Madras High Court
Kalavathi vs Nirmala on 23 March, 2022
S.A.Nos. 409 & 412 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.03.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
S.A.Nos. 409 & 412 of 2014
and
M.P.No. 1 of 2014
S.A.No. 409 of 2014
1. Kalavathi
2. Moorthi ... Appellants
Vs
Nirmala ... Respondent
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside
the Judgment and Decree dated 03.02.2011 in A.S.No.3 of 2010 on the
file of the Subordinate Judge, Krishnagiri and confirming the Judgment
and Decree dated 31.08.2009 in O.S.No.129 of 2002 on the file of the
District Munsif, Dharmapuri.
For Appellants : Mr.G.Mohammed Aseef
For Respondent : Mr.P.Valliappan
for P.V.Law Associates.
S.A.No. 412 of 2014
Moorthi ... Appellant
Vs
https://www.mhc.tn.gov.in/judis
S.A.Nos. 409 & 412 of 2014
1. Nirmala
2. Annadurai ... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside
the Judgment and Decree dated 03.02.2011 in A.S.No.15 of 2010 on the
file of the Subordinate Judge, Krishnagiri and confirming the Judgment
and Decree dated 31.08.2009 in O.S.No.132 of 2004 on the file of the
District Munsif, Dharmapuri.
For Appellant : Mr.G.Mohammed Aseef
For Respondents : Mr.P.Valliappan
for P.V.Law Associates for R1
R2 - died
COMMON JUDGMENT
The issue involved in both the second appeals are common and
hence it was taken up together, heard and disposed of through this
common Judgment.
2. The defendants in O.S.No.129 of 2002 and the plaintiff in
O.S.No.132 of 2004 are the appellants in both these second appeals.
O.S.No.129 of 2002 was filed by the plaintiff therein seeking for the
relief of specific performance and for permanent injunction. O.S.No.132
of 2004 was filed by the appellant seeking for the relief of declaration of
title and for permanent injunction.
https://www.mhc.tn.gov.in/judis
S.A.Nos. 409 & 412 of 2014
3. For the sake of convenience, the rank of the parties shall be
identified as per the rank assigned in O.S.No.129 of 2002, which is the
subject matter in S.A.No.409 of 2014.
4. The case of the plaintiff is that the first defendant is the
absolute owner of the suit property and she entered into an agreement of
sale dated 25.05.2002, marked as Ex.A1, whereby the first defendant
agreed to sell the suit property for a total sale consideration of
Rs.29,500/-. On the date of agreement, an advance of Rs.15,000/- was
also paid by the plaintiff to the first defendant. It was further agreed that
the remaining balance amount of Rs.14,500/- will be paid by the plaintiff
to the first defendant within a period of three months and the plaintiff
will get the sale deed executed in her favour. The further case of the
plaintiff is that the possession of the property was also handed over to
her. The property in question is a vacant land.
5. It is stated that the plaintiff made the balance amount of
Rs.14,500/- ready during the first week of June 2002 and she called upon
the first defendant to receive the balance amount and executed the sale
deed in her favour. However, the plaintiff started getting evasive replies
https://www.mhc.tn.gov.in/judis
S.A.Nos. 409 & 412 of 2014
and hence a legal notice dated 15.06.2002, marked as Ex.A2, was issued
to the first defendant calling upon the first defendant to receive the
balance sale consideration and execute the sale deed in favour of the
plaintiff. A reply notice dated 20.06.2002 was issued by the first
defendant, marked as Ex.A4. It is from this reply notice, the plaintiff
came to know that certain documents have been created by the first
defendant in favour of the second defendant in order to defeat the rights
of the plaintiff. Left with no other option, the suit came to be filed
seeking for the relief of specific performance and for permanent
injunction.
6. The case of the second defendant in the suit filed in
O.S.No.132 of 2004 is that he had entered into an agreement of sale with
the first defendant on 27.02.2002, marked as Ex.B1 and this agreement
of sale translated itself into a registered sale deed dated 21.04.2002,
marked as Ex.B2. The further case of the second defendant was that
there was some mistake in the sale deed and it was corrected through
rectification deed dated 03.07.2002, marked as Ex.B3. Thereafter, the
name of the second defendant is also mutated in the revenue records and
to substantiate the same, the proceedings of the Tahsildar, dated
https://www.mhc.tn.gov.in/judis
S.A.Nos. 409 & 412 of 2014
06.08.2002 was also filed and it was marked as Ex.B4. The second
defendant, therefore, claimed that he has became the absolute owner of
the suit property and is in possession and enjoyment of the same. The
grievance of the second defendant is that the plaintiff was attempting to
interfere with the possession and enjoyment of the property and created a
cloud over the title. Hence, he sought for the relief of declaration of title
and for permanent injunction in his suit. The same stand was taken by
the second defendant even in the written statement filed in O.S.No.129 of
2002.
7. The first defendant took a stand that she had borrowed loan
from the plaintiff and towards the said loan, she had signed in some
blank papers and forms. The first defendant took a further defence that
the loan amount was discharged and inspite of the same, the signed
papers and forms were not handed over by the plaintiff. Therefore,
according to the first defendant, the plaintiff had misused the blank
papers and had created the sale agreement. The first defendant also
explained about the agreement of sale entered into with the second
defendant and the sale deed that was executed in favour of the second
defendant. Accordingly, the first defendant had sought for the dismissal
of the suit.
https://www.mhc.tn.gov.in/judis
S.A.Nos. 409 & 412 of 2014
8. Considering the fact that both the suits are connected with each
other and the parties involved are the same and the suit property is also
the same, a joint trial was conducted. Both the Courts below, on
considering the facts and circumstances of the case and after appreciating
the oral and documentary evidence, concurrently found that the plaintiff
in O.S.No.129 of 2002 is entitled for the relief sought for by her and
decreed the said suit and the suit filed by the second defendant in
O.S.No.132 of 2004 was dismissed. Aggrieved by the same, these
second appeals have been filed before this Court.
9. Heard, Mr. G.Mohammed Aseef, learned counsel for the
appellants and Mr.P.Valliappan, learned counsel for the respondent.
This Court also considered the materials available on record and the
findings of both the Courts below.
10. While considering the agreement of sale executed in favour of
the plaintiff, both the Courts, on appreciation of evidence, found that the
sale agreement is a genuine document. In order to reach such a
conclusion, both the Courts below relied upon the evidence of P.Ws.1
and 2 and also the evidence of D.W.1. Both the Courts found that the
https://www.mhc.tn.gov.in/judis
S.A.Nos. 409 & 412 of 2014
first defendant miserably failed to prove that the plaintiff had misused the
documents given at the time of taking loan from the first defendant.
11. Both the Courts below also considered the agreement that was
entered into by the second defendant with the first defendant. It was
found that the second defendant was none other than the brother-in-law
of the first defendant. Even though, Ex.B1 was dated 27.02.2002, it was
written in a stamp paper, which was purchased only on 03.04.2002.
Hence, Ex.B1 was found to be a created document. Insofar as the sale
deed is concerned, even though the date of execution was mentioned as
21.04.2002 in the document, the actual registration had taken place only
on 06.06.2002. On a combined reading of the facts and circumstances of
the case, both the Courts found that Exs.B1 & B2 have been created only
to defeat the rights of the plaintiff, who had acquired a right through the
agreement of sale dated 25.05.2002. In view of the same, both the
Courts below, gave a finding that Exs.B1 & B2 are invalid documents
and hence the second defendant had failed to prove his title over the
property.
https://www.mhc.tn.gov.in/judis
S.A.Nos. 409 & 412 of 2014
12. Both the Courts below also independently considered the issue
of readiness and willingness of the plaintiff since she had sought for the
relief of specific performance. While considering the same, it was found
that the plaintiff had proved her readiness and willingness and she had
come forward to pay the balance sale consideration well on time and
inspite of the same, the first defendant failed to execute the sale deed in
her favour. Therefore, both the Courts found the plaintiff to be entitled
for the relief of specific performance.
13. Insofar as the question of possession is concerned, both the
Courts found that the property in question is a vacant site. It is now well
settled that insofar as a vacant site is concerned, the possession runs with
the title. Hence, both the Courts held that since the title did not pass on
to the second defendant, the second defendant is not entitled to disturb
the possession of the plaintiff. Accordingly, the relief of permanent
injunction sought for by the plaintiff was also granted in her favour and
the second defendant was restrained from interfering with the possession
and enjoyment of the plaintiff.
https://www.mhc.tn.gov.in/judis
S.A.Nos. 409 & 412 of 2014
14. In the considered view of this Court, the findings rendered by
both the Courts below was as a result of appreciation of oral and
documentary evidence and this Court does not find any perversity in
those findings. In any event, no substantial questions of law are involved
in these second appeals.
15. In the result, both the second appeals are dismissed.
Consequently, connected miscellaneous petition is closed. Considering
the facts and circumstances of the case, there will be no order as to costs.
23.03.2022
Index :Yes/No
Internet :Yes/No
Lpp
To
1.The Subordinate Judge, Krishnagiri.
2.The District Munsif, Dharmapuri.
https://www.mhc.tn.gov.in/judis
S.A.Nos. 409 & 412 of 2014
N. ANAND VENKATESH, J.
Lpp
S.A.Nos.409 & 412 of 2014
and
M.P.No. 1 of 2014
23.03.2022
https://www.mhc.tn.gov.in/judis
