Madras High Court
V.Gopal vs R.Vasudevan on 15 December, 2021
S.A.No.1015 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 15.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.1015 of 2021
and
C.M.P.Nos.19084 & 19086 of 2021
V.Gopal,
S/o.M.Veerabadhran,
aged 43 years,
613, Nainappati Road Street,
Salem Main Road,Vellandivalasu Post,
Edappadi Town & Taluk,
Salem District. ... Appellant
.Vs.
R.Vasudevan,
S/o.Late V.Ramanathan Chettiar,
aged 68 years,
23, Bazaar Street,
Edappadi Town & Taluk,
Salem District. ... Respondent
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code against the Decree and Judgment of the learned Third Additional
District Judge, Salem passed in A.S.No.8 of 2009 dated 17.07.2018
reversing the Decree and Judgment of the learned Subordinate Judge,
Sankari passed in O.S.No.24 of 2007 dated 30.09.2008 and to set aside
the same.
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S.A.No.1015 of 2021
For Appellants : Mr.P.Haribabu
For Respondents : Mr.P.K.Harinath
JUDGMENT
The Second Appeal is directed against the Judgment and Decree of
the learned III Additional District Judge, Salem in A.S.No.8 of 2009
dated 17.07.2018, reversing the Decree and Judgment of the learned
Subordinate Judge, Sankari in O.S.No.24 of 2007 dated 30.09.2008.
2.The Appellant filed the Suit for Specific performance of
contract, on the basis of sale agreement dated 30.12.2006 and for the
relief of permanent injunction, not to interfere with the Appellant's
peaceful possession and enjoyment of the suit property and not to
alienate or encumbrance the suit property.
3.The case of the Appellant is that suit property was originally
allotted to Respondent's father in a registered partition on 04.07.1949.
After the death of Father, Respondent and his brothers orally partitioned
the property among themselves alongwith Mother and it was reduced in
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S.A.No.1015 of 2021
writing on 09.02.1993. After that, there was misunderstanding between
the Respondent and his brothers and Mother, resulting in filing of
O.S.No.166 of 2002. That Suit ended in favour of the Respondent and
his title to the suit property was declared. The suit property was enjoyed
by Appellant's father, as a tenant from the year 1980. Appellant was also
occupying the suit property as a tenant along with his father. Appellant's
father changed thatched roof into tiled roof with his own money.
Respondent intended to sell the suit property and approached the
Appellant.
4.On 30.12.2006, Appellant and Respondent entered into a sale
agreement. The sale consideration for the suit property was fixed at
Rs.2,00,000/-. A sum of Rs.1,00,000/- was paid as advance. It was
agreed that Appellant will continue in possession and enjoyment of the
suit property, as an agreement holder. The sale was decided to be
completed within 30 days of Panguni month Viya Tamil Year
corresponding to 13.04.2007. Appellant was always willing and ready to
perform his part of contract. Respondent has not shown any interest and
therefore, Appellant approached the Respondent on 09.04.2007 for
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S.A.No.1015 of 2021
execution of sale deed. Respondent with the help of unruly people
refused to execute the sale deed and demanded the Appellant to vacate
the building. Respondent has no right to do so. Again Appellant
approached the Respondent on 12.04.2007, for execution of sale deed,
but the Respondent tried to evict the Appellant with the help of rowdy
elements. In these circumstances, the suit is filed for the reliefs
aforesaid.
5.Respondent filed written statement denying the averments made
in the Plaint. It is admitted that the Appellant is in possession of the suit
property as tenant. It is denied that Appellant did improvement in the
suit property. The allegation that Respondent intended to sell the suit
property and he executed a sale agreement with the Appellant on
30.12.2006, the averment that sale consideration was fixed at
Rs.2,00,000/- and a sum of Rs.1,00,000/- was received as advance by the
Respondent are all denied. The date viz., 13.04.2007 fixed for
completing the sale is also denied. It is the specific case of the
Respondent that he had never executed sale agreement dated 30.12.2016
and it is a forged sale agreement, created with a view to cheat the
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S.A.No.1015 of 2021
Respondent. The signatures in the sale agreement are not the signatures
of the Respondent. Therefore, Appellant cannot seek any relief on the
basis of this forged, created sale agreement. The suit has been filed
without any pre-suit notice. The allegation that Respondent tried to evict
the Appellant using rowdy elements is denied. The value of the suit
property is much higher than what is mentioned in the sale agreement.
There is a Well in the suit property. The value of the Well is much
higher. The Appellant has not paid the rent from April 2004. On the
basis of the forged sale agreement, the Appellant cannot claim any right.
Therefore, suit is liable to be dismissed.
6.On the basis of this pleadings, the trial Court framed the
following issues:
(i)Whether the sale agreement dated 30.12.2006 is true and
valid sale agreement?
(ii)Whether the Plaintiff is entitled for the relief of specific
performance?
(iii)Whether the Plaintiff is entitled for the relief of permanent
injunction?
(iv)To what other relief, if any, the Plaintiff is entitled?
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S.A.No.1015 of 2021
7.During the trial before the trial Court, PW1 to 3 were examined,
Exs.A.1 to A.26 were marked on the side of the Appellant/Plaintiff.
DW1 and 2 were examined, Exs.B.1 to B.11 were marked on the side of
the Respondent/Defendant. That apart, Ex.X.1 to X.4 were marked.
8.Considering the oral and documentary evidence, the learned trial
Judge came to the conclusion primarily on comparing the disputed
signature in Ex.A16 sale agreement with admitted signatures of the
Respondent available in Exs.A.14, A.15 & A.24, found that the disputed
signature match with the admitted signature in Exs.A.14, A.15 & A.24.
In this view of the matter, the learned trial Judge found that the sale
agreement is a true agreement, the execution of the sale agreement was
proved by the Appellant and therefore, Appellant is entitled for the relief
of specific performance. Accordingly, the suit for specific performance
was decreed.
9.Aggrieved against the judgment of the learned trial Judge,
Respondent filed an Appeal in A.S.No. 8 of 2009. During the pendency
of the Appeal, disputed signature of the Respondent in the sale
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S.A.No.1015 of 2021
agreement and his admitted signatures were sent to the opinion of the
handwriting expert. The handwriting expert's report and connected
documents were marked as Exs.C.1 to C.10. Handwriting expert was
examined as CW1. On re-appreciation of oral and documentary
evidences and additional evidence of CW1 and Exs.C.1 to C.10
documents, the learned Appellate Judge found that there are some
serious discrepancies in the manner of execution of the disputed sale
agreement. He also recorded certain vital omissions and contradictions
in the evidence of PW1, with regard to the purchase of stamp papers and
the manner in which the sale agreement was prepared.
10.Considering these discrepancies and finding of the handwriting
expert that “the person who wrote the red enclosed signatures stamped
and marked A1, A2 & A3 to A28 (photocopies) did not write the red
enclosed signatures similarly stamped and marked Q1 to Q3”, the
learned Appellate Judge came to the conclusion that Ex.A16 is not a true
and genuine sale agreement and on the basis of Ex.A.16 sale agreement,
Appellant cannot claim the relief of specific performance. On these
reasoning, learned first Appellate Judge reversed the finding of the trial
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S.A.No.1015 of 2021
Judge and dismissed the Suit. Therefore, the Appellant is before this
Court by way of this Second Appeal, challenging the judgment of the
first Appellate Court.
11.Learned counsel for the Appellant submitted that the expert's
opinion is only an opinion. The first Appellant Court primarily non
suited the Appellant on the opinion given by the handwriting expert. On
the other hand, the learned trial Judge on going through the oral and
documentary evidences and comparing the admitted signature of the
Respondent with the disputed signature in the sale agreement, correctly
concluded that Respondent had alone signed in the sale agreement and
upheld the genuineness and validity of the sale agreement. That apart, it
is submitted that the discrepancies pointed in the judgment of the first
Appellate Court are only minor discrepancies, which came into existence
on the face of natural evidence. These discrepancies cannot be given
much importance for concluding that the sale agreement is not a true and
valid sale agreement. Appellant, before him, his father as tenant in
respect of suit property for several years, have made improvements in the
suit property and therefore, Respondent came forward to sell the suit
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S.A.No.1015 of 2021
property to Appellant.
12.Learned counsel for the Appellant further submitted that,
Respondent was not willing and ready to perform his part of contract. It
is not necessary to send pre-suit notice, before instituting the suit. On
the other hand, Appellant had requested the Respondent on several dates
to come forward to execute the sale deed. It was the Respondent, who
was not ready to perform his part of contract. Appellant has examined
witnesses and produced documents to show his readiness and willingness
to execute the sale deed in pursuance of Ex.A.16 sale agreement and the
sale agreement was also prepared in the manner known to law. The trial
Court rightly decreed the suit, but the reversal of the trial Court's
judgment by the first Appellate Court is not based on proper appreciation
of evidence and it was on wrong appreciation of evidence and wrong
application of law. Therefore, learned counsel for the Appellant prayed
for setting aside the judgment of the first Appellate Court and for
restoring the judgment of the trial Court.
13.Considered the submissions of the learned counsel for the
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Appellant and the learned counsel for the Caveator/Respondent and
perused the records.
14.Certain facts are not disputed and admitted by the parties, they
are as follows:
(i)Suit property belonged to the Respondent at the time of
execution of alleged sale agreement.
(ii)The Appellant, before him, his father was a tenant in respect
of the suit property.
The execution of sale agreement is totally denied by the Respondent.
The alleged signature of the Respondent in the sale agreement, according
to the Respondent is not his signature. The sale agreement was prepared
by forging his signature, is the specific case of the Respondent. As
stated above, before the learned trial Judge, though the genuineness of
the sale agreement was disputed on the ground of forgery, it has taken
itself the responsibility of comparing the disputed signature in sale
agreement with the admitted signatures in Exs.A.14, A.15 & A.24. It
came to the conclusion that Respondent had signed in the sale agreement
and upheld the genuineness and the validity of the sale agreement and
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decreed the suit. It appears that none of the parties had taken steps to
subject the disputed sale agreement for the opinion of the handwriting
expert, when the matter was pending before the trial Court. It is not as if
the Courts cannot compare the signature but it requires knowledge in the
techniques of comparison of handwriting. When the
Respondent/Defendant had taken such plea that the signature is a forged
one, it is the primary duty of the Plaintiff to prove that signature is
genuine and not forged signature.
15.Admittedly, the Appellant/Plaintiff has not taken steps to send
the sale agreement with admitted signatures for comparison by the
handwriting expert. Respondent filed application for seeking the
comparison of disputed signature in sale agreement with other admitted
signatures by the expert. That petition was allowed. The disputed
signature in the sale agreement with admitted signatures were sent for
comparison by handwriting expert's opinion. Handwriting expert after
scientific analysis filed his report in Ex.C1 and connected records in
Ex.C.2 to Ex.C10. He opined that “the person who wrote the red
enclosed signatures stamped and marked A1, A2 & A3 to A28
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S.A.No.1015 of 2021
(photocopies) did not write the red enclosed signatures similarly
stamped and marked Q1 to Q3”. The handwriting expert was also
examined as CW1. In the course of his evidence, he narrated the
procedures followed by him for comparing the disputed signature with
admitted signature and his reason for coming to the aforesaid opinion.
Thus, on the basis of this scientific evidence, learned first Appellate
Judge came to the conclusion that Ex.A.16 sale agreement is not a true
sale agreement and the signatures in the disputed sale agreement are not
at all respondent's signatures.
16This is not the only ground on which the suit for specific
performance was dismissed. The learned first Appellate Judge re-
appreciated the evidence available in this case, especially, evidence of
PW1 & 2, who have been examined to prove the execution of sale
agreement and also evidence of DW2 who was examined to show the
purchase of stamp papers for the execution of sale agreement. It is
claimed by PW1 that he purchased the stamp papers for execution of
Ex.A16 sale deed. However, it was found from the evidence of PW3, the
District Sub Registrar that stamp papers used for preparing Ex.A16 sale
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agreement were not sold to Appellant. Thus, it seriously dented the case
of the Appellant and the evidence of Appellant. Not only that there are
other circumstances to doubt the evidence of PW1 and PW2. It is seen
from the evidence of PW1 that he purchased stamp papers and handed
over it to the Appellant on the same day. He visited the Respondent's
house and found that the sale agreement was made ready. It was typed in
computer and no one has signed on it, at that point of time. There is
nothing on record to show that who gave details for preparation of the
sale agreement. It is seen from PW1's evidence that he has not read the
contents of the sale agreement and he was not aware of the place, where
it was typed in the computer and who typed it. This evidence of PW1 to
3 cause serious doubt as to whether sale agreement was executed in the
presence of the Respondent. The evidence of PW1 & 2 is not sufficient
to establish, prove the execution of sale agreement. Curiously, the
Appellant has not chosen to examine other attestor.
17.The combined reading of oral and documentary evidence shows
that Appellant has miserably failed to satisfactorily prove the execution
of sale agreement by the Respondent. Therefore, learned first Appellate
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Judge reversed the finding of the trial Court and dismissed the suit. This
Court on going through the judgment of the Courts below, evidence,
submission of the learned counsel for the parties, finds that there is no
reason to interfere with the judgment of the Courts below. There is no
substantial question(s) of law involved in this Second Appeal.
18.In this view of the matter, judgment of the learned first
Appellate Court in A.S.No.8 of 2009 dated 17.07.2018, reversing the
Decree and Judgment of the learned Subordinate Judge, Sankari passed
in O.S.No.24 of 2007 dated 30.09.2008 is confirmed. Accordingly,
Second Appeal is dismissed, with the costs to the Respondent.
Consequently, connected Miscellaneous Petitions are closed.
15.12.2021
Speaking Order/Non Speaking Order
Index : Yes
Internet : Yes
sai
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S.A.No.1015 of 2021
G.CHANDRASEKHARAN, J.
sai
To
The learned III Additional District Judge,
Salem.
S.A.No.1015 of 2021
Dated: 15.12.2021
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