as part of this case. 2.2. The trial court framed the following issues:- (i) Whether the plaintiff is entitled to the relief claimed? (ii) Whether the contention that the defendants did not sign in the sale agreement, dated 21.11.1978, is true? (iii) Whether the averment that the value of the suit property would be Rs.15,000/-is correct? (iv) To what other reliefs? 2.2. The trial court framed the following issues:- (i) Whether the plaintiff is entitled to the relief claimed? (ii) Whether the contention that the defendants did not sign in the sale agreement, dated 21.11.1978, is true? (iii) Whether the averment that the value of the suit property would be Rs.15,000/-is correct? (iv) To what other reliefs? 2.3. The trial court, on a consideration of the evidence available, came to the conclusion that the sale agreement is true and that the defendants are bound to execute the sale deed in favour of the plaintiffs after receiving a sum of Rs.100/-. The plaintiff was also given liberty to deposit a sum of Rs.100/-in the court and to get the sale deed executed from the Court, in case of any default by the defendants. 2.4. As against this decree and judgment, an appeal was filed by the defendants in A.S.No.52 of 1997. The first appeal was allowed. As against which, the plaintiff has filed this second appeal in S.A.No.1057 of 1999. 2.5. The following substantial question of law has been framed:- "Whether the suit is barred by limitation?" 3. Since the issues to be decided in the above appeals are inter-related, the above appeals are being disposed of by this common judgment. 4. The parties to this appeal are described as per the status assigned to them in the suit in O.S.No.425 of 1988, wherein Kondy is the plaintiff and Chellamuthu and Krishnan are the defendants. 5. The suit filed in O.S.No.425 of 1988 is for the relief of specific performance of the alleged sale agreement dated 21.11.1978. The execution of the sale agreement is denied by the defendants. As the execution of sale agreement is denied, it is the duty of the plaintiff to prove the execution of the sale agreement. Kondi, the plaintiff has been examined as P.W.1. As per his evidence two attesting witnesses are dead. One Kulandaivel, S/o. Andiappan has been examined as P.W.2, who has spoken about the signature of his father under Ex.A1 sale agreement. P.W.3 Muthusamy has spoken about possession of suit property with the plaintiff. No motive has been alleged as to why the plaintiff Kondi should concoct the sale agreement. 5.1. The court has compared the signature of the executants under Ex.C1 (vakalat) and has given a finding that the signature of the executants are the same as that of the signature under Ex.A-1. No motive has been alleged as to why the plaintiff Kondi should concoct the sale agreement. 5.1. The court has compared the signature of the executants under Ex.C1 (vakalat) and has given a finding that the signature of the executants are the same as that of the signature under Ex.A-1. Finding that the sale agreement is true, the trial court has ordered specific performance of the sale agreement. 6. So far as the first appellate court is concerned, the Court has given a finding that the sale agreement cannot be believed because, (a) the writer of the document is not examined (b) sale agreement is not registered and (c) the sale agreement has not been sent for hand writing expert's opinion. 7. The learned counsel on respective side argued on the authenticity of Ex.A-1 based upon the findings given on the judgement of the trial court and first appellate court. 7.1. So far as the genuineness of Ex.A1 sale agreement is concerned, it is not a document requiring registration at the time when it was executed. The registration of sale agreement in Tamil Nadu has been made compulsory by virtue of Tamil Nadu Act 29 of 2012 amending Section 17 of the Registration Act making agreement relating to sale of immovable property (value of Rs.100/- and upwards). 7.2. The trial court has given a finding on genuineness based upon the evidence of P.W.1 and P.W.2, apart from comparing the signature of the defendants with that of the admitted signature. Obtaining the opinion of the handwriting expert is not imperative at all times. 8. The main contention raised is that the suit for specific performance is barred by limitation. In order to appreciate this contention, certain factual details are necessary. (a) The sale agreement is dated 21.11.1978. (b) The defendants herein filed the suit in O.S.No.372 of 1984 for declaration of title and for injunction on 05.08.1984 (5 years and 9 months, after the sale agreement). (c) The plaintiff-Kondi has entered first appearance on 19.12.1984. (d) Kondi has preferred the complaint alleging trespass and causing hurt on 12.10.1984. (e) Written statement has been filed on 20.3.1985. (f) The suit for specific performance has been filed on 15.11.1988. 8.1. (c) The plaintiff-Kondi has entered first appearance on 19.12.1984. (d) Kondi has preferred the complaint alleging trespass and causing hurt on 12.10.1984. (e) Written statement has been filed on 20.3.1985. (f) The suit for specific performance has been filed on 15.11.1988. 8.1. The first appellate court has pointed out that the plaintiff Kondi ought to have filed the suit within three years atleast from 19.12.1984 (first appearance) / 12.10.1984 (filing of criminal complaint) / 20.03.1985 (date of filing of written statement) and as it is not done, suit is barred by limitation. 9. The crux of the arguments advanced by the learned counsel for the plaintiff is that neither time limit has been prescribed under sale agreement nor the plaintiff had knowledge about refusal of performance till Ex.A-3-reply notice and therefore, the suit is not barred by limitation. The further contention of learned counsel for the plaintiff is that first time notice demanding performance was issued only under Ex.A-2-notice, dated 18.10.1988, and only on 22.10.1988 (Ex.A-3) through reply notice the plaintiff had knowledge that the performance is refused and therefore, the suit filed on 15.11.1988 is not barred by limitation. 9.1. The reply by the learned counsel for the defendants is that the refusal of performance need not always be expressed and it can be implied also. It is pointed out that the filing of criminal case, which ended in conviction of the defendants itself, is an incident which would have given express notice about the performance being refused. It is further contended that the filing of the suit by the plaintiff wherein there was a prayer for injunction has been asked for, would have given sufficient notice to the plaintiff that the performance is refused. 9.2. In order to appreciate the contention, it is necessary to look into recitals contained in Ex.A-1-sale agreement. No doubt, no time limit has been prescribed under Ex.A-1. The plaintiff has been given liberty to pay the balance of Rs.100/-on any date. What is the construction to be placed for the phrase "any date" is the issue to be considered. Does it mean, any date till the vanishing of the world or any date subject to the convenience of the plaintiff is the issue. 9.3. The plaintiff has been given liberty to pay the balance of Rs.100/-on any date. What is the construction to be placed for the phrase "any date" is the issue to be considered. Does it mean, any date till the vanishing of the world or any date subject to the convenience of the plaintiff is the issue. 9.3. In the evidence of P.W.1, he would state that as he was working as a coolie, anticipating that a person in occupation as a coolie would need lot of time, no time limit was prescribed under Ex.A1. The defendants would not have been interested in insisting upon the time limit, since major part of sale consideration i.e., 1400/-, out of 1500/- has been paid under Ex.A1. Therefore, as such, court can infer that no time limit has been prescribed under Ex.A1. 9.4. When the agreement do not prescribe any time limit, then how to construe the time limit for the purpose of limitation. As per Article 54 of Limitation Act, the period of limitation would be either three years from the date of agreement or where there is no time limit prescribed, three years from the date of refusal of performance. When the performance was refused by the defendants? 9.5. In this case, from which date / from which time performance was refused is the crucial issue. Given the widest latitude, the period of limitation would be atleast, the date on which there had been clash involving physical violence between the plaintiff and the defendants, leading to filing of criminal complaints. As per Ex.A-5 this incident has taken place on 12.10.1984. The suit ought to have been filed on or before 12.10.1987. But the suit has been filed only during 1988. Therefore, the suit is clearly barred by limitation. 9.6. Hence the finding of the first appellate court that the plaintiff Kondi ought to have filed the suit within three years from 12.10.1984 (filing of criminal complaint) or within three years from 20.03.1985 (date of filing of written statement) and the suit which is filed on 15.11.1988, which is not within three years, either from 12.10.1984 or 20.04.1985, is barred by limitation, is correct. 10. The plaintiff in O.S.No.372 of 1984 has filed the suit completely suppressing the dispute involving the sale agreement. The plaint has been filed as if the defendants are the stranger attempting to interfere with the possession and enjoyment. 10. The plaintiff in O.S.No.372 of 1984 has filed the suit completely suppressing the dispute involving the sale agreement. The plaint has been filed as if the defendants are the stranger attempting to interfere with the possession and enjoyment. Therefore, even though the suit for specific performance is dismissed on technical grounds, the case of the respondent in the appeal cannot be said to be valid. Even though the appellant claims to be in possession by virtue of the sale agreement, still, he can claim protection under Section 53 of the Transfer of Property Act provided that he had been ready and willing to perform his part of the contract. Since the appellant has failed in filing the suit for specific performance, he is not entitled to the protection under Section 53 of the Transfer of Property Act. Once the claim of the appellant for the relief of specific performance is dismissed on the point of limitation, consequentially the claim of declaration by the respondent has to be granted. Admittedly, there is no dispute / there cannot be any dispute with regard to the title of the respondent. Therefore, the suit in O.S.No.372 of 1984 has to be decreed. Therefore, the suit in O.S.No.372 of 1984 is decreed, though for different reasons. 11. In the result, both S.A.Nos.1057 of 1999 and 795 of 1999 are dismissed. The judgment and decree of the District Munsif Court, in O.S.No.425 of 1988, decreeing the suit is set-aside and the decree in A.S.No.52 of 1997, dismissing the suit, is confirmed. No costs.