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2014 DIGILAW 4499 (MAD)

Rajendran (died) v. Dhanalakshmi

2014-12-02

V.M.VELUMANI

body2014
Judgment : 1. This Second Appeal has been filed against the judgment and decree dated 08.02.2005, made in A.S.No.3 of 2004 on the file of Subordinate Court, Paramakudi, confirming the Judgment and Decree, dated 10.10.2003, made in O.S.No.108 of 2002 on the file of District Munsif Court, Paramakkudi. 2. The defendant in O.S.No.108 of 2002 is the appellant herein. The trial Court rejected the contention of the appellant and decreed the suit, on 10.10.2003. On 08.02.2005, the first Appellate Court confirmed the said Judgment and Decree, dated 10.10.2003. Aggrieved over the Judgment and Decree passed by the Courts below, the appellant/defendant filed the present second appeal. Pending second appeal, the sole appellant died and the legal representatives of the deceased appellant, who are wife and son of the appellant/defendant, were brought on record as appellants 2 and 3, vide order, dated 24.07.2012, made in M.P.(MD) Nos.1 to 3 of 2012. 3. The parties are referred to as per their rank in the suit. 4. The plaintiffs are the legal representatives of one Meenakshi Sundaram, who was the original owner of the suit property. The said Meenakshi Sundaram died in November, 1997. After his death, the plaintiffs, who are the wife, sons and daughters of Meenakshi Sundaram, inherited the suit property. In the year 1994, the defendant approached the plaintiff-Meenakshi Sundaram to sell the property. 5. While the said Meenakshi Sundaram was alive, he agreed to sell the property to the defendant. The said Meenakshi Sundaram and his sons entered into an agreement of sale with the defendant. According to the plaintiffs, the agreed sale consideration was at Rs.1,50,000/-. The defendant paid a sum of Rs.40,000/- as advance and agreed to pay the balance amount within three years and get the sale deed executed in his favour. The defendant did not pay the balance sale consideration in spite of repeated demands including the notices, dated 11.05.2002 and 03.06.2002. The defendant taking advantage of the fact that the plaintiffs are residing far away from the suit properties, is evading payment of balance sale consideration and trespassed into the suit property and made certain alterations without the permission of the plaintiffs. As the defendant, committed breach of agreement, he is not entitled to get refund of advance amount, as the agreement of sale expired by efflux of time. As the defendant, committed breach of agreement, he is not entitled to get refund of advance amount, as the agreement of sale expired by efflux of time. The defendant from 16.06.2002, is informing everybody that he is going to let out the suit property, create mortgage, lease and sell the property. Hence, the plaintiffs have filed the suit for permanent injunction restraining the defendant from creating any mortgage or lease out or injunction restraining the defendant from changing physical features of the suit property. 6. According to the defendant, the agreed sale consideration is only Rs.40,000/-. He paid Rs.30,000/- as advance and discharged the mortgage created by Meenakshi Sundaram by paying Rs.6,000/- and paid the balance sale consideration of Rs.4,000/-to the first plaintiff. He has repaired the suit property by spending Rs.1,50,000/-. Having received the entire sale consideration, the plaintiffs are evading execution of the sale deed. They assured him that as he is in possession, he will not be put to loss. The plaintiffs have received the entire sale consideration as per the agreement. They are liable to execute the sale deed and the sale agreement is barred by limitation and the plaintiffs cannot execute the same. 7. On these pleadings, the learned trial Judge framed necessary issues. 8. The first plaintiff was examined as PW1 and marked Exs.A1 to A7. The defendant examined himself as DW1 and one Govindasamy, his paternal uncle was examined as DW2 and Exs.B1 and B2 were marked. 9. The learned District Munsif considered the pleadings and evidence and decreed the suit. The learned District Munsif, held that the defendant had altered the agreement of sale by erasing the original sale consideration mentioned and typed the sale consideration as Rs.40,000/-. Further, there is a doubt about the signature of Meenakshi Sundaram, as it differs from the signature in the first page. Further, the typing in other pages also differ. For the above reasons, the learned District Munsif, rejected the contentions of the defendant, accepted the contentions and evidence of the plaintiffs and decreed the suit. 10. Against the said Judgment and Decree, dated 10.10.2003, made in O.S.No.108 of 2002 on the file of District Munsif Court, Paramakudi, the appellant has filed A.S.No.3 of 2004 on the file of Subordinate Court, Paramakudi. The learned Subordinate Judge, Paramakudi, framed necessary points for consideration. 11. 10. Against the said Judgment and Decree, dated 10.10.2003, made in O.S.No.108 of 2002 on the file of District Munsif Court, Paramakudi, the appellant has filed A.S.No.3 of 2004 on the file of Subordinate Court, Paramakudi. The learned Subordinate Judge, Paramakudi, framed necessary points for consideration. 11. The learned Subordinate Judge, Paramakudi, considered the pleadings, evidence and Judgment and Decree of the trial Court and dismissed the first appeal. The learned Subordinate Judge examined the agreement of sale marked as Ex.B1 and concurred with the findings of the learned trial Judge. 12. The defendant has filed the present second appeal challenging the Judgment and Decree of the Courts below. 13. At the time of admission of the second appeal, this Court framed the following substantial questions of law: "1. Whether the Courts below is right in law in decreeing the suit for bare injunction restraining the appellant from alienating or encumbering the suit property filed by the respondents/plaintiffs when there is no cause of action accrued for the respondents? 2. Whether the Lower Appellate Court is right in law in determining the points for consideration from correct stand point and proper perspective as required under Order 41 and Rule 31 of the Civil Procedure Code?." 14. Heard Mr. S.Sivathilakar, learned counsel appearing for the appellants and Mr. S.Deenadhayalan, learned counsel appearing for the respondents. 15. The learned counsel for the appellants argued that the Courts below erred in decreeing the suit and dismissing the appeal, for the following reasons. (a) The plaintiffs failed to prove their case by adducing substantial, oral as well as documentary evidence. (b) The Courts below decreed the suit based on surmises and conjectures. (c) The Courts below wrongly placed the burden of proof on the defendant, when it is for the plaintiffs to prove their case. (d) Once the first plaintiff admitted the execution of agreement of sale-Ex.B1, the Courts below ought to have dismissed the suit, as Ex.B1 is true and valid. (e) Admittedly, the defendant is in possession and he is entitled to carry out the necessary repairs. (f) The Courts below ought to have seen that there is no cause of action for the suit, as the plaintiffs have not specifically pleaded in the plaint regarding alienation and mutation of revenue records. (e) Admittedly, the defendant is in possession and he is entitled to carry out the necessary repairs. (f) The Courts below ought to have seen that there is no cause of action for the suit, as the plaintiffs have not specifically pleaded in the plaint regarding alienation and mutation of revenue records. (g) The Courts below erred in rejecting the evidence of the defendant as DW1 with regard to agreement of sale Ex.B1 on the ground that another witness was not examined. Any one of the witnesses examined is sufficient to prove the genuineness of agreement of sale. (h) The plaintiffs have not come to the Court with clean hands. (i) The first appellate Court failed to frame the points for determination from correct stand and proper perspective and has failed to give any independent finding regarding the genuineness of Ex.B1 sale agreement as required under Order 41 Rule 31 of C.P.C. 16. Per contra, the learned counsel for the respondents argued that a) the Courts below have properly considered all the materials in a proper perspective and have passed the Judgment and Decree in favour of the plaintiffs; b) the defendant has altered the agreement of sale Ex.B1 by substituting the sale consideration as Rs.40,000/- in the place of original sale consideration of Rs.1,50,000/-; c) the Courts below examined Ex.B1 thoroughly and found out many infirmities and suspicion about the signatures of original owner and the first plaintiff and Ex.B1 as a whole; d) the Courts below have rejected Ex.B1 by giving cogent and valid reasons; e) the plaintiffs by the oral evidence of the first plaintiff as PW1 and documentary evidence have proved their case. The contention of the defendant that the suit was decreed on surmises and conjectures and placing to burden of proof on the defendant are not correct; f) there is no dispute about the plaintiffs' ownership of suit property. The Courts below have given a categorical finding that unless the defendant pays the balance sale consideration and gets the sale deed executed in his favour, he will not acquire title to the suit property; g) the plaintiffs are admittedly owners of the suit property. Therefore, there is no necessity to seek the relief for declaration. The Courts below have given a categorical finding that unless the defendant pays the balance sale consideration and gets the sale deed executed in his favour, he will not acquire title to the suit property; g) the plaintiffs are admittedly owners of the suit property. Therefore, there is no necessity to seek the relief for declaration. The suit for permanent injunction is maintainable; and h) the first appellate Court has framed correct points for consideration and has given findings for each and every issue and complied with the requirements under Order 41 Rule 31 of C.P.C. 17. I have carefully perused all the materials on record and considered the arguments of the learned counsel for the appellants and the respondents. 18. There is no dispute that the plaintiffs are the owners of the suit property. There is also no dispute that the original owner Meenakshi Sundaram agreed to sell the property to the defendant. He and his sons executed agreement of sale. The dispute is with regard to sale consideration. According to the plaintiffs, the sale consideration is Rs.1,50,000/-and the defendant paid Rs.40,000/- as advance and failed to pay the balance sale consideration. The first plaintiff examined as PW1 has spoken about these facts. The defendant relied on Ex.B1, the agreement of sale. Both the Courts below examined Ex.B1 and found out that the same had been tampered with. The original sale consideration of Rs.1,50,000/- was erased and Rs.40,000/-was subsequently typed. Further, the Courts below found out the difference in Ex.B1 and the signatures of Meenakshi Sundaram as well as the first plaintiff. The Courts below have thoroughly examined Ex.B1 and concluded that it cannot be relied and have given valid reasons for rejecting the same. 19. I have also examined Ex.B1. It is clearly seen that the sale consideration of Rs.40,000/-had been subsequently typed. There is difference in typing the figure 'Rs.40,000/-' and the word 'Rupees Forty Thousand'. Therefore, I hold that there is no infirmity in the findings of the Courts below warranting interference by this Court. Further, these findings are on facts and no substantial question of law is involved. 20. The defendant has admitted the title of the plaintiffs. Therefore, there is no necessity for the plaintiffs to seek declaration of title. The defendant alleges that as he is in possession, he is entitled to carry out repairs. Further, these findings are on facts and no substantial question of law is involved. 20. The defendant has admitted the title of the plaintiffs. Therefore, there is no necessity for the plaintiffs to seek declaration of title. The defendant alleges that as he is in possession, he is entitled to carry out repairs. Already, the defendant alleged to have carry out the repairs to the tune of Rs.1,50,000/-, which was disbelieved by the Courts below. The defendant has not acquired title to the suit property. Therefore, he is not entitled to create any charge over the suit property or alter the physical features of the suit property. The plaintiffs are entitled to permanent injunction as prayed for. 21. The learned counsel for the appellants vehemently argued that the first appellate Court failed to comply with Order 41 Rule 31 of C.P.C. by not framing proper points for consideration and not giving findings for each and every issue in question. This contention is untenable and unsustainable. It is relevant here to extract Order 41 Rule 31 of C.P.C:- "31.Contents, date and signature of judgment:- The judgment of the Appellate Court shall be in writing and shall state- a) the points for determination; b) the decision thereon; c) the reasons for the decision; and d) where the decree appealed form is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein." 22. From the reading of the Judgment and Decree of the first appellate Court, it is seen that the first appellate Court framed proper points for consideration and had decided all the issues in proper perspective. 23. In the result, both the substantial questions of law are answered against the appellants. 24. For the reasons stated above, this second appeal is dismissed, confirming the Judgment and Decree passed by the Courts below. No costs. Consequently, connected miscellaneous petition is also dismissed.