Madras High Court
Govindasamy vs Pushpa on 15 July, 2021
S.A.No.268 of 2008 &
M.P.No.1 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.268 of 2008
and M.P.No.1 of 2008
Govindasamy ... Appellant
Vs.
1. Pushpa
2. Selvi
3. Vijaya
4. Murugesan ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree passed in A.S.No.29
of 2002, dated 10.06.2003 on the file of the Sub Court, Dharapuram,
confirming the Judgment and Decree passed in O.S.No.113 of 2000,
dated 28.03.2002 on the file of the District Munsif Court, Kangayam,
Erode District.
For Appellant : Mr.S.Saravanan
For Respondents : No appearance
1/10
https://www.mhc.tn.gov.in/judis/
S.A.No.268 of 2008 &
M.P.No.1 of 2008
JUDGMENT
The plaintiff in a suit for specific performance and for an
alternative relief of recovery of an advance amount of Rs.9,000/- with
interest, is the appellant before this Court.
2. The facts in brief are as follows:
The appellant would submit that the suit property belonged to
one Sarkar, the husband of the 1st respondent and the father of the
respondents 2 to 4 herein, by virtue of the sale Deed dated 07.09.1982.
Under an agreement of Sale, dated 12.11.1997, the said Sarkar agreed
to sell the same to the Appellant for a total sale consideration of a sum
of Rs.11,000/- and on the date of the agreement, he had received a sum
of Rs.9,000/- as advance. The balance amount of Rs.2,000/- was to be
paid within a period of one year, on receipt of which, the said Sarkar
had undertaken to execute the Sale Deed. It is the case of the Appellant
that possession of the suit property was handed over to him on the date
of agreement itself. He would contend that he is in possession of the
suit property by putting up a hut and using it as a kitchen and for
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S.A.No.268 of 2008 &
M.P.No.1 of 2008
residential purposes. His wife's property is situate to the southern side
of the suit property where the Appellant resides with his family. The
Appellant would submit that he was all along ready and willing to
execute the Sale Deed. However, Sarkar was postponing the execution
of the Sale Deed under one pretext or the other. Sarkar died a few
months prior to the institution of the suit and the legal heirs did not
come forward to execute the Sale Deed. Therefore, the Appellant was
constrained to issue a legal notice dated 25.07.2000 which was returned
unserved. Thereafter, the respondents have attempted to disturb the
Appellant's possession and enjoyment of the suit property on
16.05.2000 which was successfully prevented. Once again on
07.06.2000, an attempt was made. Therefore, the Appellant has come
forward with the suit in question.
3. The written statement filed by the 2nd defendant / 2nd
Respondent was adopted by other Respondents. The respondents had
at the outset denied the very agreement of sale and the receipt of
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S.A.No.268 of 2008 &
M.P.No.1 of 2008
money. It is their case that the said Sarkar had no necessity to sell the
suit property and that he had died in the year 1999 itself. The
respondents would submit that after the death of the said Sarkar, they
had settled out in Erode. In order to safeguard the suit property, the
plaintiff who was their neighbour was permitted to use the property.
Unfortunately, the Appellant with a view to grab the property, had
created that agreement of sale. The signature contained therein does
not belong to Sarkar and the house in the suit property was constructed
by late Sarkar and not by the Appellant. There was never an intention
to sell the property. The Sale agreement has also not been executed by
late Sarkar.
4. The learned District Munsif, Kangeyam had framed issues and
the Appellant had examined himself as P.W 1 and also examined 2
others witnesses. In support of his contention, he had filed Exs.A1 to
A7. The 2nd defendant/ 2nd Respondent had examined herself as D.W.1
and had not marked any documents in support of her case. The
https://www.mhc.tn.gov.in/judis/
S.A.No.268 of 2008 &
M.P.No.1 of 2008
Commissioner's report had been marked as Exs.C1 and C2. Ultimately,
the learned District Munsif, Kangeyam, had dismissed the suit.
Aggrieved by the said Judgment and Decree, the Appellant had filed
A.S.No.29 of 2002 on the file of the Sub Court, Dharapuram. The
learned Subordinate Judge dismissed the appeal and confirmed the
Judgment and decree of the Trial Court. Challenging those concurrent
Judgments and Decrees, the Appellant is before this Court.
5. When the matter had come up for admission, this Court has
directed notice to the respondents. Though notice has been served on
the respondents by substituted service (Publication), none appeared on
behalf of the respondents.
6. Mr.S.Saravanan, learned counsel appearing on behalf of the
Appellant would submit that the Courts below have totally overlooked
the evidence of P.Ws.2 and 3 who have adduced evidence regarding the
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S.A.No.268 of 2008 &
M.P.No.1 of 2008
execution of the agreement of sale Ex.A1. He would further submit
that once the agreement has been proved, the Courts below ought to
have atleast granted the alternative relief of refund of money. He
would further submit that the Respondents have themselves admitted
that they have put the Appellant in possession of the property which
would once again go to show that there was an agreement between the
parties.
7. The learned counsel would rely upon the Judgment reported in
CDJ 1966 SC 281 – M/s.Hindustan Construction Co. Ltd. Vs Union
of India in support of his argument that the writing of name would also
be considered as a signature. He would contend that in the light of the
above Judgment, the findings of the Courts below that, P.W.3 has not
signed the document and it is only his name that has been written, is
per se erroneous. He would also rely on the Judgment reported in CDJ
2015 SC 686 – K.Nanjappa (Dead) by Lrs. Vrs. R.A.Hameed Alias
Ameersab (Dead) by Lrs. And another in support of his arguments that
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S.A.No.268 of 2008 &
M.P.No.1 of 2008
he is entitled to refund of money.
8. Heard the learned counsels and perused the records.
9. The case of the appellant is that he had entered into an
agreement of sale dated 12.11.1997 for the purchase of the suit
property and that a considerable portion of the sale consideration, i.e. a
sum of Rs.9,000/- had been paid on the very same day of the execution
of the agreement and what would remain was a sum of Rs.2,000/-
which is payable within a period of one year. However, the first notice
that has been issued by the plaintiff is only on 27.05.2000 and that too
after the death of the original vendor and there is no explanation for the
silence between the period from 12.09.1997 till the date of first legal
notice. The balance amount is only minuscule sum of Rs.2,000/-.
Further, the fact that no steps had been taken till the death of Sarkar has
created suspicion in the minds of the Courts regarding the very
execution of this agreement of sale, particularly, when the Respondents
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S.A.No.268 of 2008 &
M.P.No.1 of 2008
have denied the agreement and also the signature of the said Sarkar.
By not taking any steps to have the agreement specifically enforced for
nearly a period of three years, the plaintiff has clearly not proved his
readiness and willingness to go ahead with the Sale Deed and also
lends credence to the contention of the respondents that the agreement
is a fabricated one. The Courts below have been prompted to believe
the contentions of the respondents/defendants that the agreement of
sale was a fabricated one by reason of the fact that, the words “handed
over possession” (c';fs; RthjPdj;jpy; tplL
; tpl;nld;) appears to be an
interpolation. The style of writing and the Ink used are different.
P.W.3 has also accepted the same. The Courts below found that this
addition has not been countersigned by late Sarkar. Therefore, the
Courts below have come to the conclusion that the very agreement of
sale has been fabricated by the Appellant and therefore, the suit for
specific performance had been dismissed and the alternative relief was
also not granted. The Courts below having appreciated the evidence on
record properly, this court sitting in Second Appeal cannot
https://www.mhc.tn.gov.in/judis/
S.A.No.268 of 2008 &
M.P.No.1 of 2008
re-appreciate the evidence on record. I do not find any substantial
question of law warranting interference of this court to the concurrent
Judgment and Decree of the Courts below. The Second Appeal stands
dismissed accordingly. No costs. Consequently, connected
miscellaneous petition is closed.
15.07.2021
Index : Yes/No
Speaking Order : Yes / No
vum
To
1. The Sub Court, Dharapuram.
2. The District Munsif Court,
Kangayam, Erode District.
3. The Section Officer,
VR Section, Madras High Court,
Chennai.
P.T. ASHA, J,
https://www.mhc.tn.gov.in/judis/
S.A.No.268 of 2008 &
M.P.No.1 of 2008
vum
S.A.No.268 of 2008
and M.P.No.1 of 2008
15.07.2021
https://www.mhc.tn.gov.in/judis/
