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2019 DIGILAW 1336 (MAD)

Sarasu v. Muthukaruppan

2019-04-27

R.PONGIAPPAN

body2019
JUDGMENT : R. Pongiappan, J. 1. This Second Appeal is directed against the Judgment and Decree made in A.S. No. 50 of 2007, dated 24.07.2008, on the file of the learned Subordinate Judge, Pudukkottai, reversing the Judgment and Decree, dated 18.07.2006, made in O.S. No. 127 of 2002, on the file of the learned District Munsif, Aranthangi. 2. The plaintiff/respondent herein filed a suit against the defendants/appellants in O.S. No. 127 of 2002, on the file of the learned District Munsif, Aranthangi, for the relief of specific performance. By the Judgment and Decree, dated 18.07.2006, the learned District Munsif, Aranthangi, had dismissed the suit. Aggrieved over the findings arrived at by the learned District Munsif, Aranthangi, the plaintiff/respondent filed an appeal before the learned Subordinate Judge, Pudukkottai in A.S. No. 50 of 2007. 3. After elaborate enquiry, the learned Subordinate Judge, Pudukkottai, by Judgment and Decree, dated 24.07.2008 allowed the appeal and directed the defendants/appellants to execute a sale deed with respect to the suit schedule property. Feeling aggrieved by the same, the defendants/appellants preferred the present Second Appeal for the relief to set aside the Judgment and Decree rendered by the learned Subordinate Judge, Pudukkottai. 4. For the sake of convenience, the parties are referred to as, as described, before the trial Court. 5. The averments made in the plaint, in brief, are as follows: (i) The suit schedule property is the property of one Mahalingam, who is the husband of the 1st defendant and father of the defendants 2 to 6. On 28.09.1987, the plaintiff entered into a sale agreement with the said Mahalingam, for the purchase of suit schedule property. The sale price was fixed as Rs. 2,600/- and the same was paid to the said Mahalingam on the day, when the sale agreement was executed. In the sale agreement, time for performing the contract was fixed as 15 years. On the date of sale agreement itself, the possession was handed over to the plaintiff. During the time of hand over the possession, the said Mahalingam handed over the sale deeds, dated 23.06.1976 and 18.06.1968, which stand in the name of the predecessor of the said Mahalingam. Further, he handed over the copy of the patta pertaining to the suit property. (ii) After entering into the agreement, the said Mahalingam passed away. During the time of hand over the possession, the said Mahalingam handed over the sale deeds, dated 23.06.1976 and 18.06.1968, which stand in the name of the predecessor of the said Mahalingam. Further, he handed over the copy of the patta pertaining to the suit property. (ii) After entering into the agreement, the said Mahalingam passed away. From the date on which the plaintiff was put in possession of the suit property, he removed the boundary, which was situated in between the land belongs to him and to the property of the said Mahalingam and enjoyed the same. The first defendant is having the knowledge about the execution of the sale agreement. After the demise of the said Mahalingam, the plaintiff demanded the defendants for execution of the sale deed and the same was evaded by the defendants. The defendants are bound to execute the sale deed in favour of the plaintiff. On 01.10.2002, the plaintiff sent an advocate notice demanding the defendants to perform the contract, as agreed by the deceased Mahalingam. The said notice was suitably replied by the defendants by way of sending advocate notice, dated 08.10.2002. Even after receiving the advocate notice, the defendants refused to execute the sale deed. Hence the suit. 6. The averments made in the written statement filed by the first defendant and adopted by the defendant Nos. 2 to 6, in brief, are as follows: The alleged execution of the sale agreement, dated 28.09.1987, is nothing but a rank forgery. It is not necessary for the deceased Mahalingam to fix 15 years, as time limit for performing the contract. Even after request by the defendants in respect to furnish a copy of the sale agreement, the same was not complied by the plaintiff. The signature found in the sale agreement not belongs to the deceased Mahalingam. The sale agreement has been prepared after the demise of the said Mahalingam. There was a material alteration found in the sale agreement. The plaintiff never in possession of the suit schedule property and till now, the suit schedule property is in possession and enjoyment of the defendants. In fact, when at the time, the first defendant arranged the marriage to the fifth defendant, due to scarcity of funds, the first defendant told to the plaintiff for selling the suit schedule property. The plaintiff never in possession of the suit schedule property and till now, the suit schedule property is in possession and enjoyment of the defendants. In fact, when at the time, the first defendant arranged the marriage to the fifth defendant, due to scarcity of funds, the first defendant told to the plaintiff for selling the suit schedule property. Thereafter, she handed over the title deed to the plaintiff for the purpose of selling the suit property. According to the defendants, the suit is liable for dismissal. 7. Based on the above pleadings, the learned District Munsif, Aranthangi, had framed necessary issues and tried the suit. 8. Before the trial Court, during the trial, the plaintiff examined himself as PW. 1. He has examined 3 more witnesses as PW. 2 to PW. 4 and 6 documents were marked as Exs. A1 to A6. On the side of the defendants, the first defendant, Sarasu examined herself as DW 1 and she examined one Ramasamy as DW. 2. Further, on the side of the defendants, 11 documents were marked as Exs. B1 to B11. 9. The learned District Munsif, Aranthangi, having considered all the materials placed before him and came to the conclusion that the plaintiff has not proved the case and observed that the suit sale agreement was not proved beyond reasonable doubt and further, holding that possession of the plaintiff is not proved and thereby, dismissed the suit. 10. In the appeal filed by the plaintiff, the learned Subordinate Judge, Pudukkottai, has observed that the plaintiff has proved his case and decreed the suit as prayed for. Feeling aggrieved over the same, the defendants filed this second appeal. 11. This Court, while at the time of admitting this Second Appeal, has formulated the following Substantial Questions of Law, for consideration:- "1. Whether the suit filed after 15 years from the date of death of execution is barred by limitation? 2. Whether document can be marked without oral evidence? 3. Whether mere production of document amount to prove within the meaning of Section 67 of the Indian Evidence Act, 1872? 4. Whether a plaintiff is entitled to get a decree of specific performance on the basis of sale agreement, when forgery is pleaded by the defendant, without sending the impugned document to hand writing expert?" Substantial Question of Law No. 1:- 12. 4. Whether a plaintiff is entitled to get a decree of specific performance on the basis of sale agreement, when forgery is pleaded by the defendant, without sending the impugned document to hand writing expert?" Substantial Question of Law No. 1:- 12. It is the admitted case of the plaintiff and the defendants that the plaintiff had entered into a contract with one Mahalingam and executed a sale agreement on 28.09.1987. In the said sale agreement, the sale price was fixed as Rs. 2600/- and the same was paid to the said Mahalingam on that date itself. Further, it is one of the condition that both of them performed a contract within a period of 15 years from the date of agreement. 13. After the execution of sale agreement on 28.09.1987, the plaintiff has filed the suit only on 01.11.2002. So, it appears that the suit has been filed by the plaintiff after the period of 15 years one month. Now, on go through Article 54 of the Limitation Act, 1963, the period of limitation was fixed as three years. Further, with respect to calculating the time, it was stated, the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. As already pointed out, in the sale agreement which was marked as Ex. A1, the time was fixed as 15 years. So, it is very clear that within a period of three years, (i.e.,) after the completion of 15 years, the plaintiff filed the suit. Thereby, we cannot hold that the suit is barred by limitation. Thus, the Substantial Question of law No. 1 is answered in favour of the plaintiff. Substantial Questions of Law Nos. 2 and 3: 14. Before the First Appellate Court, during the pendency of the appeal in A.S. No. 50 of 2007, the plaintiff filed an interim application in I.A. No. 66 of 2008 for receiving additional documents. Usually, if an application is filed under Order 41 Rule 27 of CPC, it can be disposed along with the appeal. But here in this case, the First Appellate Court in its Judgment, dated 24.07.2008, without discussing any relevancy of the documents, which have been produced in the appeal stage, straight away allowed the appeal and marked the documents as Exs. A7 to A10. Ex. But here in this case, the First Appellate Court in its Judgment, dated 24.07.2008, without discussing any relevancy of the documents, which have been produced in the appeal stage, straight away allowed the appeal and marked the documents as Exs. A7 to A10. Ex. A7 is the certified copy of the sale deed, dated 14.12.2006, executed by the defendants, in favour of one Ramasamy, S/o. Manickam. Through the said document, the defendants sold out the suit schedule property, on 14.12.2006. Ex. A8 is the copy of the plaint in O.S. No. 109 of 1997 on the file of the learned District Munsif, Ramanathapuram. As per the said document, one Murugan filed a suit for partition against one Ramasamy and Muthayee in the year 1997. Ex. A.10 is a report filed by the Advocate Commissioner, who was appointed by the District Munsif, Aranthangi in O.S. No. 109 of 1997. In respect to those documents, the learned counsel appearing for the appellants/defendants contended that marking those documents without any oral evidence is inadmissible. Thereby accepting the possession of the plaintiff in the suit schedule property based on those documents is absolutely perverse and not having any legal sanctity. 15. It is true and also it is a settled position of law that any of the documents or any one of the evidence let in by any one, either by the plaintiff or by the defendants are subject to cross examination of other side. Only those documents, which were admitted by either side can be marked without any oral evidence. In general, mere marking of the documents as exhibits alone is not sufficient to hold that the said documents is having the legal sanctity. Proving of contents is very much necessary to accept the genuinity of the documents. 16. Accordingly, receiving the documents by the First Appellate Court without giving any opportunity to the other side and also without any oral evidence in respect to the said documents, we cannot come to the conclusion that the contents of the said documents will prove that the evidence given by the DW 2 is a false one. The First Appellate Court without following the basic principles, allowed the application filed by the plaintiff and accepted the documents. It is nothing but an error committed by the Court below. Accordingly, THE Substantial Questions of Law Nos. 2 and 3 are answered in favour of the appellants/defendants. The First Appellate Court without following the basic principles, allowed the application filed by the plaintiff and accepted the documents. It is nothing but an error committed by the Court below. Accordingly, THE Substantial Questions of Law Nos. 2 and 3 are answered in favour of the appellants/defendants. Substantial Question of Law No. 4: 17. The First Appellate Court, while at the time of deciding the appeal filed by the respondent, came to the conclusion that the possession of the suit schedule property was in the hands of the plaintiff. In fact, before the trial Court, the copy of the Adangal pertaining to the Pasalai 1405 to Pasali 1412 were marked as Exs. B1 to B8. Now on go through the contents of those documents will clearly establish that the name of the plaintiff did not found in any one of the documents. So, we cannot come to the conclusion that the plaintiff is in the possession of the suit schedule property. 18. Moreover, it is the contention of the respondent/plaintiff that since the appellants/defendants took a plea that the sale agreement is a forged one, they only have to prove the fact that the said Ex. Al-sale agreement is a forged one. But, the plaintiff did not prove the fact that Ex. A1 is a forged document. On the other hand, the learned counsel appearing for the defendants would contend that, filing of the suit by the plaintiff after 15 years will amount to prove that the sale agreement is forged one. 19. It is true, as per Section 103 of the Indian Evidence Act, the burden of proof as to any particular fact lies on that person, who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Accordingly, since the defendants take the plea of fraud, they only proved the said fact. In this regard, coming to the point whether the defendants proved the said plea in this case, the sale agreement alleged to be executed by Mahalingam is a unilateral agreement. In the said agreement, the plaintiff has not signed, only the deceased Mahalingam was signed as the executor. Further, the said document was unregistered one. 20. In the said circumstances, the period of performing the contract is fixed as 15 years. In the said agreement, the plaintiff has not signed, only the deceased Mahalingam was signed as the executor. Further, the said document was unregistered one. 20. In the said circumstances, the period of performing the contract is fixed as 15 years. The period fixed in the sale agreement is nothing but abnormal one. Further, it is the case of the plaintiff that the entire sale amount was paid at the time of execution of sale agreement itself. In the said circumstances, any common man, after paying the entire sale consideration cannot wait for 15 years for executing the sale deed. Accordingly, the story put forth by the plaintiff is unbelievable. Even though there is no question of readiness and willingness available in this case, it is necessary to look into other circumstances. 21. Moreover, when at the time of giving evidence as PW. 1, the plaintiff admitted in his cross examination that the deceased Mahalingam had purchased the suit property before seven years from the date of agreement. Further he has stated that at the time of purchasing the suit schedule property, he paid Rs. 2,500/- per acre. Further, he admitted that after the lapse of 11 years from the date of purchase, the sale agreement was executed by the deceased Mahalingam. Further, in the sale agreement, the rate per Acre was fixed as Rs. 2,600/-. In this regard, he has stated Rs. 100/- alone raised as a market value for the period of 11 years. The said evidence is nothing but utter false one. Since the remedy prayed by the plaintiff is an equitable remedy, he has to approach this Court with clean hands. 22. In this case, even though the plea of fraud is not proved on the side of the defendants, considering the fact that giving unacceptable evidence by the plaintiff and the quantum of period fixed for performing the contract are creating a doubt whether the plaintiff has approached this Court with clean hands. The First Appellate Court without seeing the said rudimentary principles allowed the appeal and decreed the suit and it is nothing but mockery of justice. Accordingly, the Substantial Questions of Law No. 4 is answered in favour of the appellants/defendants. 23. The First Appellate Court without seeing the said rudimentary principles allowed the appeal and decreed the suit and it is nothing but mockery of justice. Accordingly, the Substantial Questions of Law No. 4 is answered in favour of the appellants/defendants. 23. In the result, this Second Appeal stands allowed and the Judgement and Decree, dated 24.07.2008 passed in A.S. No. 50 of 2007, by the learned Subordinate Judge, Pudukkottai, reversing the Judgment and Decree passed by the learned District Munsif, Aranthangi, dated 18.07.2006, in O.S. No. 127 of 2002 is hereby set aside. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.