Madras High Court
Venkatesan vs Narayanan on 9 July, 2021
S.A.No.302 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.07.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
S.A.No.302 of 2016
(Through Video Conferencing)
Venkatesan ... Appellant
Vs.
Narayanan ... Respondent
Second Appeal filed under Section 100 of Civil Procedure Code, 1908
against the Judgment and Decree dated 07.01.2016 made in A.S.No.28 of
2010 on the file of the Subordinate Judge at Kanchipuram in confirming the
appeal against the Judgment and Decree dated 16.02.2010 made in
O.S.No.70 of 2006 on the file of the District Munsif cum Judicial Magistrate,
Uthiramerur.
For Appellant : Mr.Y.Jyothish Chander
For Respondent : No appearence
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S.A.No.302 of 2016
JUDGMENT
This case was listed today for final hearing. However, there is no
representation on behalf of the respondent though the name of the learned
counsel for the respondent is printed in the cause list.
2. This appeal has been filed by the unsuccessful defendant before the
Trail Court and First Appellate Court. The respondent herein had filed
O.S.No.70 of 2006 for specific performance to direct the appellant/defendant
herein to execute a sale deed in favour of the respondent/plaintiff in terms of
Ex.A1 Sale Agreement dated 05.11.2004 and for a permanent injunction to
restrain the appellant/defendant and his men or agent from alienating or
encumbring in the suit schedule property.
3. The appellant/defendant admits to three signature in Ex.A1 Sale
Agreement dated 05.11.2004. Under the aforesaid agreement, the
appellant/defendant agreed to sell 43 Cents of agricultural land to the
respondent/plaintiff at Rs.395/- per Cent. The Ex.A1 Sale Agreement also
recorded that the appellant/defendant had received a sum of Rs.5,000/- on the
date of agreement and another sum of Rs.5,000/- on 22.11.2004. The
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subsequent endorsements dated 30.06.2005 and 12.11.2005 indicate that the
appellant had received a sum of Rs.6,000/- and Rs.1,000/- respectively as
balance sale consideration out of Rs.16,985/-.
4. The appellant/defendant has however disputed the signature in
Ex.A3 and A4 endorsements dated 30.06.2005 and 12.11.2005 in Ex.A1 Sale
Agreement evidencing the receipt of the balance sale consideration of
Rs.6,000/- and Rs.1,000/- respectively. It was the case of the
respondent/plaintiff before the Trial Court that the appellant/defendant having
received the entire sale consideration declined to execute the sale deed.
Therefore, the appellant/defendant was to be directed to execute a sale deed in
favour of the respondent/plaintiff. The respondent/plaintiff also prayed for a
permanent injunction to restrain the appellant/defendant and his men or agent
from alienating or creating encumbrance over the suit schedule property.
5. In the plaint, it has been stated that cause of action for the suit arose
on 05.01.2004, i.e. the date of execution of sale agreement and that the
appellant/defendant had handed over the possession of the suit schedule
property to the respondent/plaintiff and that there was part performance. The
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S.A.No.302 of 2016
appellant/defendant, admitted having received a sum of Rs.16,000/- in three
installments as Rs.5,000/-, Rs.5,000/- and Rs.6,000/- on 05.11.2004,
30.06.2005 and 30.06.2005 respectively.
6. The appellant/defendant had however denied having a sum of
Rs.1,000/- on 12.11.2005. On perusing the Ex.A1 Sale Agreement dated
05.11.2004 filed before the Trial Court, the appellant/defendant filed an
additional written statement. The appellant/defendant denied the signature in
Ex.A3 and A4 dated 30.06.2005 and 12.11.2005. Before the Trial Court, the
appellant/defendant has taken a legal plea that though amount of Rs.16,000/-
was attempted to be returned back to the respondent/plaintiff, the
respondent/plaintiff refused to receive the same with an evil intention of
usurping appellant's/defendant's property. The Trial Court has framed the
following issues:-
i. Whether the respondent/plaintiff is entitled for the relief
prayed for?
ii. What other relief to the respondent/plaintiff is entitled
for?
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7. The Trial Court has decreed the suit by holding that the
respondent/plaintiff has proved that the appellant/defendant received the
amount of entire sale consideration as per the Ex.A1 Sale Agreement dated
05.11.2004, signatures were that of the appellant/defendant in endorsements
in Exs.A3 and A4 dated 30.06.2005 and 12.11.2005 respectively and the
respondent/plaintiff was entitled for the relief of specific performance.
8. Aggrieved by the same, the appellant/defendant has preferred an
appeal before the First Appellate Court, namely Subordinate Judge's Court at
Kanchipuram. The First Appellate Court has rejected the appeal of the
appellant/defendant and concluded that though the Ex.A1 Sale Agreement
dated 05.11.2004 does not disclose the transfer of possession of the suit
schedule property, the appellant in his evidence has stated that the
respondent/plaintiff was in possession of the suit schedule property and
therefore, the appeal filed by the appellant/defendant was liable to be rejected.
The First Appellate Court has further concluded that the appellant has given
a contradictory version.
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9. I have heard the learned counsel for the appellant. I have perused the
evidence on record and the impugned Judgment and Decree passed by the
First Appellate Court and the Judgment and Decree passed by the Trial Court.
10. The Trial Court has not framed the correct issues based on the
averments and the documents that was filed before it. Instead of, the Trial
Court has framed a omnibus issue and answered it in favour of the
respondent/plaintiff.
11. The burden of proof was on the respondent/plaintiff as held by this
Court in Robinson Vs. Ramachandran, 2014 SCC OnLine Mad 738 :
(2014) 6 CTC 195.
12. The appellant has questioned the signatures made in Ex.A3 and
Ex.A4 dated 30.06.2005 and 12.11.2005 which form part of Ex.A1 Sale
Agreement dated 05.11.2004. Further, the categorical case of the
respondent/plaintiff before the Trial Court as was noticed from the cause of
action is that the appellant/defendant has put the appellant's/plaintiff's suit
schedule property. If the suit schedule property is to be in possession of the
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respondent/plaintiff, then Ex.A1 Sale Agreement date 05.11.2004 ought to
have registered in terms of Section 17(1-A) of the Registration Act, 1908,
which came into effect on 24.09.2001.
13. Recently, the Madurai Bench of this Court, in T.S.Govindarajan
Vs. M.Govindarajan, 2020 (4) CTC 61, has confirmed that unless the
documents are not present, they cannot seen the part performance.
14. In the light of the specific plea of the respondent/plaintiff, the Court
ought to have framed the following issues:-
i. Whether the respondent/plaintiff was ready and willing
to perform the Ex.A1 Sale Agreement dated
05.11.2004?
ii. Whether the signatures of the appellant/defendant in
Ex.A3 and Ex.A4 Endorsements were valid or not?
iii. Whether there was any part of the performance of the
Ex.A1 Sale Agreement dated 05.11.2004?
iv. Whether indeed the suit schedule property was in
possession of the respondent/plaintiff?
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15. There is no discussion on the effect of non-registration of Ex.A1
Sale Agreement dated 05.11.2004. It is further noticed that both the Trial
Court and the First Appellate Court have misconstrued the deposition of the
appellant/defendant during the cross examination. The appellant/defendant
has not admitted of having parted with the suit schedule property in favour of
the respondent/plaintiff. On the other hand, the appellant/defendant has
merely stated that there were cross complaints before the jurisdictional police
station filed both by the appellant/defendant and the respondent/plaintiff
regarding the alleged trespassing of the property during the pendency of the
said suit.
16. The deposition of the appellant/defendant has been misconstrued
by the Trial Court by coming to the conclusion that the appellant/defendant
has parted with suit schedule property in favour of the respondent/plaintiff.
That apart, a remedy of specific performance under Section 20 of the Specific
Relief Act, 1963 is a discretionary remedy. The alleged Ex.A1 Sale
Agreement dated 05.11.2004 does not reflect the correct market value of 45
Cents of the land. A meager amount of Rs.16,985/- cannot represent value of
the land. The fact that the appellant/defendant received a sum Rs.16,000/-
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S.A.No.302 of 2016
from the respondent/plaintiff however has not been denied. It is possible for
the appellant/defendant may have also received the balance amount of
Rs.985/- also from the respondent/plaintiff.
17. Therefore, I direct the appellant/defendant to deposit the amount of
Rs.17,000/- together with interest 7.5% per annum from the date of payment
of each amounts till the date of deposit before Tribunal, within a period of
eight weeks from the date of receipt of a copy of this Judgment.
18. On such deposit being made by the appellant/defendant, the
respondent/plaintiff shall be entitled to receive the same together with interest.
19. The Registry is directed to return back the original records to the
lower court. On receiving the amount of Rs.17,000/- together with interest at
7.5% by the respondent/plaintiff, Ex.A1 Sale Agreement dated 05.11.2004
containing the endorsements dated 30.06.2005 and 12.11.2005 in Ex.A3 and
Ex.A4 shall be returned back to the appellant/defendant.
C.SARAVANAN, J.
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jen
20. The substantial questions of law framed by the appellant/defendant
are therefore answered in favour of him. Thus, the Second Appeal is liable to
be allowed and is hereby allowed. No cost.
09.07.2021
Index : Yes/No
Internet : Yes/No
jen
To
1.The Subordinate Judges Court,
Kanchipuram.
2.The District Munsif cum Judicial Magistrates Court,
Uthiramerur.
3.The Section Officer,
V.R. Section, Madras High Court.
S.A.No.302 of 2016
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