Madras High Court
Radhakrishanan vs Gunasekar on 17 April, 2023
S.A(MD).No.419 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.419 of 2022
and C.M.P(MD)No.5161 of 2022
1.Radhakrishanan
2.Deiveeswaran .... Appellants/Respondents/Defendants
Vs.
Gunasekar ... Respondent/Appellant/Plaintiff
Prayer : Second Appeal is filed under Section 100 of Code of Civil
Procedure, against the judgment and decree dated 11.04.2019 passed in
A.S.No.12 of 2015 on the file of the III Additional District Judge,
Tiruchirappalli, confirming the judgment and decree dated 06.11.2012
passed in O.S.No.116 of 2004 on the file of the I Additional Sub Judge,
Tiruchirapppalli.
For Appellants : Mr.R.S.Sivaram
For Respondent : Mr.K.S.Kathiravan
JUDGMENT
This Second Appeal has been filed challenging the judgment and
decree dated 11.04.2019 of the lower Appellate Court namely,
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S.A(MD).No.419 of 2022
III Additional District Court, Tiruchirappalli, passed in A.S.No.12 of 2015.
The appellants are the defendants in the suit in O.S.No.116 of 2004 on the
file of the I Additional Sub Court, Tiruchirappalli. The respondent is the
plaintiff in the said suit. In the forthcoming paragraphs, the parties are
described as per their litigative status in the suit.
2. The suit was filed for specific performance of an agreement of sale
entered into between the plaintiff and the defendants. The defendants, as
seen from the written statement filed by the defendants, contended that the
suit schedule property is not owned by them but by their mother and
therefore, the plaintiff is not entitled to seek specific performance of the
agreement of sale from them. The suit was filed for specific performance
and in the alternate for refund of advance amount together with interest.
3. The suit was partly decreed by the trial court namely, the I
Additional Sub Court, Tiruchirappalli in its judgment and decree dated
06.11.2012 passed in O.S.No.116 of 2004 by granting alternate relief of
refund of advance amount together with interest to the plaintiff. However,
the trial court denied the relief of specific performance to the plaintiff.
Aggrieved by the denial of specific performance, the plaintiff filed a first
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S.A(MD).No.419 of 2022
appeal before the lower Appellate Court namely, the III Additional District
Court, Tiruchirappalli in A.S.No.12 of 2015. The lower Appellate Court
reversed the findings of the trial court by granting the relief of specific
performance to the plaintiff by giving the following reasons:
a) The defendants have not specifically pleaded the hardship they
would face if the sale agreement is executed in favour of the plaintiff.
b) The defendants have not produced any documentary evidence to
substantiate their claim that their mother is the owner of the suit schedule
property and that all the legal heirs of the deceased mother have not been
impleaded as the party defendants in the suit.
c) Based on the agreement of sale standing in favour of the plaintiff,
the lower Appellate Court has reversed the findings of the trial court by
granting the relief of specific performance.
d) There were no pleadings in the written statement that the mother of
the defendants is the absolute owner of the suit schedule property and after
her death, her legal heirs became the absolute owners.
4. Admittedly, no parent title deed was filed by the plaintiff before the
trial court to substantiate his claim that the defendants alone are the
exclusive owners of the suit schedule property and therefore, they have right
to convey the same to the plaintiff as they have a marketable title over the
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S.A(MD).No.419 of 2022
same.
5. During the cross-examination of the plaintiff's witness (P.W.2),
hasadmitted that prior to entering into the agreement of sale (Ex.A.1) with
the defendants, he had not obtained encumbrance certificate and has also
not seen the original parent document. Admittedly, in the plaint, the plaintiff
has not pleaded as to how he traces title of the suit schedule property by the
defendants. The only documents filed by the plaintiff before the trial court
are as follows:
S.No Date Exhibits Nature
1 15.08.2003 A.1 Sale agreement
between the plaintiff
and the defendants
2. 05.01.2004 A.2 Legal notice with
postal cover
3. Nil A.3 Returned cover
As a prudent purchaser, the plaintiff ought to have obtained encumbrance
certificate for the suit schedule property and should have satisfied himself
with regard to the title of the suit schedule property of the defendants and
only thereafter, he ought to have entered into an agreement of sale with the
defendants. It is to be noted that no parent documents of the title deeds have
been filed by the plaintiff and the encumbrance certificate has also not been
filed by him to prove that the defendants are the absolute owners of the suit
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S.A(MD).No.419 of 2022
schedule property and there are no other co-owners apart from the
defendants. The defendants have contended that their mother is the owner of
the suit schedule property while that be so, the plaintiff ought to have
produced the documentary evidence to prove that the defendants are having
the title to convey the suit schedule property to the plaintiff under the
subject agreement of sale. The trial court has rightly granted the alternate
relief of refund of advance amount together with interest to the plaintiff and
has rightly denied the relief of specific performance. The defendants have
admitted the receipt of the advance amount as per the agreement of sale
(Ex.A.1) and therefore, they are liable to refund the same together with
interest as rightly held by the trial court in its judgment and decree.
5. The discretion to grant the relief of specific performance by the
lower Appellate Court namely, the III Additional District Court,
Tiruchirappalli in its judgment and decree dated 11.04.2019 in A.S.No.12 of
2015 by reversing the findings of the trial court has not been exercised on
sound judicial principles in view of the fact that the plaintiff has not been
able to establish through oral and documentary evidence that the defendants
alone are the absolute owners of the suit schedule property. The plaintiff in
his oral evidence through P.W.2 has admitted that prior to entering into the
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S.A(MD).No.419 of 2022
agreement of sale (Ex.A.1) with the defendants, he had not obtained
encumbrance certificate and he has also not seen the original parent
documents by which the defendants have set the claim title over the suit
schedule property. When the defendants have pleaded in their written
statement that they have never entered into the subject agreement of sale
(Ex.A.1) with the plaintiffs, necessarily the plaintiff ought to have produced
the other documentary evidence apart from the agreement of sale (Ex.A.1)
and the legal notice (Ex.A.2) and the returned cover (Ex.A.3) to substantiate
their claim that the defendants are the absolute owners of the suit schedule
property. They had in fact entered into an agreement of sale (Ex.A.1) with
the plaintiff and the plaintiff was always ready and willing to perform his
part of obligation as per the agreement of sale (Ex.A.1) having failed to
produce any other documents apart from the sale agreement and the legal
notice. Therefore, this Court is of the considered view that the lower
Appellate Court has exercised its discretion arbitrarily and the said
discretion exercised by the lower Appellate is not guided by sound judicial
principles. A party claiming enforcement of agreement of sale must
necessarily produce the parent documents and an encumbrance certificate to
prove that the defendants are the absolute owners of the suit schedule
property that too when the defendants in their written statement have
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S.A(MD).No.419 of 2022
specifically pleaded that they never entered into an agreement of sale
(Ex.A.1) with the plaintiff. Since the amount received by the defendants
under the agreement of sale (Ex.A.1) has been admitted but the defendants
having denied the execution of the agreement of sale (Ex.A1), this Court is
of the considered view that the trial court was right in granting the alternate
relief of refund of advance amount together with interest instead of specific
performance of the agreement of sale in favour of the plaintiff. The lower
Appellate Court has erroneously reversed the findings of the trial court by
granting the relief of specific performance in favour of the plaintiff.
6. This Court is admitting the Second Appeal on the following
substantial question of law:
''Whether the lower Appellate Court has exercised its discretion
correctly by granting the relief of specific performance in favour of
the plaintiff?''
7. In view of the reasons stated supra, the substantial question of law
has to be answered in favour of the appellants/defendants by holding that
the lower Appellate Court has erroneously exercised its discretionary power
by granting the relief of specific performance in favour of the plaintiff in
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S.A(MD).No.419 of 2022
view of the fact that as a prudent purchaser, the plaintiff has miserably
failed to obtain encumbrance certificate and obtained copies of the parent
document to satisfy himself that the appellants/defendants are the only
owners of the suit schedule property.
8. For the foregoing reasons, the judgment and decree of the lower
Appellate Court namely, the III Additional District Court, Tiruchirappalli in
its judgment and decree dated 11.04.2019 in A.S.No.12 of 2015 is hereby
set aside and the Second Appeal is allowed by confirming the judgment and
decree of the trial court namely, the I Additional Sub Court, Tiruchirappalli
in O.S.No.116 of 2004 dated 06.11.2012. No costs. Consequently,
connected miscellaneous petition is closed.
17.04.2023
Index : Yes/No
Internet: Yes/No
CM
To,
1.The III Additional District Judge, Tiruchirappalli
2. The I Additional Sub Judge, Tiruchirapppalli.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD).No.419 of 2022
ABDUL QUDDHOSE, J.
CM
S.A.(MD)No.419 of 2022
and C.M.P(MD)No.5161 of 2022
17.04.2023
https://www.mhc.tn.gov.in/judis
