Madras High Court
C.Ammasi (Died) vs Kamalam on 20 April, 2022
S.A.No.186 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.04.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Second Appeal No.186 of 2014
and MP No.1 of 2014
C.Ammasi (Died)
2. Mrs.Mani
3. Vijayanathan ... Appellants
Appellants 2 & 3 brought on record as
LRs of the deceased sole Appellant vide
order of Court dated 07.11.2019 made in
CMP No.23529 to 23531/19 in SA 186/2014 (RSMJ)
Vs.
1. Kamalam
2. Kandasamy
3. Raju ... Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 14.09.2013 made in
AS No.41 of 2006 on the file of the I Additional District Judge of Salem
confirming the judgment and decree dated 17.10.2005 in O.S. No.43/2003
on the file of the Subordinate Judge, Sankari.
1/11
https://www.mhc.tn.gov.in/judis
S.A.No.186 of 2014
For Appellants : Dr. P.Jagadeesan
For Respondents : Ms. R.Meenal
JUDGMENT
The plaintiff is the appellant in the Second Appeal. The plaintiff
died during the pendency of the Second Appeal and hence his legal
representatives have been impleaded as the second and third appellants.
2. The plaintiff filed the suit seeking for the relief of specific
performance based on the agreement of Sale dated 13.09.1993 marked as
Ex.A1. The plaintiff also claimed for an alternative relief of refund of the
advance amount along with the interest and for creating a charge over the
suit property till the repayment of the advance amount.
3. The case of the plaintiff is that the suit property absolutely
belongs to the first defendant. The first defendant is a relative of the
plaintiff. They entered into an agreement of sale on 13.09.1993 and the
total sale consideration was fixed at Rs.1,35,000/-. The further case of the
plaintiff is that he paid an advance of Rs.45,000/- on the date of
agreement. As per the agreement, the first defendant agreed to execute the
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S.A.No.186 of 2014
sale deed on receipt of the balance amount of Rs.90,000/-. It was further
pleaded that the first defendant agreed to handover possession of the suit
property to the plaintiff and a registered usufructuary Mortgage Deed was
executed on 13.09.1993, marked as Ex.A2. Thereby the plaintiff was in
possession and enjoyment of the property and he was also paying the
kisth.
4. The grievance of the plaintiff was that he was ready and willing
to pay the balance amount of Rs.90,000/- to the first defendant and the
first defendant was evading the receipt of the amount and the execution of
the Sale Deed in favour of the plaintiff. That apart, the first defendant
was also attempting to interfere with the possession and enjoyment of the
suit property. Left with no other alternative, the suit came to be filed
seeking for the reliefs mentioned supra.
5. The first defendant filed a written statement and took a stand that
the sale agreement itself is a false and fabricated document. It was further
pleaded that the first defendant had executed a usufructuary mortgage in
favour of the plaintiff after borrowing a sum of Rs.10,000/- and was
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S.A.No.186 of 2014
requesting the plaintiff to receive back the amount and to permit the
plaintiff to redeem the suit property. The plaintiff did not comply with the
request made by the first defendant. Thereafter, the agreement of sale was
created and a vexatious suit was filed. Accordingly, the first defendant
sought for the dismissal of the suit.
6. The second and third defendants filed a written statement and
took a stand that the first defendant never entered into an agreement of
sale with the plaintiff. According to these defendants, they entered into a
registered sale agreement with the first defendant on 07.03.2003, marked
as Ex.B9 and subsequently a Sale Deed was executed in their favour on
07.04.2003 by the first defendant, marked as Ex.B10. By virtue of this
Sale Deed, they became the absolute owner of the suit property. Only on
coming to know of the same, the plaintiff had fabricated a sale agreement
to defeat the rights of the defendants. Accordingly, the second and third
defendants also sought for the dismissal of the suit.
7. Both the Courts below on considering the facts and circumstance
of the case and after appreciating the oral and documentary evidence,
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S.A.No.186 of 2014
concurrently held against the plaintiff and dismissed the suit. Aggrieved
by the same, the plaintiff has filed this Second Appeal.
8. Heard Dr. P.Jagadeesan, learned counsel appearing for the
appellants and Ms.R.Meenal, learned counsel appearing for the
respondents. This Court also carefully perused the materials available on
record and the findings rendered by both the Courts below.
9. Before considering the findings of both the Courts below, this
Court has to necessarily extract the issues framed by the Trial Court and
the points for determination framed by the Lower Appellate Court. This is
done in order to show that both the Courts below have thoroughly gone
into every issue that was raised by both sides and rendered their findings.
10. The issues that were framed by Trial Court were
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2. Vw;wij Mw;Wf ghpfhuj;ij thjp bgw
chpatuh?
3. khw;W ghpfhukhd jhthj;bjhifia
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S.A.No.186 of 2014
gpujpthjpfsplkpUe;J tR{y; bra;J bfhs;s
thjp chpatuh?
4. ntW vd;d ghpfhuk; bgw thjp chpath;?
11. The points for determination framed by the Appellate Court
were
1. Whether the agreement for sale dated 13.09.2003 is true
and supported by valid consideration?
2. If the agreement for sale is true, whether the plaintiff was
ready and willing to perform his part of contract?
3. Whether the suit filed by the plaintiff for specific
performance is barred by limitation?
4. Whether the defendants 2 and 3are bonafide purchasers of
the suit property? And the Sale deed entered in favour of
them is valid?
5. Whether the plaintiff is entitled for suit for specific
performance?
6. Whether the plaintiff is entitled for the alternative relief of
recovery of advance money?
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S.A.No.186 of 2014
7. What other relief the plaintiff is entitled to?
12. In the present case, the first defendant had admitted the
execution of Ex.A2 and had denied the execution of Ex.A1. In view of the
same, expert opinion was sought for and it was found that the signature
and the thumb impression found in both the documents tallied. In view of
the same, a finding was rendered to the effect that the first defendant had
executed the sale agreement and it was also substantiated by examining
P.W.1 to P.W.3.
13. The next issue that was gone into by both the Courts below was
the circumstances surrounding the execution of Ex.A1. The Courts below
took into consideration the Mortgage Deed that was executed by the first
defendant in favour of the plaintiff on the very same day on which the
agreement of sale was also executed. No time limit was fixed under
Ex.A1 document. Surprisingly there was no mention about Ex.A1 in the
legal notice that was issued by the plaintiff and which was marked as
Ex.B2. Even during the earlier legal proceedings between the plaintiff and
the first defendant in OP No.1 of 2000 and EP No.40 of 2000, marked as
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S.A.No.186 of 2014
Exs.B4 to B8, there was no mention about the existence of Ex.A1. For the
first time in the suit, the plaintiff makes a mention about Ex.A1. This was
taken into consideration by both the Courts below and a finding was
rendered to the effect that the agreement of sale was fabricated later and
put against the first defendant.
14. Both the Courts below also took note of the stand taken by the
plaintiff to the effect that the stamp papers for the agreement of sale was
purchased by the first defendant and the agreement was also prepared by
the first defendant. To disprove this stand taken by the plaintiff, the stamp
vendor was examined as P.W.4 and Ex.X2 was marked. It was seen that
the stamp paper was purchased by the plaintiff and it was the plaintiff who
had put the signature and received the stamp papers. The signature of the
plaintiff was also marked as Ex.X3.
15. On a cumulative reading of the facts and circumstances of the
case and on considering the evidence available on record, both the Courts
below found that Ex.A1 had come about under suspicious circumstances
and it was prepared by the plaintiff well after the first defendant took steps
to redeem the mortgage. Both the Courts below also took into
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S.A.No.186 of 2014
consideration the fact that the agreement of sale was dated 13.09.1993 and
the suit came to be filed after 10 years on 07.04.2003 and hence this
exorbitant delay was also put against the plaintiff.
16. In the considered view of this Court, the findings rendered by
both the Courts below was based on proper appreciation of the oral and
documentary evidence and this Court does not find any perversity in those
findings which warrants the interference of this Court. In any event, this
Court does not find any substantial question of law involved in this
Second Appeal.
17. In the result, the Second Appeal is dismissed. Considering the
facts and circumstances of the case, there shall be no order as to costs.
Consequently, the connected miscellaneous petition is closed.
20.04.2022
Index : Yes/No
Internet : Yes/No
Speaking Order / Non Speaking Order
jv
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S.A.No.186 of 2014
To
1. The I Additional District Judge,
Salem.
2. The Subordinate Judge,
Sankari.
3. The Section Officer
VR Section,
High Court Madras.
https://www.mhc.tn.gov.in/judis
S.A.No.186 of 2014
N. ANAND VENKATESH, J.
jv
Second Appeal No.186 of 2014
and MP No.1 of 2014
20.04.2022
https://www.mhc.tn.gov.in/judis
