Madras High Court
Thirupathi vs Santhi on 12 November, 2021
S.A.No.812 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 12.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.812 of 2021
Thirupathi,
S/o.Kaliyanna Gounder,
Agrahara Periya Ayyampalayam,
Nalli Palayam Post,
Namakkal Taluk and District. ... Appellant
.Vs.
1.Santhi,
W/o.M.Krishnamoorthy,
Agrahara Periya Ayyampalayam,
Nalli Palayam Post,
Namakkal Taluk and District.
2.Palanisamy,
S/oAyyannan,
Katoor, P.Nattamangalam Post,
Salem Taluk and District. ... Respondents
PRAYER: Second Appeal filed under Section 100 of CPC to set aside
the Decree and judgment passed in A.S.No.:58/2020 dated 24.02.2021 by
the learned Additional Subordinate Judge, Namakkal, confirming the
Decree and judgment dated 29.09.2020 passed by the learned Additional
District Munsif, Namakkal in O.S.No.222 of 2016.
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S.A.No.812 of 2021
For Appellant : Mr.R.Rajesh
JUDGMENT
This Second Appeal is filed against the judgment and decree
passed in A.S.No.58 of 2020 by the learned Additional Subordinate
Judge, Namakkal on 24.02.2021.
2.The 1st Respondent filed Suit in O.S.No.222 of 2016 for the
relief of (1) declaration that the judgment and decree dated 04.08.2011 in
O.S.No.239 of 2011 on the file of the Additional District Munsif,
Namakkal and the proceedings taken in R.E.P.No.109 of 2012 in
pursuance of the decree passed in O.S.No.239 of 2011 dated 13.09.2013
by executing sale deed in favour of the 2nd defendant, as null and void
and not binding on the Plaintiff and (2) for injunction restraining the 2nd
defendant from interfering with Plaintiff's possession and enjoyment of
the suit property and for other reliefs.
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S.A.No.812 of 2021
3.It is seen from the Plaintiff's averments that the 1st
Respondent/Plaintiff purchased the suit property from 2nd respondent/1st
defendant on 02.05.2008 and has been enjoying exclusively. The 2nd
Respondent purchased the suit property from Periyathambi vahaiyara on
24.11.1998. The 2nd Respondent had entered into a sale agreement with
one Mr.Chinnu on 02.02.1999 and that sale agreement had not fructified
into sale. Thereafter, 1st Respondent purchased the suit property. 1st
Respondent made efforts to construct building in the suit property and
when she obtained Encumbrance Certificate she found that a sale in
favour of the 2nd respondent was effected by the Additional District
Munisff, Namakkal in R.E.P.No.109 of 2012 in O.S.No.239 of 2011.
She came to know that an unregistered sale agreement was created
between the appellant and the 2nd respondent on 25.04.2008. On the
basis of the said agreement, the Suit in O.S.No.239 of 2011 was filed for
relief of specific performance and suit was not contested by the 2 nd
respondent and therefore, exparte decree was passed. On the basis of this
ex parte decree, R.E.P.No.109/2012 was filed and sale deed was executed
in favour of the Appellant. Therefore, suit for the aforesaid reliefs.
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S.A.No.812 of 2021
4.Appellant filed written statement denying all the allegations
made against him. It is contended that sale agreement was true and
genuine. On the basis of the sale agreement, he filed suit for specific
performance and the suit was decreed. Subsequently, sale deed also
executed in favour of the Appellant. It is also pleaded that in pursuance
of the sale deed executed by the Court in R.E.P.No.109 of 2012, the
appellant is in possession and enjoyment of the suit property. Thus
appellant prayed for dismissal of the suit.
5. On the basis of the above pleadings, the trial Court framed
the following issues for consideration:
“(1)Whether the Plaintiff is entitled for the relief
of declaration?
(2)Whether the Plaintiff is entitled for the relief of
injunction?
(3)To what other relief, Plaintiff is entitled?”
6. During the trial, Plaintiff/1st Respondent was examined as
PW1 and appellant/2nd defendant was examined as DW1. Exs.A.1 to
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S.A.No.812 of 2021
A.10 were marked on the side of the 1st Respondent and Exs.B.1 to B.3
were marked on the side of the Appellant.
7.On considering the oral and documentary evidence and the
submissions of the learned counsel appearing on behalf of the parties, the
learned Additional District Munsif, Namakkal, found that the 1st
Respondent is entitled for the relief of declaration that the judgment and
decree in O.S.No.239 of 2011 and the execution of sale in R.E.P.No.109
of 2012 insofar as the 1100 sq. ft. of the suit property is not legally
sustainable and will not bind the Plaintiff. Also granted permanent
injunction against the appellant not to disturb the possession and
enjoyment of the property by the 1st Respondent. In Appeal, the
judgment of the trial Court is confirmed. Challenging the same, Second
Appeal is filed.
8.Learned counsel for the Appellant submitted that the Appellant
has bonafidely entered into sale agreement with the 2nd respondent. He
was not aware of the sale deed executed by the 2nd respondent in favour
of the 1st Respondent. The sale consideration was fixed at Rs.25,000/-,
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S.A.No.812 of 2021
he paid a sum of Rs.20,000/- as advance and three years period was fixed
for paying the balance sum of Rs.5,000/- and for completion of sale.
Since the 2nd respondent has not come forward to execute the sale deed, it
necessitated, the filing of O.S.No.239 of 2011. The suit in O.S.No.239 of
2011 was decreed and then, the sale deed was executed by the Court in
pursuance of the decree. There is nothing to suggest that he colluded
with the 2nd respondent in creating the sale agreement. He obtained a
valid decree and got the sale deed executed . It is not legally correct on
the part of the 1st respondent to seek the relief of declaration that the
judgment and decree in O.S.No.239 of 2011 and the sale deed executed
in pursuance of the decree will not bind her. These aspects have not been
considered by the Courts below. It is also submitted by the learned
counsel for the appellant that the first Appellate Court has not considered
the matter independently. It extensively referred the judgment of the trial
Court and confirmed the judgment of the trial Court, without giving any
independent opinion and finding. Therefore, the judgment of the learned
Subordinate Judge, Namakkal passed in A.S.No.58 of 2020 dated
24.02.2021 has to be set aside and the Second Appeal has to be allowed.
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S.A.No.812 of 2021
9.There are certain facts in which there is no dispute. The 2nd
Respondent is the owner of the suit property in O.S.No.239 of 2011. The
suit property in O.S.No.239 of 2011 is only to an extent of 1100 sq. ft.,
whereas the suit property in the case before hand (i.e.,) O.S.No.222 of
2016 is 2205½ sq.ft. Admittedly, this property was purchased by the 1st
respondent from the 2nd respondent on 02.05.2008. The sale agreement
in favour of the appellant was dated 25.04.2008. The sale agreement was
executed just 7 days before the execution of the sale deed by the 2nd
respondent in favour of the 1st respondent. This sale agreement was
marked as Ex.A4. It is seen from the recital of the sale agreement that
the sale price for the property was fixed at Rs.25,000/-. On the date of
sale agreement, (i.e.,) on 25.04.2008, a sum of Rs.20,000/- was paid as
advance. A period of three years was fixed for paying a paltry balance
sale consideration of Rs.5,000/-. It is not known, why a long period of
three years was fixed for paying a paltry balance sale consideration of
Rs.5,000/-. There is no specific reason given in the sale agreement for
giving such a long time for paying the balance sale consideration of
Rs.5,000/-.
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S.A.No.812 of 2021
10.It is recited in the sale agreement that the possession was
handed over, but the truth is that the possession was not handed over to
the appellant on the date of sale agreement. It is on record that appellant
filed EP for execution of sale deed. When the appellant was in a position
to pay 4/5th share of the sale consideration (ie.,) Rs.20,000/- out of
Rs.25,000/-, why he has not paid entire sum of Rs.25,000/- and executed
the sale deed, instead of going for sale agreement, giving three years
period for paying balance sale consideration. There is no explanation at
all. The suit property with its larger extent of 2205½ sq.ft., sold for
Rs.1,50,000/-. At any rate, the sale price fixed at Rs.25,000/- in Ex.A.4
sale agreement is not in consonance with sale price found in Ex.A.3, sale
deed. Appellant cannot be considered as a bona fide purchaser for value.
Thus for all these reasons, the Courts below have come to the conclusion
that the sale agreement in favour of the Appellant is not true and genuine
and it was created in collusion with the 2nd respondent. The fact that the
2nd respondent remained exparte in the suit for specific performance lends
support to this view.
11.Therefore, this Court finds no reason, to interfere with the
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S.A.No.812 of 2021
findings of the Court below. Though the 1st Appellate Court had
extensively extracted the judgment of the trial Court, it has also recorded
its own reason and finding to concur with the judgment of the trial Court.
There is no substantial question of law involved in this Appeal and
therefore, this Second Appeal is dismissed, by confirming the judgment
of the learned first Appellate Court in A.S.No.58 of 2020 dated
24.02.2021 made by the learned Additional Subordinate Judge,
Namakkal, confirming the Decree and judgment dated 29.09.2020 made
by the learned Additional District Munsif, Namakkal in O.S.No.222 of
2016. No costs.
12.11.2021
Speaking Order/Non Speaking Order
Index : Yes / No
Internet : Yes / No
sai
To
The learned Additional Subordinate Judge,
Namakkal.
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S.A.No.812 of 2021
G.CHANDRASEKHARAN, J.
sai
S.A.No.812 of 2021
Dated: 12.11.2021
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