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2014 DIGILAW 3925 (MAD)

Kannan v. Dhanalakshmi

2014-10-17

B.RAJENDRAN

body2014
JUDGMENT 1. The sole defendant in O.S. No. 506 of 1995 on the file of the learned Principal District Munsif Court, Gingee has filed the present second appeal aggrieved by the concurrent judgment and decree passed by the courts below. Pending second appeal, the sole defendant/appellant died and therefore his legal heirs were brought on record as appellants 2 to 5. 2. The suit in O.S. No. 506 of 1995 was filed by the respondent herein for specific performance of the agreement dated 17.06.1989. According to the plaintiff/respondent herein, the sole defendant (since deceased) was the owner of the suit property having purchased it on 19.06.1986. Thereafter, the defendant agreed to sell the suit property in her favour by entering into an agreement on 17.06.1989. The total sale price fixed was Rs.6,100/- out of which the defendant received a sum of Rs.5,000/- as advance from the plaintiff. Upon payment of the balance sum of Rs.1,100/- the defendant has to execute the sale deed in favour of the plaintiff. According to the plaintiff, there was no time limit stipulated in the agreement between the parties for execution of the sale deed. It is also the case of the plaintiff that upon payment of advance amount, the possession of the suit land was given to her by the defendant wherein the plaintiff/respondent herein also put up a hut. While so, 10 days after the agreement dated 17.06.1989, the plaintiff/ respondent herein paid a further sum of Rs.900/- to the defendant and on receipt of the same, the defendant handed over the original title deeds to the custody of the plaintiff. However, the defendant, for one reason or the other, evaded and avoided to execute the sale deed in favour of the plaintiff. While so, the plaintiff received notice on 10.09.1995 in a suit filed by the defendant in O.S. No. 319 of 1995 and only after receipt of the notice did the plaintiff came to know that the defendant is denying to execute the sale deed in her favour. Therefore, on 10.10.1995, the plaintiff/respondent herein caused a legal notice to the defendant calling upon him to execute the sale deed in her favour. Thereafter, the plaintiff has instituted the present suit for specific performance before the trial court in O.S. No. 506 of 1995. 3. Therefore, on 10.10.1995, the plaintiff/respondent herein caused a legal notice to the defendant calling upon him to execute the sale deed in her favour. Thereafter, the plaintiff has instituted the present suit for specific performance before the trial court in O.S. No. 506 of 1995. 3. The defendant contested the suit filed by the plaintiff in O.S. No. 506 of 1995 by filing a written statement, wherein, inter alia, the defendant admitted the execution of the sale agreement dated 17.06.1989 as also the receipt of advance amount of Rs.5,000/-, however, he denied the receipt of further sum of Rs.900/- from the plaintiff. The defendant also admitted the suit filed by him in O.S. No. 319 of 1995, however, denied that possession of the suit property was handed over to the plaintiff on the date of agreement. According to the defendant, the plaintiff was not ready and willing to perform her part of the contract and therefore, he was constrained to cancel the agreement dated 17.06.1989. The defendant also would contend that the plaintiff refused to come forward to get the sale deed executed in her favour and also refused to hand over the title deeds handed over to her and therefore it has become necessary for him to file the suit in O.S. No. 319 of 1995. According to the defendant, he is in possession and enjoyment of the suit property and living there. At no point of time did the possession was handed over to the plaintiff. Therefore, the defendant prayed for dismissal of the suit. 4. Before the trial Court, the plaintiff examined herself as PW1 besides three other witnesses as PWs 2 to 4. On behalf of the Plaintiff, Exs. P1 to P12 have been marked. Similarly, the defendant examined himself as DW1 along with two other witnesses as DWs 2 and 3. On behalf of the Defendant, Exs. B1 to B10 have been marked. The trial court, on appreciation of the oral and documentary evidence, decreed the suit filed by the plaintiff. The decree and judgment passed by the trial court was affirmed by the first appellate Court at the instance of the defendant. Thus, as against the concurrent decisions rendered by the courts below, the present second appeal has been filed by the sole defendant. 5. The decree and judgment passed by the trial court was affirmed by the first appellate Court at the instance of the defendant. Thus, as against the concurrent decisions rendered by the courts below, the present second appeal has been filed by the sole defendant. 5. The main ground of attack made by the learned counsel for the defendant/appellant is that the plaintiff himself has admitted that the sale has to be executed before Ayudha Poojafestival and therefore, there was a period fixed for performance of the contract and it cannot be said that the obligation is without any time limit. Consequently, the suit filed by the plaintiff/respondent herein for specific performance of the agreement dated 17.06.1989, in the year 1995 is hopelessly barred by the period of limitation and the suit is not maintainable. Even if the agreement of sale does not indicate any time limit for performance of the contract, the plaintiff is expected to assert her right on the basis of the agreement dated 17.06.1989 within a reasonable time. In the present case, the petitioner has not produced any evidence to show as to why she remained silent for about six years without insisting the defendant/appellant to execute the sale deed in her favour. Therefore, the alleged non-indication of time limit in the agreement of sale will not enure to the benefit of the plaintiff/respondent herein for extension of the contract. It is the defendant/appellant who has filed the suit in O.S. No. 319 of 1995 in which he had categorically stated that the agreement dated 17.06.1989 stood cancelled. After filing the suit in O.S. No. 319 of 1995, the plaintiff/respondent herein has filed the present suit in O.S. No. 506 of 1995 for specific performance of the agreement. The Plaintiff, who has instituted the suit, has not clearly proved the payment of Rs.900/- alleged to have been paid by her towards sale price. The Plaintiff also did not prove her case by letting in legally acceptable evidence and therefore, the decree and judgment passed by the Courts below has to be set aside. 6. The learned counsel appearing for the plaintiff/respondent, on the other hand, would contend that there is no evidence made available to show that the sale deed has to be executed before the Ayudha Pooja festival. 6. The learned counsel appearing for the plaintiff/respondent, on the other hand, would contend that there is no evidence made available to show that the sale deed has to be executed before the Ayudha Pooja festival. A mere assertion or admission in one portion of the evidence let in on behalf of the plaintiff cannot be taken into account to reject the claim of the plaintiff/respondent herein. In one portion of the evidence, the plaintiff categorically indicated that there was no agreement between the parties to execute the sale deed beforeAyudha Pooja festival and it was rightly taken in to account by both the courts below to hold that there is no period of limitation specified for execution of the sale deed. Therefore, from the date of knowledge or adverse act by the defendant or a categorical denial by the defendant to execute the sale deed, the plaintiff/respondent has filed the suit and it is well within the period of limitation. Further, even prior to the institution of the suit, the plaintiff/respondent has issued a notice calling upon the defendant/ appellant to come forward to execute the sale deed and immediately thereafter, the suit was filed. In the suit the plaintiff/respondent has categorically averred that she came to know about the denial on the part of the defendant/appellant only upon receipt of the summons in the suit instituted by him. Therefore, the courts below have rightly analysed the evidence made available on record and concurrently found that the plaintiff is entitled to succeed in the suit and such a concurrent findings need not be interfered with by this Court in this second appeal. 7. Notwithstanding the above, the learned counsel for the plaintiff/ respondent also brought to the notice of this Court the subsequent developments. On 04.03.2013, as there was no representation on behalf of the appellant, this second appeal was dismissed by this Court for non-prosecution. Thereafter, the plaintiff/respondent herein has filed E.P. No. 56 of 2013 for execution of the sale deed in her favour and a sale deed was also executed by the trial Court in her favour. Further, the plaintiff has filed yet another E.P. No. 36 of 2014 for delivery of possession and based on the same, possession of the suit property was delivered to the plaintiff on 07.01.2014. Further, the plaintiff has filed yet another E.P. No. 36 of 2014 for delivery of possession and based on the same, possession of the suit property was delivered to the plaintiff on 07.01.2014. In the meantime, the defendant/appellants have filed MP No. 2 of 2013 for restoration of the second appeal which was dismissed for default on 04.03.2013. The said petition was allowed by this Court on 20.12.2013 and the second appeal was restored. Therefore, the learned counsel for the plaintiff/respondent would submit that as on date, there is nothing survives for adjudication in this appeal and he prayed for dismissal of the second appeal. 8. I heard the learned counsel for the appellant and the learned counsel for the respondent. I have perused the materials placed on record. When this second appeal was listed for admission, this Court only ordered notice of motion to the respondents and the second appeal has not been admitted. 9. The question of law arise for consideration in this second appeal is as to whether the suit filed by the plaintiff for specific performance of the agreement dated 17.06.1989 is within the period of limitation and is maintainable or not? 10. The agreement entered into between the plaintiff and the defendant on 17.06.1989 is admitted. The sale advance of Rs.5,000/- paid by the plaintiff out of Rs.6,100/- is also admitted. Of course, the defendant disputes that the plaintiff never paid further sum of Rs.900/- towards part of the sale price. According to the defendant, the sale transaction has to be completed on or before Ayudha Pooja festival but the plaintiff did not come forward to get the sale deed executed in her favour by paying the balance sum of Rs.1,100/-. Therefore, the suit filed in the year 1995 for specific performance of the agreement dated 17.06.1989, after six years is not maintainable. 11. A perusal of the agreement dated 17.06.1989, marked as Ex.A1, would indicate that there is no time stipulated for performance of the contract. According to the plaintiff, 10 days after the execution of agreement of sale dated 17.06.1989, on the demand made by the defendant, she has paid a further sum of Rs.900/- towards part of the sale price. At that time, the defendant handed over the original title deeds as also the possession of the suit property. According to the plaintiff, 10 days after the execution of agreement of sale dated 17.06.1989, on the demand made by the defendant, she has paid a further sum of Rs.900/- towards part of the sale price. At that time, the defendant handed over the original title deeds as also the possession of the suit property. However, the plaintiff did not produce the original title deeds before the trial court as document. According to the defendant, the plaintiff did not come forward to get the sale deed executed in her favour, therefore, he cancelled the agremeent of sale. As rightly pointed out by the first appellate Court, the cancellation of the agreement has not been made by the defendant in accordance with law. First of all, the cancellation was not preceded by any notice of intimation to the plaintiff. It is also not the case of defendant that the cancellation of agreement is warranted due to non-performance of the obligation by the plaintiff inspite of his very many demands. It is also not the case of the defendant that after cancellation of the agreement, he had refunded the amount received from the plaintiff towards sale advance. Therefore, both the courts below are right in holding that the defendant failed to prove that the cancellation of the agreement was made in accordance with law by letting in oral or documentary evidence. 12. It is to be noted that the defendant himself has filed the suit in O.S. No. 319 of 1985 after a period of six years from the date of agreement. Only on receipt of summons in the said suit filed by the defendant, the plaintiff has filed the present suit in O.S. No. 506 of 1995. Prior to filing the suit in O.S. No. 506 of 1995, the plaintiff issued a legal notice dated 10.10.1995, Ex.P6 calling upon the defendant to come forward to execute the sale deed. In this notice, the plaintiff has categorically stated that in view of the denial on the part of the defendant to execute the sale deed, the issuance of notice has necessiated. On receipt of the notice, a reply dated 17.10.1995, Ex.P7 was sent by the defendant repudiating the averments. In any event, neither the plaintiff nor the defendant has filed a suit within a period of three years from the date of execution of the agreement under Ex.A1. 13. On receipt of the notice, a reply dated 17.10.1995, Ex.P7 was sent by the defendant repudiating the averments. In any event, neither the plaintiff nor the defendant has filed a suit within a period of three years from the date of execution of the agreement under Ex.A1. 13. As regards the evidence of the plaintiff, as PW1, in one portion of the cross-examination, the plaintiff has deposed that there was a talk to complete the sale before Ayudha Pooja, however, in the next sentence, the plaintiff was quick to add that there was no such agreement. The evidence let in has to be read as a whole, cumulatively and not in isolation. A mere discrepancy or a sentence from the cross-examination cannot be taken in to account to oust the plaintiff from laying her claim. If the evidence of the plaintiff is read as a whole, it is clear that there was no time limit specified for performance of the contract. Even such a time limit alleged to have been agreed between the parties has not been proved by the defendant through his evidence or by production of any other documentary evidence. 14. As regards cancellation of the agreement, as rightly pointed out by the courts below, it is incumbent on the part of the defendant to intimate the alleged cancellation of the agreement to the plaintiff by sending a notice and non-issuance of any such notice would affect the defence of the defendant. It is also not disputed that majority of the sale price was paid by the plaintiff at the time of execution of the agreement itself coupled with the fact that possession of the property was also handed over. According to the plaintiff, the title deeds have also been handed over to her upon payment of Rs.900/- ten days after the agreement of sale. There was no exchange of notice between the parties atleast for about five years. Only when the plaintiff received the summons in the suit filed by the defendant in O.S. No. 319 of 1995, the plaintiff filed the present suit in O.S. No. 506 of 1995 in which it was stated that for the first time, she came to know about the conduct of the defendant in refusing to execute the sale deed after receiving the major amount towards the sale price. Only in the plaint in O.S. No. 319 of 1995, the defendant came out with a plea that the plaintiff did not perform her part of the contract and therefore he cancelled the agreement. Therefore, I am of the view that the question of limitation in the present case would commence only from the date of knowledge of refusal by the defendant and consequently, the suit filed by the plaintiff in O.S. No. 506 of 1995 is within the period of limitation. Both the courts below have rightly dealt with this aspect of the matter and held that the plaintiff had knowledge about the denial on the part of the defendant only on receipt of summons in O.S. No. 319 of 1995. Therefore, the only question of law arise in this second appeal is answered against the defendant/appellants. 15. The subsequent developments in this case has also to be taken note of. This second appeal was earlier dismissed for non-prosecution on 04.03.2013. Thereafter, the plaintiff/respondent herein has filed E.P. No. 56 of 2013 for execution of the sale deed in her favour and a sale deed was also executed by the trial Court in her favour. Further, the plaintiff has filed yet another E.P. No. 36 of 2014 for delivery of possession and based on the same, possession of the suit property was also delivered to the plaintiff on 07.01.2014. In the meantime, the defendant/appellants have filed MP No. 2 of 2013 for restoration of the second appeal which was dismissed for default on 04.03.2013. The said petition was allowed by this Court on 20.12.2013 and the second appeal was restored. Therefore, the contention of the learned counsel for the plaintiff/respondent that as on date, there is nothing survives for adjudication in this appeal is well founded. 16. In the result, the decree and judgment passed by the courts below are confirmed. The second appeal is dismissed, however, there is no order as to costs. Consequently, connected miscellaneous petitions are closed. Appeal dismissed.