Madras High Court
M.Anuratha vs R.Usharani on 13 April, 2022
A.S.(MD)No.15 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.04.2022
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
A.S.(MD)No.15 of 2017
M.Anuratha ... Appellant/Plaintiff
Vs.
Senthil (Died)
1.R.Usharani
2.N.Rajeswari
3.R.Santhi
4.R.Duraipandian
5.R.Thirugnanam
6.S.Chithira
7.R.Sumathi
8.Senthamarai
9.Minor Padmalakshmi ... Respondents/Defendants 2 to 10
(Rep. by her Mother 8th Respondent/Senthamarai)
Prayer : Appeal Suit filed under Order 41 Rule 1 r/w. Section 96 of Civil
Procedure Code, against the judgment and decree passed in O.S.No.13 of 2013
on the file of Additional District Court (Fast Track Court), Kumbakonam dated
29.11.2016.
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For Appellant : Mr.V.K.Vijayaragavan
For Respondents : Mr.M.V.Santharaman for R2 to R7
Mr.S.Srinivasa Raghavan for R8
JUDGMENT
This Appeal Suit has been preferred challenging the judgment and decree of the
learned Additional District Judge (Fast Track Court), Kumbakonam, dated
29.11.2016 made in O.S.No.13 of 2013.
2.The appellant is the plaintiff; the suit has been filed for the relief of specific
performance on the basis of the sale agreement dated 16.02.2012 entered into
between the first defendant for himself and the power agent for second
defendant and the plaintiff; the subject matter of the sale agreement, which is
the suit property herein was originally owned by Lakshmana Moopanar by
virtue of a partition deed dated 26.03.1964 vide Document No.247 of 1964;
Lakshmana Moopanar died intestate on 20.05.2008 leaving behind the
defendants 1 and 2 as his legal heirs; after the death of Lakshmana Moopanar,
the second defendant appointed the first defendant as her power agent on
20.06.2008; on 30.09.2009, the first defendant borrowed a sum of Rs.3,00,000/-
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from the plaintiff and entrusted the possession of the suit property to the
plaintiff in lieu of interest; the first defendant borrowed another sum of Rs.
1,50,000/- on 14.11.2011 and this loan was also endorsed on the earlier loan
agreement dated 30.09.2009; subsequently both the defendants offered to sell
the suit property to the plaintiff; so, the first defendant for himself and the
power agent for second defendant entered into a sale agreement dated
16.02.2012 for the sale consideration of Rs.16,20,000/-; on the date of sale
agreement, a part sale consideration of Rs.1,00,000/- was paid; the loan amount
of Rs.4,50,000/- already availed under the loan agreement dated 30.09.2009
was also treated as part sale consideration; the time for performance of the
contract was fixed as three months; the plaintiff was ready and willing to
perform her part of the contract; on 26.02.2012, when the plaintiff approached
the first defendant for getting the sale deed executed, she was told that there is
an excess of land on the ground; the plaintiff agreed to pay excess amount for
the area more than 9000 sq. ft, which was the subject matter of the sale
agreement; the plaintiff paid a further sum of Rs.1,00,000/- on 26.02.2012 and
got endorsement in the sale agreement; suddenly, the second defendant
cancelled her power in favour of the first defendant; when the plaintiff enquired
about that, the first defendant assured that the second defendant would come in
person and execute the sale deed in favour of the plaintiff; but the defendants 1
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and 2 did not come forward to execute the sale deed as agreed; she issued legal
notice on 15.01.2013 and that was received by the first defendant; the plaintiff
has sufficient means to pay the balance sale consideration also; hence, the
plaintiff has filed the suit for specific performance or in the alternative to return
the advance amount with interest.
3.The first defendant died during the pendency of the suit; the second defendant
did not file any written statement; the defendants 3 to 8 claimed that the suit
property belonged to them and impleaded themselves as parties to the suit and
contested the suit; the defendants 9 and 10 were also impleaded as parties under
the order of the Court; as per the statement of the contesting defendants, the suit
property was originally belonged to the joint family property comprised of
Ayyakannu, Ramasamy and Lakshmana Moopanar; they entered into a family
partition on 26.03.1964; in the said partition, Ramasamy Moopanar was allotted
14 ares compromised in S.No.7/1 including the suit property measuring 12 ares
comprised in S.No.7/1A1 and 11 ares comprised in S.No.7/1A was allotted to
the share of Lakshmana Moopanar; in the sub division, the property allotted to
Lakshmana Moopanar was given with S.No.7/1; the property allotted to
Lakshmana Moopanar was acquired by the Government; a portion of the
property allotted to Ramasamy Moopanar was acquired in S.No.7/1A and the
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remaining the property was given with S.No.7/1A1; this fact was suppressed
when the sale agreement was entered into between the plaintiff and the
defendants 1 and 2; since the defendants 1 and 2 did not have right to execute
the sale deed, the plaintiff is not entitled to get the relief of specific
performance.
4.Basing of the above pleadings, the learned trial Judge framed the following
issues:-
“1.thjp tHf;fpy; nfhhpa[s;s Vw;wij Mw;Wfg; ghpfhuk; thjpf;F fpilf;f
Toajh?
2.thjp khw;W ghpfhukhf nfhhpa[s;s U:.7.13.000/-I tl;oa[ld; ju
ntz;Lbkd;W nfl;Ls;s ghpfhuk; thjpf;F fpilf;fj; jf;fjh?
3.thjpf;F fpilf;Toa ,ju ghpfhuk; vd;d?”
5.During the course of trial, on the side of the plaintiff, two witnesses were
examined as P.W.1 and P.W.2 and Exs.A1 to A9 were marked. On the side of
the defendants, two witnesses were examined as D.W.1 and D.W.2 and Exs.B1
to B13 were marked.
6.At the conclusion of the trial and on considering the evidence available on
record, the learned trial Judge decreed the suit for refund of Rs.7,13,000/- along
with interest at the rate of 12% per annum from the date of plaint till the
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disposal of the suit and at the rate of 6% per annum from the date of disposal of
the suit till the date of realization and the suit was dismissed in respect of the
relief of specific performance; aggrieved over that, the plaintiff had filed this
Appeal Suit.
7.Heard the learned counsel for the appellant and the learned counsel for the
respondents and went through the evidence on record.
8.The learned counsel for the appellant submitted that the defendants 3 to 10
are unnecessary parties to the suit for specific performance because they are not
parties to the sale agreement/Ex.A1; as per the partition deed dated 26.03.1964
and the boundary recitals found therein, it can be seen that the suit property was
allotted under 'C' schedule to the share of Lakshmana Moopanar and not
Ramasamy Moopanar; the defendants 1 and 2 had colluded with their cousins
namely, the legal heirs of Lakshmana Moopanar and filed the suit to defeat the
interest of the appellant; subsequent to the sale agreement, the patta stood in the
name of the first defendant was cancelled and that will not affect the right of the
appellant to get the relief of specific performance; the subject matter of the
acquisition made by the Government does not include the suit property; the suit
property in S.No.7/1 was apportioned between Ramasamy Moopanar and
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Lakshmana Moopanar in the east-west portion; the western portion had fixed
boundaries on the eastern side and southern side and it includes a sougandi; the
features of the property allotted to the share of Lakshmana Moopanar would
show that the property subject to the sale agreement is available on ground and
hence, the learned trial Judge ought to have decreed the suit for the relief of
specific performance.
9.The contesting defendants had also filed a suit against the defendants 1 and 2
in O.S.No.105 of 2013 before this Sub Court, Kumbakonam and it is still
pending; hence, with abundant caution a preliminary decree for specific
performance can be passed subject to the outcome of the above suit pending
between the contesting defendants and the defendants 1 and 2; subsequent to
the execution of the sale deed in favour of the plaintiff, the second defendant
had wantonly cancelled the power in favour of the first defendant and
thereafter, the patta in the name of the first defendant also was cancelled; since
the patta stood in the name of the first defendant at the time when the sale
agreement was entered into, the subsequent cancellation will not impact the
interest of the appellant; in the suit for specific performance, the Court cannot
decide about the title between the executant of the sale agreement and third
parties; hence, the Appeal Suit should be allowed.
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10.The learned counsel for the respondents 2 to 7 submitted that the appellant
cannot purforth argument for the pleadings, which were not pleaded by them in
the suit; the first defendant entered into a sale agreement in respect of the suit
property in favour of the appellant without having any title; the suit property
was allotted to the share of the ancestor of the defendants 3 to 8 namely,
Ramasamy Moopanar; the property belonged to Lakshmana Moopanar was
acquired in the land acquisition proceedings and he also received compensation
from the Government; the patta was created subsequent to the sale agreement;
when the suit was pending between the parties in respect of title to the suit
property in O.S.No.105 of 2013, this suit ought to have been stayed; even if any
decree is passed in favour of the appellant, that can only be a non-executable
decree; the learned trial Judge is correct in granting the relief of refund of the
advance amount; the proceedings to cancel the patta was passed after giving
notice to the appellant herself; Exs.B1 and B2 would show that the appellant
also participated in the patta cancellation proceedings; the appellant colluded
with the defendants 1 and 2 and created the sale agreement in order to defeat
the interest of the contesting defendants; hence, the Appeal Suit should be
dismissed.
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11.Though the defendants 1 and 2 did not contest the suit, the learned counsel
for the second defendant had made his appearance and expressed his
willingness to comply with the decree by way of refunding the advance amount
as decreed by the trial Court.
12.Point for consideration:
“Whether the judgment and decree passed the leaned trial Judge is
fair and proper?”
13.The deceased first defendant had entered into a sale agreement in favour of
the appellant for herself and as power agent for the second defendant on
16.02.2012, the sale agreement has been marked as Ex.A1. The property is said
to be belonging to the father of the defendants 1 and 2 namely, Lakshmana
Moopanar under a family partition deed dated 26.03.1964. The copy of the
partition deed was produced as Ex.A6. In the said partition deed, both
Lakshmana Moopanar and Ramasamy Moopanar were allotted with properties
in S.No.7/1 with proper boundaries. The extent of the property allotted to
Lakhsmana under 'C' schedule was 25 cents and the extent of property allotted
to Ramasamy Moopanar under 'B' schedule was 36 cents. In the year 1993
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itself, there was land acquisition proceedings in which, the property of both
Lakshmana Moopanar and Ramasamy Moopanar was acquired. As seen from
Ex.B3/land acquisition award an extent of 0.12.0 ares in S.No.7/1A1 was
acquired from Ramasamy Moopanar and an extent of 11 ares in S.No.7/1B was
acquired from Lakshmana Moopanar. It was claimed by the contesting
defendants that 11 ares acquired from Lakshmana Moopanar would be
equivalent to 25 cents and that was the property allotted to his share in the
partition deed. So, it is submitted that the legal heirs of Lakshmana Moopanar
did not have any right in respect of the suit property to enter into a sale
agreement in favour of the appellant. In the sale agreement/Ex.A1, there is no
mention about the land acquisition proceedings and in the description of the
property also, it is shown that 9000 sq. ft. in S.No.7/1A was the subject matter
of sale. The said extent was less than 25 cents allotted to the share of
Lakshmana Moopanar in Ex.A6/partition deed. However, in the sale
agreement, there was no details as to why only 9000 sq. ft. was included. It is
submitted by the learned counsel for the appellant that there was Soukandi in
the property allotted to the share of Lakshmana Moopanar and that would serve
as landmark for the property allotted in Ex.A6/partition deed. It is further
submitted that such Heard the learned counsel for the appellant and the learned
counsel for the respondents and went through the evidence on record. was
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demolished by the contesting defendants on the strength of the injunction order
obtained by them in a subsequent suit filed in respect of the suit property.
14.From the arguments of both side counsels and records produced before the
Court, it is seen that a suit in O.S.No.105 of 2013 is pending before the learned
Principal Sub Court, Kumbakonam between the contesting defendants and the
parties to the sale agreement. In fact, this suit ought to have been stayed until
the result of the suit in O.S.No.105 of 2013 or atleast, the learned trial Judge
ought to have conducted simultaneous trial in both the suits. But this suit was
disposed earlier, even though the contesting defendants were parties to the
present suit as well. Unless the other suit is disposed, no executable decree can
be granted even if it is found that the appellant is entitled to the relief of
specific performance. The materials and contentions raised in this suit are
relevant and appropriate only to decide the title suit pending in O.S.No.105 of
2013. Despite there is land acquisition proceedings in the same survey
numbers, the Government was not arrived as party to the suit for title in
O.S.No.105 of 2013. It is advisable that the Government can also be added as a
party to the suit in order to avoid multiplicity of proceedings. If any finding is
rendered about the title or incidental to the tile of the parties, that would
prejudice the rights in the other suit pending in O.S.No.105 of 2013. If the
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question of title is not adverted in this suit and mere decree for specific
performance is granted, that cannot be an executable decree because of the
pending suit with regard to the title of the suit property.
15.In this context, I feel it is appropriate to remand the matter to the file of the
trial Court itself in order to deliver judgment after the disposal of the suit in
O.S.No.105 of 2013 and subject to the outcome of that suit. Though the trial is
completed, the learned trial Judge can wait and deliver the judgment in this suit
after the disposal of the other suit in O.S.No.105 of 2013. Since the result of
O.S.No.105 of 2013 would have an impact in this suit, I deem it appropriate to
remand the matter to the file of the trial Court in terms of the observations made
as above.
16.In the result, the Appeal Suit is allowed and the judgment and decree of the
learned Additional District Judge (Fast Track Court), Kumbakonam, dated
29.11.2016 made in O.S.No.13 of 2013 is set aside and the matter is remitted
back to the file of the learned trial Judge for considering the materials afresh
and delivering the judgment after the disposal of the suit in O.S.No.105 of
2013. Since the Government also seems to be a necessary party in O.S.No.105
of 2013, it is advisable that appropriate steps be taken to implead the
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Government as a party to the above proceedings. Since the trial is already
concluded, it is not obligatory on the part of the learned trial Judge to try the
suit afresh. It is open to the learned trial Judge to deliver the judgment basing
on the evidence already recorded and the evidence already received. However,
the judgment in this suit should be delivered only after the disposal of O.S.No.
105 of 2013. No costs.
13.04.2022
Index : Yes / No
Internet : Yes/ No
ias
To:
The Additional District Court (Fast Track Court),
Kumbakonam.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.15 of 2017
R.N.MANJULA, J.
ias
A.S.(MD)No.15 of 2017
13.04.2022
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