Madras High Court
M.Ameerjan (Deceased) vs H.M.Iabal Ahmed on 25 February, 2021
S.A.No.1587 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.02.2021
CORAM:
THE HON'BLE MR.JUSTICE T.RAVINDRAN
S.A.No.1587 of 2008
1. M.Ameerjan (Deceased)
S/o, Sheik Meeran,
82 Chinnusami Street,
Fort,
Salem.
2. Chanbetty,
W/o, late M.Amirjan
3. Bajan,
S/o, late M.Amirjan
4. Subeeidaa Sulthana,
D/o, late M.Amirjan
Appellants 2 to 4 are at
1A Mayam Pillaiyar Koil Street,
PCS Transport Building,
Salem Main Road,
Namakkal – 637 001.
[Appellants 2 to 4 brought on record
as Lrs of the deceased sole appellant
vide order of Court dated 16.07.2014
made in M.P.Nos.1 and 2 of 2014] ... Appellants
1/8
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S.A.No.1587 of 2008
Vs.
H.M.Iabal Ahmed,
S/o,M.A.Habib Sahib,
8 Anjal Nagar II Street,
Madurai. ... Respondent
Prayer:Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree dated 27.06.2002 made in A.S.No.157 of 2001 on the
file of the Principal District Court, Salem, confirming the judgment and
decree dated 31.10.2000 made in O.S.No.578 of 1996 on the file of the I
Additional District Munsif Court, Salem.
For Appellant : Ms.Zeenath Begum
For Respondent : No appearance
Set exparte
JUDGMENT
Challenge in this second appeal is made to the judgment and decree
dated 27.06.2002 passed in A.S.No.157 of 2001 on the file of the Principal
District Court, Salem, confirming the judgment and decree dated 31.10.2000
passed in O.S.No.578 of 1996 on the file of the I Additional District Munsif
Court, Salem.
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S.A.No.1587 of 2008
2. Today when the matter is taken up for hearing, there is no
representation for the respondent and accordingly the respondent being
called and remaining absent, set exparte.
3. Considering the pleas and the materials placed on record as well as
the submissions putforth by the appellants' counsel, it is found that the suit
has been laid by the plaintiff for the relief of permanent injunction based on
the agreement of sale dated 13.01.1994 marked as Ex.A8. According to the
plaintiff, Aliya Begum entered into a sale agreement marked as Ex.A8 and
she received a sum of Rs.80,000/- as advance and put the plaintiff in the
possession of the property agreed to be sold. The abovesaid agreement had
been seriously disputed by the defendant and as rightly concluded by the
Courts below, it is the bounden duty of the plaintiff to establish that Ex.A8
sale agreement is a true and valid one. As concluded by the Courts below,
no material worth acceptance has been placed by the plaintiff to evidence
that Ex.A8 sale agreement is an authenticated one. In addition, the plaintiff
has also not established that Aliya Begum had the entitlement to covey 1/3
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S.A.No.1587 of 2008
share, when it is noted that Aliya Begum is entitled to only 1/12 share of
the suit property amounting to an extent of 228 sq.ft alone.
4. The plaintiff though would claim that he had been put in the
possession and enjoyment of the suit property pursuant to the sale
agreement, however the plaintiff has miserably failed to establish the same.
As held by the Courts below, on a reading of the recitals contained in Ex.A8
sale agreement, nothing has been clearly averred therein that the plaintiff
had been put in the possession and enjoyment of the property agreed to be
conveyed pursuant to the sale agreement and been put in the possession of
the said property prior to the sale agreement. When there is no acceptable
material evidencing the claim of possession and enjoyment of the suit
property based on the sale agreement Ex.A8 on the part of the plaintiff and
when the suit property is a vacant site, accordingly, the Courts below are
found to be justified in holding that the plaintiff has failed to establish his
claim of possession of the suit property at any point of time pursuant to
Ex.A8 sale agreement or prior to the same till the date of filing of the suit.
In such view of the matter, when the agreement of sale would not create any
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S.A.No.1587 of 2008
right or interest over the suit property to the agreement holder, the plaintiff's
claim of title and possession over the suit property based on Ex.A8
agreement of sale falls to the ground.
5. From the materials available on record, it is found that the
defendant has purchased the suit property under Exs.B1 and B2. The
abovesaid sale deeds had been admitted by the plaintiff. The plaintiff's suit
for specific performance had also been dismissed. That apart, despite
having knowledge about the sale deeds Exs.B1 and B2, the plaintiff has
failed to implead the purchaser+ in the suit laid by him for specific
performance. It is stated by the plaintiff's counsel that the plaintiff has
failed to pay the balance sale consideration as directed by the Court,
therefore, it is evident that the plaintiff has never been ready and willing to
perform his part of contract based on Ex.A8 sale agreement.
6. In the light of the abovesaid factors, when the plaintiff has
miserably failed to establish his claim, possession and enjoyment of the suit
property based on Ex.A8 agreement of sale and when the documents
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S.A.No.1587 of 2008
projected by the plaintiff marked as Exs.A7, A12 to A15, A24 and A25 had
been for correct reasons, discarded by the Courts below and when as above
pointed out, the defendant's claim of title to the property in question under
Exs.B1 and B2 not having been controverted as held by the Courts below,
the relief of permanent injunction being an equitable and discretionary relief
and accordingly the Courts below are found to be justified in not granting
the abovesaid relief in favour of the plaintiff and against the defendant.
7. In view of the above, it is noted that the Courts below, on proper
and convincing reasons, had dismissed the plaintiff's suit, based on the
correct appreciation of the oral and documentary evidence adduced in the
matter, both on factual matrix and on the points of law and nothing has been
pointed out by the plaintiff's counsel to show that the same are in any
manner, perverse, illogical and irrational. In such view of the matter, no
substantial question of law is found to be involved in this second appeal.
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S.A.No.1587 of 2008
8. In conclusion, the judgment and decree dated 27.06.2002 passed in
A.S.No.157 of 2001 on the file of the Principal District Court, Salem,
confirming the judgment and decree dated 31.10.2000 passed in O.S.No.578
of 1996 on the file of the I Additional District Munsif Court, Salem are
confirmed. Resultantly, the second appeal is dismissed. No costs.
Consequently, connected miscellaneous petition, if any, is closed.
25.02.2021
mfa
Index:yes
Internet:yes
To
1. The Principal District Judge,
Principal District Court,
Salem.
2. The I Additional District Munsif,
I Additional District Munsif Court,
Salem.
Copy to
The Section Officer,
VR Section,
High Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
S.A.No.1587 of 2008
T.RAVINDRAN, J.
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S.A.No. 1587 of 2008
25.02.2021
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