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2014 DIGILAW 1186 (MAD)

Nagappan @ Mannangatty (died) v. Gopalakrishnan

2014-06-06

R.KARUPPIAH

body2014
JUDGMENT 1. This Second appeal originally filed by the appellants 1 and 2, who are the defendants 1 and 2 in the original suit against the decree and judgment dated 21.07.1997 made in A.S.No.87 of 1995 on the file of the Principal District Court, Pondicherry reversing the judgment and decree dated 25.07.1995 made in O.S.No.178 of 1990 on the file of the I Additional Subordinate Court, Pondicherry. 2. During the pendency of the second appeal, both appellants 1 and 2 died and their legal heirs are impleaded as appellants 3 to 9. 3. For the sake of convenience, the plaintiff in the original suit is referred as respondent and defendants 1 and 2 in the original suit are referred as deceased appellants 1 and 2 and the legal heirs of the deceased defendants 1 and 2 are referred as appellants 3 to 9 hereafter. 4. The respondent/plaintiff filed a suit for specific performance of a contract. Briefly the case of the respondent is that ''A'' schedule suit property was originally belonged to the father of the deceased appellants 1 and 2 namely, Venkatesan by virtue of sale deed dated 01.07.1947 and he died leaving behind the appellants 1 and 2 as his legal heirs. The deceased appellants 1 and 2 entered into an agreement of sale on 05.02.1987 with the respondent to sell the ''A'' schedule suit property for a sum of Rs.25,000/- and received Rs.10,000/- as advance. As per the terms of the agreement of the sale, the deceased appellants 1 and 2 have to obtain and produce the certificate of encumbrance, copy of patta in respect of “A'' schedule property and also obtain permission from the competent Revenue Authorities for registration of sale deed and period of 30 days time was prescribed for execution of sale deed. In the above said agreement, the boundaries of the schedule mentioned property wrongly described by mistake as “to the north of Govindasamy's house, to the west of Kamaraj Street, to the south of appellants 1 and 2's plot, to the east of the house of formerly Krishnasamy Udaiyar and presently Ranganathan”, instead of “west and south of the street, to the east of the plot of Krishnasamy Udaiyar, to the north of the plot of Munisamy Gramany” as per the sale deed dated 01.07.1947. The property described as B schedule in the plaint as shown in the agreement of sale. The property described as B schedule in the plaint as shown in the agreement of sale. It is also averred in the plaint that the deceased appellants 1 and 2 further received sum of Rs.1,500/- on 05.03.1988, Rs.500/- on 06.04.1988 and Rs.1,870/- on 16.10.1988 towards sale consideration, but they failed to execute the sale deed in spite of repeated demand made by the respondent. The respondent obtained the permission from the competent authority and he was ready, but the deceased appellants 1 and 2 did not choose to receive the balance consideration and to execute the sale deed in favour of the respondent, without any valid reason. Therefore, the respondent issued a legal notice to the deceased appellants 1 and 2 on 05.04.1989. The deceased appellants duly acknowledged the above said notice, but failed to respond. Hence, the respondent filed the suit for specific performance to execute the sale deed in respect of ''A'' schedule property. 5. The deceased appellants 1 and 2 filed a written statement in which, it is stated that appellants 1 and 2 have correctly described the property offered to be sold in the agreement and it does not bear any wrong description. If there is wrong in the description, it is evident that there could be no concluded contract and consequently, the respondent cannot enforce the above said agreement of sale and hence, the suit is not maintainable. Further, the deceased appellants 1 and 2 always ready to sell the property as described in the agreement of sale. Only, the respondent with deliberate intention to avoid performance to his obligation, now he is trying to make a false claim as if the property is wrongly described in the agreement. The respondent is not entitled to the relief of specific performance in respect of some other property, which is not covered in the agreement of sale. The deceased appellants 1 and 2 never agreed to correct the schedule of property. The alleged payment of part of sale consideration of Rs.1,500/-, Rs.500/- and Rs.1870/-are all false and therefore, both the deceased appellants prayed for dismissal of the suit filed by the respondent. 6. The trial Court has framed seven issues for consideration. On the side of the respondent, three witnesses were examined as PW1 to PW3 and marked eight documents as Exs.A1 to A8. 6. The trial Court has framed seven issues for consideration. On the side of the respondent, three witnesses were examined as PW1 to PW3 and marked eight documents as Exs.A1 to A8. On the side of the appellants, two witnesses were examined as DW1 and DW2 and no documents were marked. 7. The trial Court has considered the above said oral and documentary evidence and finally dismissed the suit but directed the deceased appellants 1 and 2 to return the advance amount of Rs.13,870/- with 6% interest. Aggrieved over the above said finding of the trial Court, the respondent/plaintiff preferred first appeal in A.S.No.87 of 1995. The First Appellate Court allowed the first appeal and set aside the decree and judgment passed by the trial Court and held that the respondent entitled the relief of specific performance and directed the deceased appellants 1 and 2 to execute the sale deed in favour of the respondent on receipt of the balance sale consideration of Rs.11,130/- in respect of the property mentioned in Ex.A1 (i.e.,) as described in 'B' schedule property and entitled as shown in 'A' schedule in the plaint. Aggrieved over the above said reversal findings of the first appellate Court, the deceased appellants 1 and 2 preferred the second appeal. 8. This Court has admitted the above said second appeal on the following Substantial Questions of Law: (1) Whether the first appellate Court committed an error in decreeing the suit for the relief of specific performance in respect of the property mentioned in Ex.A1, when the respondent/plaintiff has not come forward with clean hands? (2) Whether the first appellate Court committed an error in decreeing the suit when the description of the suit property in the plaint does not tally with the description of the property in the sale agreement marked as Ex.A1? (3) Whether the first appellate Court misread the evidence and failed to consider the materials on record in decreeing the suit for the relief of specific performance? 9. The respondent herein filed two petitions in CMP No.823 of 2012 and 999 of 2013 to receive additional documents. The learned counsel appearing for the respondent submitted that CMP No.999 of 2013 may be allowed and no objection to receive the translated tamil version of Ex.A2. 9. The respondent herein filed two petitions in CMP No.823 of 2012 and 999 of 2013 to receive additional documents. The learned counsel appearing for the respondent submitted that CMP No.999 of 2013 may be allowed and no objection to receive the translated tamil version of Ex.A2. Therefore, the above CMP No.999 of 2013 filed for receiving the tamil version of Ex.A2 received as additional document and marked as Ex.A9 and to be allowed accordingly. 10. With regard to CMP No.823 of 2012, the respondent herein filed the above said petition to receive copy of order dated 01.02.2010 passed by the Sub-Collector and a copy of sale deed dated 01.02.2007 as additional evidence. The learned counsel appearing for the respondent would submit that during the pendency of the second appeal, the appellants are tried to get patta, but, the Tahsildar had rejected to grant Patta for entire lands and to prove the same, the respondent seek permission to mark the document. The learned counsel appearing for the respondent has also submitted that the boundaries mentioned in a sale deed dated 01.02.2007 relating to adjacent property proved the case of the respondent and therefore, wanted to file the above said document to show the boundary recitals. The learned counsel appearing for the appellants would submit that the first document is only during the pendency of the second appeal and the second document is concerned only on examination of vendor of the document, the boundary recitals can be taken for consideration. Therefore, both the documents are not relevant to decide the case and further, the documents cannot be marked in the second appeal stage. As rightly pointed out by the learned counsel appearing for the appellants, the above said two documents seeking for marking as additional evidence cannot be permitted since the above said documents are not relevant documents and also cannot be received at the stage of second appeal. Therefore, the above said CMP is liable to be dismissed. 11. Heard the learned counsel appearing for the appellants and the respondent and perused the materials available on records. 12. Admittedly, the respondent herein filed a suit for specific performance on the basis of Ex.A1 agreement of sale dated 05.02.1987. The appellants have not denied the execution of the above said Ex.A1 agreement of sale. 13. 11. Heard the learned counsel appearing for the appellants and the respondent and perused the materials available on records. 12. Admittedly, the respondent herein filed a suit for specific performance on the basis of Ex.A1 agreement of sale dated 05.02.1987. The appellants have not denied the execution of the above said Ex.A1 agreement of sale. 13. The main contention of the appellants before the trial court is that the deceased appellants 1 and 2 who are the defendants in the original suit always ready and willing to sell the property as described in Ex.A1 agreement of sale. But, the respondent falsely claimed the entire property purchased under Ex.A2 sale deed dated 01.07.1945 by the father of the appellants 1 and 2 namely Venkatesan. The further case of the appellants before the trial court is that the respondent deliberately avoided the performance of his obligation and further denied the alleged three payments by the respondent as part of sale consideration. 14. The trial court considering the oral and documentary evidence adduced on either side and finally held that the Ex.A1 agreement of sale proved as genuine document and the alleged part payments of sale consideration paid by the respondent on 05.03.1988, 06.04.1988 and 16.10.1988 (i.e.,) the payment of Rs.1500/-, Rs.500/- and Rs.1870/-are also proved as true. But, the trial court has discussed about the description of properties mentioned in Ex.A1 agreement of sale and the claim of the respondent in the plaint and finally held that the respondent is not entitled to the relief of specific performance and only entitled to return of the part of sale consideration paid by the respondent. 15. The first appellate court considering both side contentions and finally held that the respondent is not entitled to purchase the entire property mentioned in document of title namely Ex.A2, (i.e.,) 'A' schedule property shown in the plaint, but, the respondent is entitled only the property mentioned in Ex.A1 agreement of sale (i.e.,) 'B' schedule property shown in the plaint and therefore, the first appellate court has directed the appellants to execute the sale deed in favour of the respondent on receipt of balance sale consideration of Rs.11,130/- in respect of the property mentioned in Ex.A1 (i.e.,) 'B' schedule property. 16. 16. The learned counsel appearing for the appellant submitted that from the description of the schedule of properties mentioned in Ex.A1 agreement of sale and Ex.A2 title deed revealed that both properties are different properties and therefore, the trial court has correctly rejected the relief of specific performance, but, the first appellate court has wrongly decreed the suit and granted the relief of specific performance in respect of B-schedule mentioned property (i.e.,) described in Ex.A1 agreement of sale. 17. Per contra, the learned counsel appearing for the respondent would submit that in Ex.A1 agreement of sale itself, it is clearly stated that the property intended to sell to the respondent is originally belonged to the father of the deceased appellants 1 and 2, by way of purchase under Ex.A2 sale deed dated 01.07.1947 and therefore, the deceased appellants 1 and 2 executed Ex.A1 agreement of sale in respect of entire property purchased under Ex.A2 sale deed dated 01.07.1947 and hence, the respondent is entitled to purchase the entire property under Ex.A1 agreement of sale. The learned counsel further submitted that only the boundaries have wrongly given in Ex.A1 and therefore, the respondent seeking the relief of execution of sale deed in respect of B-schedule with correct boundaries. But, the first appellate court has granted the relief of specific performance as described in Ex.A1 agreement of sale. The learned counsel further submitted before this Court that the respondent has no objection to direct the appellants to execute the sale deed as per Ex.A1 agreement of sale as directed by the first appellate court. 18. But, the first appellate court has granted the relief of specific performance as described in Ex.A1 agreement of sale. The learned counsel further submitted before this Court that the respondent has no objection to direct the appellants to execute the sale deed as per Ex.A1 agreement of sale as directed by the first appellate court. 18. Admittedly, the respondent herein filed a suit for specific performance and in the plaint, the respondent has given two schedule of properties as A and B schedule as follows:-'A' Schedule of Property: In Pondicherry Registration District and Oulgaret Sub Registration District, Shanmugapuram, a portion of Dry land (plot) bearing cadestre No.2039 2/2 R.S.No.146/18, Patta No.1303 and bounded by to the west and south of Street to the east of manai of Krishnasamy Odayar and the north of Munisamy Gramany and covering an area of 3 kuzhis 3 veesoms.'' 'B' Schedule of Property: In Pondicherry Registration District, oulgaret Sub Registration District, Shanmugapuram, Cadastre No.2039 2/2, R.S.No.146/18, Patta No.1303 and measuring south north 50 feet, east to west 39 feet and bounded by to the north of Govindasamy's house, to the west of Kamaraj Street, to the south of plots of defendants and to the east of Krishnasamy Odayar and at present Ranganathan's House.'' 19. The main contention of the respondent is that the intention of parties at the time of execution of Ex.A1 agreement of sale is to sell the property mentioned as B-schedule only, but, wrongly stated in Ex.A1 agreement of sale shown the boundaries as mentioned in A-schedule and therefore, the respondent is entitled to obtain sale deed as the boundaries shown in A-schedule in the plaint. 20. Per contra, the learned counsel appearing for the appellants submitted that the appellants are always ready and willing to sell the property as shown in Ex.A1 agreement of sale, but, the respondent falsely claimed more extent than Ex.A1 and requests to execute the sale deed. The appellants further submitted that since the properties shown in Ex.A1 agreement of sale and the claim of the respondent in the plaint are differs and therefore, the respondent is not entitled to the relief of specific performance as rightly held by the trial court. 21. In the instant case, the execution of Ex.A1 agreement of sale is not disputed by both sides. 21. In the instant case, the execution of Ex.A1 agreement of sale is not disputed by both sides. Further, the respondent has proved that he has the paid part of sale consideration of Rs.1500/-, Rs.500/- and Rs.1870/- on 05.03.1988, 06.04.1988 and 16.10.1988 respectively as per Ex.A4 to Ex.A6 apart from earlier part of sale consideration for Rs.10,000/-as shown in Ex.A1 agreement of sale as held by both courts below. The above said part payments and also the oral evidence adduced on the side of the respondent reveal that the respondent is always ready and willing to perform his part of the contract as per Ex.A1 agreement of sale. 22. The respondent has claimed to execute the sale deed in respect of the property described as shown in B-schedule property in the plaint since the description of properties wrongly mentioned in Ex.A1 agreement of sale and the intention of both parties at the time of execution of sale deed is only to sell the entire property mentioned in the earlier document of title (i.e.,) Ex.A2. Therefore, the respondent is entitled to purchase the entire property as shown in B-schedule. As already discussed, the trial court has rejected the relief sought for in the specific performance and directed the appellants to pay the part of sale consideration to the respondent. The first appellate court has held that the respondent is entitled to the relief of specific performance to execute the sale deed only in respect of B-schedule property (i.e.,) as shown in Ex.A1 in the plaint and not entitled to the entire property (i.e.,) A-schedule property mentioned in the plaint. 23. The learned counsel appearing for the respondent submitted before this Court that the respondent accepted the findings of the first appellate court and ready to obtain sale deed as per description of property mentioned in Ex.A1 agreement of sale. 24. A careful reading of Ex.A1 agreement of sale revealed that the property agreed to sell to the respondent, only the portion of property already purchased by the appellants predecessor as per sale deed dated 05.07.1947. It is not the case of the appellants that the appellants have not agreed to sell the property relating to the property mentioned in the earlier sale deed Ex.A2 dated 05.07.1947. It is not the case of the appellants that the appellants have not agreed to sell the property relating to the property mentioned in the earlier sale deed Ex.A2 dated 05.07.1947. Therefore, it is clear that both parties entered into an agreement to sell the property only relating to portion of the property purchased in the earlier sale deed. As rightly discussed by the first appellate court, in Ex.A1 agreement of sale, the lesser extent was mentioned then the earlier sale deed Ex.A2. In the above said circumstances, the respondent is entitled to purchase the property only as per Ex.A1 agreement of sale and not entitled to entire property as per Ex.A2 earlier sale deed. Therefore, the first appellate court has correctly discussed the oral and documentary evidence adduced on either side and granted the decree for specific performance only in respect of the property mentioned in Ex.A1 (i.e.,) B-schedule and no illegality in the above said findings. The contention of the appellants is that the description of properties in Ex.A1 differs from the earlier sale deed and on that ground the respondent is not entitled to the relief of specific performance cannot be accepted. From the above said discussion, this Court is of the view that the appellate court has not committed any error in decreeing the suit and granted the relief of specific performance in respect of the property mentioned in Ex.A1 agreement of sale and answered all the three substantial questions of law as against the appellants and in favour of the respondent. 25. In the result, the second appeal is dismissed and confirmed the decree and judgment passed by the first appellate court in A.S.No.87/1995. C.M.P.No.999 of 2013 is allowed and C.M.P.No.823 of 2012 is dismissed and C.M.P.No.1096 of 2009 is also closed. No order as to costs.