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2021 DIGILAW 420 (MAD)

S. K. Kandasamy v. Subarayagounder (died)

2021-02-08

G.JAYACHANDRAN

body2021
JUDGMENT : (Prayer: Appeal Suit has been filed under Order 41, Rule 1 and Section 96 of C.P.C., against the judgment and decree made dated 15.07.2003 made in O.S.No.83 of 1999 on the file of the Principal Sub Court, Gobichettipalayam. Appeal Suit has been filed under Order 41, Rule 1 and Section 96 of the Civil Procedure Code against the decree and judgment of the Principal Subordinate Judge of Gobichettiplayam dated 15th day of July 2003 in O.S.No.23 of 2000.) 1. Assailing the common judgment dismissing the suits filed for permanent injunction and specific performance, the instant appeals are filed by the aggrieved plaintiff. 2. The appellant herein initially filed O.S.No.443/1996 on the file of the District Munsif Court at Satyamangalam on 22/08/1996 stating that he entered into a bilateral sale agreement dated 26/10/1995 with on Subbaraya gounder in respect of the suit schedule property to an extent of 7 acres for consideration of Rs.80,000/- per acre. On payment of Rs.5,50,000/- by cash towards the sale price, Subbaraya gounder delivered the possession of the suit property to him as part performance of the contract; and agreed to execute sale deed and register the same at the expenses of and the date fixed by the buyer on receipt of balance sale consideration of Rs.10,000/-. Since then he is in possession of the suit property and enjoying it peacefully. The appellant requested the vendor Subbaraya gounder to receive the balance sale consideration and execute the sale deed on several occasions. Since he failed to perform his part of contract, lawyer notice dated 14/08/1996 was issued calling upon the vendor to perform his part of contract. Instead of executing the sale deed and register the same receiving the balance sale consideration of Rs.10,000/-, the vendor and his men tried to disturb the peaceful possession and enjoyment of the appellant on 19/08/1996 with the motive of defeating and defrauding the appellants legitimate rights under the sale agreement dated 26/10/1995. Hence, relief of permanent injunction against the vendor Subbaraya gounder his men and agent restraining them from interfering in any manner the peaceful possession sought reserving the right to file separate suit for specific performance of the contract. 3. Subsequently, the appellant on 28/10/1998 filed O.S.No.83/1999 on the file of Principal Sub-Court at Gopichettipalayam. Hence, relief of permanent injunction against the vendor Subbaraya gounder his men and agent restraining them from interfering in any manner the peaceful possession sought reserving the right to file separate suit for specific performance of the contract. 3. Subsequently, the appellant on 28/10/1998 filed O.S.No.83/1999 on the file of Principal Sub-Court at Gopichettipalayam. The suit for specific performance to execute the sale deed, as per the agreement dated 26/10/1995 or to repay the money ( Rs.5,50,000/-) paid towards sale consideration with 18% interest. 4. By an order dated 06/01/2000, in Tr.O.P.No.112/1999, the suit for permanent injunction O.S.No.443/1996 pending on the file of District Munsif, Sathiyamangalam was transferred to the Principal Sub Court at Gopichettipalayam re-numbered as O.S.No.23/2000 and taken up for joint trial. 5. The Principal Sub Judge dismissed both the suits vide, common judgment dated 15/07/2003. The aggrieved plaintiff, preferred appeal in A.S.No.676/2004 against the dismissal of specific performance suit O.S.No.83/1999, before the High Court having appellate jurisdiction over the subject matter and pecuniary limit. Also, preferred appeal before the District Court, Erode against the dismissal of the injunction suit and numbered as A.S.No.116/2006 based on the suit valuation. Later, the said appeal was transferred to High Court to be heard along with A.S.No.676/2004. The transferred appeal got renumbered as A.S.No.251/2006. 6. Pending appeal, the defendant in the suits, Subbaraya gounder died. His legal representatives were brought on record as respondents 2 and 3. Later the second respondent also died. Based on the Memo filed by the appellant’s counsel, the third respondent was recorded as the legal heir of the deceased second respondent. 7. Ground of Appeal: The Courts below over looking the document and other evidence erred in holding that on the basis of Ex.A1 dated 26.10.1995, the plaintiff is not entitled to decree for specific performance. As per the dictum laid by the Hon’ble Supreme Court in 2003 (3) LW 211 holding that the person, who is in possession of the property obtained in pursuance to part performance of the agreement to sell is entitled for protection of his possession even though the period of limitation for filing the suit for specific performance expired. The Court below failed to consider that Ex.B1 to Ex.B27, which are the documents subsequent to the suit and after interim injunction granted in favour of the appellant/plaintiff. The Court below failed to consider that Ex.B1 to Ex.B27, which are the documents subsequent to the suit and after interim injunction granted in favour of the appellant/plaintiff. The Court below had completely lost sight of Ex.C1 and Ex.C2, which establishes the possession with the appellant/plaintiff. The Court below omitted to consider the fact that the vendor had handed over the title documents of the suit property Exs.A4 and A5 to the prospective buyer on receipt of substantial sale consideration, pursuant to the agreement. Adverse inference ought to have drawn by the Court below against the defendant. The defendant has not stated anything about handing over Ex.A5 and Ex.A6 to the plaintiff at the time of agreement. The Court below ought to have rejected the defence of forgery alleged regarding Ex.A1. The defendant had admitted thumb impression found in Ex.A1. Therefore, there is no need for any other proof regarding the genuiness of Ex.A1. 8. Regarding the genuiness of the sale agreement, the learned counsel submitted that the signature found in Ex.A1 has not been discredited by the defendant. Therefore, mere difference in number of signatures put in every page of Ex.A1 (or) absence of thumb impression in the first page cannot invalid Ex.A1. More so, when PW-2 had categorically explained, why the defendant has put two sigantures in the first page of Ex.A1 and affixed his thumb impression with one signature in subsequent pages. The difference in ink found amoung the signatures in Ex.A1 is properly explained by the witnesses. The Trial Court, therefore, ought to have accepted the explanation and held that Ex.A1 is the genuine document. If the Court below had compared the disputed signature with the admitted signature found in their vakalat, by exercising the power confered on the Court, it could have arrived at a right decision. 9. Having failed to compare the signatures, the evidence of PW-3 has been wrongly understood by the trial Court and has held that there is a discrepancy regarding the stamp paper upon which Ex.A1 is written. A document cannot be invalidated, merely because a person, who know to sign his name, had executed the document by putting his thumb impression along with the signature. To prove the ready and willingness to perform the contract, the purchaser need not necessarily produced the money. It is enough if the purchaser could command the credit in the market. A document cannot be invalidated, merely because a person, who know to sign his name, had executed the document by putting his thumb impression along with the signature. To prove the ready and willingness to perform the contract, the purchaser need not necessarily produced the money. It is enough if the purchaser could command the credit in the market. As far as the appellant is concerned, he had already paid Rs.5,50,000/- and only Rs.10,000/- is due for completion of contract. The Court below had not gone into the fact, whether the plaintiff is ready and willing to perform the contract. The limitation for filing specific performance suit is from the date of notice, when the defendant deliberately evaded to execute the sale deed and get it registered. 10. The learned counsel appearing for the appellant further submitted that the plaintiff to prove his case, he has examined three witnesses and marked four exhibits. The genuiness of Ex.A1 has been proved through the scribe and attestor of the document. The document stood unimpeached. However, the Court below disbelieved the execution of Ex.A1, merely because the vendor has affixed two signatures in the first page of the document and in rest of the pages he has affixed his thumb impression and one signature. Further, though the possession of the suit property have been handed over to the prospective buyer as part performance, till the change of title, the revenue records will only remain in the name of the original owner. Hence, Ex.B1 to B27, which are adangal extract and chitta extract stands in the name of the defendant. For this reason, the trial Court cannot hold possession not proved. therefore, the possession is not proved. The adangal extract and chitta are not the proof of possession. 11. Regarding the alleged discrepancies in the stamp paper highlighted through DW-3, the learned counsel appearing for the appellant submitted that the facts elucidated during the cross examination of DW3 are not at all taken note by the Trial Court. In the chief examination of DW3 he has stated that from the Registrar Office record stamp paper No.8609 for value Rs.50/- has been sold to one Poorpannan on 18.10.1995 and stamp paper with the same number also sold to S.K.Kandasamy (plaintiff) on 19.10.1995. It is not possible to sell the same stamp paper to two persons. In the chief examination of DW3 he has stated that from the Registrar Office record stamp paper No.8609 for value Rs.50/- has been sold to one Poorpannan on 18.10.1995 and stamp paper with the same number also sold to S.K.Kandasamy (plaintiff) on 19.10.1995. It is not possible to sell the same stamp paper to two persons. However, in the cross examination, this witness has admitted that such error used to occur and such error occur due to the fault of the stamp vendor and not because of the purchaser. Pointing out this portion of DW-3 deposition, the learned counsel appearing for the appellant submtited that use of different ink in Ex.A1 and absence of thumb impression in the first page, the trial Court has erroneously suspected Ex.A1. Whereas, the explanation of PW-1 how and why there are two signatures found in the first page of the sale agreement and only one signature and one thumb impression found in other rest of the pages not at all considered. Even after, this explanation is corrobated by the scribe PW-2 and the witness PW-3, the trial Court has disbelieved. The direct evidence of PW-2 and PW-3 regarding the execution of Ex.A1, without any valid reason. 12. The learned counsel for the respondents in response to the above submission submitted that the plaintiff’s mother and wife of the defendant are sisters. The suit property was purchased by the defandant from his own earning and he is in possession and enjoyment of the property. The defendant never entered into the agreement with the plaintiff as alleged. The genuiness of Ex.A1 has been specifically denied in the written statement. While the burden of proving the execution of Ex.A1 is on the plaintiff, he has not taken any steps to get the expert opinion regarding the genuiness of the signature or thumb impression found in Ex.A1. The very apperance of Ex.A1 expose to suspicion regarding its genuiness. Before the trial Court, the plaintiff has failed to satisfactorily explained, how the stamp paper bearing same stamp number sold to two different persons, why there is difference in ink and difference in the impression of LTI. Why the first page of Ex.A1 has two signatures of the defendant and rest of pages one thumb impression and one signature. The thumb impression found in Ex.A1 was not identified as LTI of so and so. 13. Why the first page of Ex.A1 has two signatures of the defendant and rest of pages one thumb impression and one signature. The thumb impression found in Ex.A1 was not identified as LTI of so and so. 13. Regarding the possession, the learned counsel appearing for the respondents submitted that the trial Court has rightly held that the defendant alone was in possession of the suit property, since the adangal which reflects the person who is cultivating the land does not indicate the name of the plaintiff. Besides, the chitta and kist receipt are also only in the name of the respondents and not in the name of the appellant. The exhibits relied by the defendant, which are marked as Exs.B1 to B30 are between the period from 1996 to 2002. The photocopy of the title deed of the property marked as Ex.B4 and B5 is not proof for agreement Ex.A1. Therefore, learned counsel submitted that there is no merit in these appeals and they have to be dismissed. 14. On considering the rival submissions, this Court formulates the following point for determination:- 1. Whether the execution of Ex.A1 proved by the plaintiff through prepounderance of probablities? 2. Whether the possession of the suit property proved by the appellant through adequate evidence? 15. Before considering the merits, the sequance of event is necessarily to be taken note in this case. Hence, the same is said in brief:- On 26.10.1995 Subarayagounder the defendant and Kandasamy the plaintiff entered into an agreement Ex.A1 wherein they agreed for the sale of seven acres land at the rate of Rs.80,000/- per acre. Subbaraya gounder had received Rs.5.5lakhs. On the same it is agreed by the party that Subbaraya gounder shall execute the sale deed receiving the balance Rs.10,000/- the plaintiff (Kandasamy) demands for execution. Under Ex.A2 dated 14.08.1996 the plaintiff through his lawyer Mr.K.R.Annamalai has caused notice to Subbaraya gounder to take notice that he is ready and willing to purchase the property as per the contract and calling upon him to fix the date and place for execution and registration of sale deed, within 15 days from the date of receipt of the notice, failing which, he will proceed in accordance with law in the Court. It is contended by the plaintiff that the defendant refused to receive this notice. 16. It is contended by the plaintiff that the defendant refused to receive this notice. 16. Thereafter, the plaintiff has filed the suit for injunction on 22.08.1996 reserving his right to file a separate suit for specific performance. Along with the suit for injunction, an application to appoint Advocate Commissioner and to note the physical feature was filed and the Court has passed an exparte order. Accordingly, the Advocate Commissioner has visited the suit land and has filed his report along with the sketch. They were marked as Exs.C1 and C2. The suit, which was original filed O.S.No.443 of 1996 before the District Munsif Court, Sathyamangalam was allowed exparte on 25.11.1996. The defendant came to know about the suit and exparte decree only on 30.12.1996 and therefore, filed an application to set aside the exparte decree. 17. The Trial Court, after being satisfied with the reasons stated in the affidavit that no proper notice and no proper summon was served on him allowed the application to set aside the exparte decree. Thereafter, the said suit was transferred to Sub Court Erode and re-numbered. From the facts, it is clear that the Commissioner Report and the sketch came in the absence of proper notice to the defendant. So, it cannot be taken into consideration. The Trial Court has rightly ignored the same. Though the cause of action for filing the suit for specific performance arose, when admittedly, the defendant refused to execute the sale deed and the lawyer’s dated 14.08.1986 returned as “refused”. The appellant had reserved his right to file a separate suit for specific performance, while filing the suit for permanent injunction. However, the plaintiff filed the suit for specific performance not immediately. Only on 28.10.1998 for enforcement of the alleged sale deed dated 26.10.1995, the suit filed. 18. In this regard, it is pertinent to point out that in the cross examination of PW-1, it has been elucidated that the plaint presented on 23.03.1999 with deficit court fees. Hence, the plaint was returned stating that the Court fee is insufficient, the plaintiff presented without proper petition praying time to pay the required Court fee. 18. In this regard, it is pertinent to point out that in the cross examination of PW-1, it has been elucidated that the plaint presented on 23.03.1999 with deficit court fees. Hence, the plaint was returned stating that the Court fee is insufficient, the plaintiff presented without proper petition praying time to pay the required Court fee. From the records, this Court finds that the plaintiff has purchased the stamp papers for the required Court fee in the following denomination only on 03.03.1999:- Rs.5000 x 3 15,000-00 Rs.1000 x 26 26,000-00 Rs.300 x 3 900-00 Total 41,900-00 and the balance Rs.96/- paid through adhesive stamp affixed on Rs.300/- Court fee stamp papers. The payment of Court fees belatedly also admitted by the plaintiff in the cross examination. 19. The conduct of the plaintiff not filing suit for specific performance within reasonable time though the agreement had not fixed any particular date for completion of contract, the suit filed on the last date on expiry of 3 years period without affixing the required Court fees disprove his readiness. After causing notice for specific performance on 14.08.1996, the plaintiff has waited for nearly two years more and when he filed the plaint, he has not filed required court fee. The deficit court fee of Rs.42,000/- was paid after 5 months of expiry of the period of limitation. This indicates that he was not having required wherewithel and ready to complete the contract. Therefore, the contention of the learned counsel appearing for the appellant that the trial Court had not gone into the aspect of the ready and willingness of the plaintiff is incorrect. 20. As narrated above, even assuming that the agreement Ex.A1 is true and genuine for seeking specific performance, the plaintiff ought to have proved his ready and willingness in the manner known to law. Since the plaintiff has failed to do so, the Trial Court judgment and decree dismissing the specific performance suit is consonance to law. 21. As far as the relief of injunction sought in O.S.No.23 of 2000, which is the subject matter of transfer A.S.No.251 of 2006, the plaintiff claims possession of the suit property based on Ex.A1. It is the case of the plaintiff that pursuant to the part performance, the property was handed over to him and he is in continuous possession and enjoyment. Regarding his possession, there is no oral or documentary evidence. It is the case of the plaintiff that pursuant to the part performance, the property was handed over to him and he is in continuous possession and enjoyment. Regarding his possession, there is no oral or documentary evidence. The only explanation given by the learned counsel appearing for the appellant is that, since the title stands in the name of the defendant, the revenue records Exs.B1 to B27 are in the name of the defendant. If the plaintiff is really cultivating the property, the adangal will reflect the name of the cultivator. Atleast, he could have produced kist receipts and other documents to show that he is cultivating the said land. The occular evidence from the persons in the locality could have assisted the Court to ascertain the possession. The plaintiff has not taken any measures to prove his case. Therefore, the plaintiff, who has failed to prove the possession, pursuant to the part performance, is bound to fail. The trial Court has rightly dismissed the injunction suit. 22. To add the reasons given by the trial Court, for disbelieving Ex.A1 sale agreement and handing over of possession, this Court like to refer the judgment of the Hon’ble Supreme Court rendered in Shivaji Yallappa Patil v. Ranajeet Appasaheb Patil and others reported in (2018) 16 SCC 725 , wherein the following principle has been postulated as sine qua non for basing a claim on Section 53-A of the Transfer of Property Act, 1882: “(i) There must be a contract to transfer for consideration any immovable property. (ii) The contract must be in writing signed by the transferor, or by someone on his behalf. (iii) The writing must be in such words from which the terms necessary to construe the transfer can be ascertained. (iv) The transferee must in part-performance of the contract take possession of the property, or of any part thereof. (v) The transferee must have done some act in furtherance of the contract. (vi) The transferee must have performed or be willing to perform his part of the contract. 17. It is well-settled law that Section 53-A of the TP Act confers no right on a party who was not willing to perform his part of the contract. A transferee has to prove that he was honestly ready and willing to perform his part under the contract.” 23. 17. It is well-settled law that Section 53-A of the TP Act confers no right on a party who was not willing to perform his part of the contract. A transferee has to prove that he was honestly ready and willing to perform his part under the contract.” 23. In an identical facts of the case, the Division Bench of this Court judgment in N.Ravindran v. V.Ramachandran reported in 2011(3) CTC 153 , had an occassion to consider the order passed by the Single Judge rejecting the plaint under Order VII, Rule 1 of the Civil Procedure Code, on the ground that the suit for specific performance is barred by limitation. The Division Bench held has below:- “27. The plaint in O.S.No.6514 of 2002 was produced before us. By perusal of the averments in both the Suits-C.S.No.264 of 2007 and O.S.No.6514 of 2002, we find that the averments in both the plaints are verbatim same excepting few sentences in some paragraphs. As pointed out earlier, there was unequivocal threat to the plaintiff’s right of agreement/ understanding even in November 2002 when the plaintiff has also lodged a police complaint. While so, while filing the suit - O.S.No.6514 of 2002, the plaintiff has omitted to sue in respect of the suit for specific performance. Order 2, Rule 2 is directed in securing the exhaustion of relief in respect of cause of action. When the plaintiff has intentionally omitted to claim the relief of Specific Performance, he will not be subsequently entitled to sue in respect of the portion of his claim-right of Specific Performance, which he so omitted.” 24. In the instant case, the plaintiff though had reserved right to file the subsequent suit for specific performance, based on the same cause of action, he has preferred the suit for specific performance, after two years of the refusal and alleged threat. Further more, the suit was filed on the last date of expiry of limitation only with 5 rupees Court fee as against payment of Rs.42,000-50. This also disproves his ready and willingness. 25. For all the above said reasons, the points for consideration are answered against the appellant herein. Hence, both the Appeal Suits are dismissed. The common judgment and decree passed by the Court below is hereby confirmed. No order as to costs.