Nanthagopal vs S.V.Sakthivel (Died)
2022 Latest Caselaw 8546 Mad

                                                                        S.A.(MD)No.434 of 2010

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED: 22.04.2022

                                                   CORAM:

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                            S.A.(MD)No.434 of 2010
                                                     and
                                             M.P.(MD)No.2 of 2010


                   Nanthagopal                       ... Appellant / Appellant / Plaintiff

                                                   -Vs-


                   1.S.V.Sakthivel (died)

                   2.N.Alagarsamy (died)          ... Respondents / Respondents / Defendants

                   3.S.Soundarapandi

                   4.S.Saravanakumar
                     (Respondents 3 & 4 are brought on record as Lrs of the deceased
                     1st respondent vide order dated 11.02.2022
                     made in C.M.P.(MD)Nos.10740, 10741 & 10742 of 2016)

                   5.A.Latha
                     (R5 is suo motu impleaded as Lrs of the deceased R2 vide
                     order dated 15.03.2022 made in S.A.(MD)No.434 of 2010)

                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the Judgment and decree dated 29.08.2008 in A.S.No.14 of
                   2007 on the file of the Fast Track Judge, Dindigul confirming the judgment
                   and decree dated 29.11.2006 in O.S.No.129 of 1999 on the file of the
                   Principal Subordinate Judge, Dindigul .
https://www.mhc.tn.gov.in/judis


                   1/5
                                                                           S.A.(MD)No.434 of 2010



                                         For Appellant     : Mr.H.Lakshmi Shankar
                                         For R3 to R5      : No appearance


                                                     JUDGMENT

The plaintiff in O.S.No.129 of 1999 on the file of the Principal Sub

Court, Dindingul is the appellant in this second appeal.

2. The suit was for specific performance. The suit property

admittedly belong to the second defendant Alagarsamy. There was an

agreement between Alagarsamy and Periyakathirammal on the one side and

the first defendant Sakthivel on the other. Pursuant to the said agreement

dated 12.11.1997, Sakthivel / D1 was authorised to plot out a larger extent

of the property and the said Periyakathirammal and Alagarsamy were to

execute the sale deeds as and when called upon to do so. The suit

agreement dated 12.11.1997 had worked well upto a point. But when it

came to selling the portion belonging to Alagarsamy, it ran into rough

weather. Unfortunately, the plaintiff / appellant herein had entered into an

agreement only with Sakthivel. He had given an advance amount of

Rs.2,00,000/- only to Sakthivel. Since Sakthivel could not execute the sale

deed, the suit for specific performance came to be filed. Sakthivel sailed

with the plaintiff and even entered the witness box as P.W.2. However, the https://www.mhc.tn.gov.in/judis

S.A.(MD)No.434 of 2010

trial court by judgment and decree dated 29.11.2006 dismissed the suit. The

same was also duly confirmed by the first appellate court vide judgment and

decree dated 29.08.2008 in A.S.No.14 of 2007. Challenging the same, this

second appeal came to be filed. During the pendency of the second appeal,

both Sakthivel as well as Alagarsamy passed away. The wife of Alagarsamy

was impleaded and service on her was effected through paper publication.

However, there is no representation on her behalf.

3. The learned counsel appearing for the appellant reiterated all the

contentions set out in the memorandum of grounds and called upon this

Court to frame the substantial question of law and admit the second appeal

and then take it up 'for disposal'.

4. There is no dispute that the appellant had entered into an

agreement with the first defendant Sakthivel to purchase the suit property.

There is again no dispute that the appellant had paid an advance amount of

Rs.2,00,000/- to Sakthivel. But the plaintiff was denied the relief of

specific performance because there was no privity of contract between the

plaintiff and the land owner. Sakthivel / first defendant was also not the

power agent of the land owner. Sakthivel had an agreement with the land

owner. In fact, Sakthivel should have filed the suit for specific https://www.mhc.tn.gov.in/judis

S.A.(MD)No.434 of 2010

performance and the appellant should have joined with him as co-plaintiff.

Instead, the plaintiff who had entered into an agreement with the agreement

holder had filed the suit for specific performance. Under Section 54 of the

Transfer of Property Act, 1882, agreement by itself will not create an

interest. Because of the aforesaid reasons, the courts below denied specific

performance. I cannot fault the said approach. No substantial question of

law arises for consideration. The second appeal is dismissed. No cost.

Consequently, connected miscellaneous petition is closed.

22.04.2022

Internet : Yes/No Index : Yes/No rmi

To

1.The Fast Track Judge, Dindigul.

2.The Principal Subordinate Judge, Dindigul.

Copy To The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis

S.A.(MD)No.434 of 2010

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.(MD)No.434 of 2010

22.04.2022

https://www.mhc.tn.gov.in/judis