Madras High Court
Rajeshwaran (Died) vs Muthammal on 12 June, 2023
S.A(MD).No.622 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.622 of 2020
and C.M.P(MD)No.6606 of 2020
Rajeshwaran (Died) .... Appellant/Appellant/Plaintiff
2.R.Lakshmi
3.Pechiyappan ... Legal Heirs of the deceased Appellant
Vs.
Muthammal ... Respondent/Respondent/Defendant
Prayer : Second Appeal is filed under Section 100 of Code of Civil
Procedure, against the judgment and decree dated 24.09.2019 passed in
A.S.No.55 of 2018 on the file of the Additional District Sessions Court
(Fast Track Court), Tenkasi, confirming the judgment and decree dated
22.02.2018 passed in O.S. No.190 of 2012 on the file of the Additional
Sub-Court, Tenkasi.
For Appellants : Mr.H.Arumugam
For Respondent : Mr.P.Vinoth
for Mr.S.Prasanth
JUDGMENT
This Second Appeal has been filed challenging the concurrent
findings of the courts below. The plaintiff in the suit in O.S.No.190 of 2012
on the file of the Additional Subordinate Court, Tenkasi, is the appellant
https://www.mhc.tn.gov.in/judis
S.A(MD).No.622 of 2020
herein. After filing of this Second Appeal, the appellant/plaintiff died. The
legal heirs of the deceased appellant have been brought on record.
2. In the forthcoming paragraphs, the parties are described as per their
litigative status in the suit.
3. The plaintiff had filed the said suit for specific performance of an
agreement of sale. The respondent is the defendant in the suit, who was the
owner of the suit schedule property in respect of which, the appellant claims
that there is an agreement of sale, in which, the respondent had agreed to
sell the suit schedule property to him.
4. However, as seen from the written statement filed by the
respondent in the suit, he has pleaded that the alleged agreement of sale is a
forged document.
5. The trial court, namely, the Additional Subordinate Court, Tenkasi,
based on the pleadings in O.S.No.190 of 2012, framed the issues as to
whether the plaintiff is entitled for the relief of specific performance as
prayed for in the plaint.
https://www.mhc.tn.gov.in/judis
S.A(MD).No.622 of 2020
6.i) Before the trial court, the plaintiff filed three documents, which
are marked as Ex.A.1 to Ex.A.3, which included the alleged agreement of
sale dated 14.05.2010 allegedly entered into between the plaintiff and the
defendant, which was marked as Ex.A.1; Ex.A.2 is the notice sent by the
plaintiff to the defendant calling upon the defendant to execute a sale deed
in his favour; Ex.A.3 is the returned cover dated 04.08.2012 by which
notice dated 30.07.2012 sent by the plaintiff to the defendant has been
returned unserved. On the side of the plaintiff, two witnesses were
examined namely, the plaintiff himself as P.W.1 and another person by
name Babu Nagoormeeran as P.W.2.
6.ii) On the side of the defendant, two documents were filed, which
were marked as Ex.B.1 and Ex.B.2. Ex.B.1 is the certified copy of the
settlement deed, which was executed by the defendant in favour of his son
Kailasam dated 10.11.2010; Ex.B.2 is the sale deed dated 03.09.2012
executed by Kailasam in favour of Syed Sulaiman for the suit schedule
property.
7. As seen from the pleadings, oral and documentary evidence, the
defendant has categorically pleaded that the alleged sale agreement dated
https://www.mhc.tn.gov.in/judis
S.A(MD).No.622 of 2020
14.05.2010 (Ex.A.1) is a forged document. However, the plaintiff claimed
that the defendant has received a part sale consideration of Rs.4,00,000/-
(Rupees Four Lakhs only) by entering into the agreement of sale (Ex.A.1)
but failed to execute a sale deed by receiving the balance sale consideration.
8. The defendant has pleaded in his written statement that he has not
received any sale consideration from the plaintiff and he never entered into
the sale agreement dated 14.05.2010 (Ex.A.1) with the plaintiff. The
defendant is an illiterate person and he is alleged to have affixed her thumb
impression in the sale agreement dated 14.05.2010(Ex.A.1).
9. When the defendant has disputed the execution of the sale
agreement dated 14.05.2010 (Ex.A.1) in favour of the plaintiff and has
categorically claimed that the said agreement is a forged document, the
plaintiff ought to have sent the document for expert opinion with regard to
the thumb impression of the defendant found therein. Admittedly, the
plaintiff has not sent the document for an expert opinion under the
provisions of Section 45 of the Indian Evidence Act though the said
application filed by the plaintiff was allowed by the trial court.
https://www.mhc.tn.gov.in/judis
S.A(MD).No.622 of 2020
10. The learned counsel for the appellant/plaintiff would contend that
since the defendant did not co-operate in producing the contemporaneous
document containing her thumb impression or did not give her specimen
signature proof, the plaintiff was not in a position to implement the order
passed under Section 45 of the Indian Evidence Act.
11. However, the plaintiff has not produced any documentary
evidence before this Court to prove that the defendant did not co-operate
before the trial court for sending the disputed agreement of sale dated
14.05.2010 (Ex.A.1) along with the contemporaneous document in which
the thumb impression of the defendant is found for implementation of the
order passed under Section 45 of the Indian Evidence Act. The plaintiff has
filed only three documents before the trial court namely, the disputed
agreement of sale dated 14.05.2010(Ex.A.1) and the notice dated
30.07.2012 sent by him calling upon the defendant to execute the sale deed
as per the agreement of sale dated 14.05.2010 (Ex.A.1) and the returned
cover dated 04.08.2012 which is marked as Ex.A.3. As seen from the
evidence available on record, the plaintiff has not been able to prove that the
agreement of sale dated 14.05.2010 (Ex.A.1) is a genuine agreement. When
the defendant has categorically pleaded that the agreement of sale dated
https://www.mhc.tn.gov.in/judis
S.A(MD).No.622 of 2020
14.05.2010 (Ex.A.1) is a forged document, the initial burden of proof is on
the plaintiff as per the provisions of Section 101 of the Indian Evidence Act
to prove through oral and documentary evidence that the said agreement of
sale (Ex.A.1) is a genuine document.
12. Having failed to obtain an expert opinion by comparing the thumb
impression of the defendant as found in Ex.A.1 agreement of sale with the
contemporaneous document of the defendant containing her thumb
impression, this Court is of the considered view that both the courts below
have rightly held that the alleged agreement of sale dated 14.05.2010
(Ex.A.1) is a forged document. Further, this Court is of the considered view
that the relief of specific performance is a discretionary relief. The only
criteria that has to be seen by this Court is whether the discretion exercised
by the courts below were guided by judicial principles or not. When the
plaintiff has miserably failed to prove that the agreement of sale dated
14.05.2010 (Ex.A.1) is a valid agreement of sale through oral and
documentary evidence and by assistance of an expert opinion, this Court is
of the considered view that both the courts below have exercised the
discretion properly by refusing to grant the relief of specific performance in
favour of the plaintiff.
https://www.mhc.tn.gov.in/judis
S.A(MD).No.622 of 2020
13. Both the courts below have also taken into consideration the fact
that the subsequent purchaser of the suit schedule property had also filed a
suit for declaration to declare that the suit schedule property is absolutely
owned by him. The said suit namely O.S.No.19 of 2013 on the file of the
very same trial court was decreed in favour of the said subsequent
purchaser. The appellant/plaintiff was also a party to the said suit and no
appeal was filed aggrieved by the judgment and decree passed in favour of
the subsequent purchaser in O.S.No.19 of 2013 and the findings in the said
judgment have attained finality. Therefore, the courts below have held that
the plaintiff does not have any right to seek for specific performance of the
alleged agreement of sale dated 14.05.2010 (Ex.A.1).
14. This Court has given careful consideration to the findings of the
courts below. After giving due consideration to the same, this Court finds
that there is no substantial question of law involved in this Second Appeal.
The substantial questions of law raised by the appellant/plaintiff in the
grounds of appeal have already been considered by the courts below only in
accordance with law and no further interference is required by this Court
under Section 100 C.P.C. There are no debatable issues of fact or law
involved for further consideration by this Court under Section 100 C.P.C.
https://www.mhc.tn.gov.in/judis
S.A(MD).No.622 of 2020
15. For the foregoing reasons, there is no merit in this Second Appeal.
Accordingly, this Second Appeal is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
12.06.2023
Index : Yes/No
Internet: Yes/No
CM
To
1.The Additional District Sessions Court (Fast Track Court), Tenkasi
2. The Additional Sub-Court, Tenkasi.
3.The Section Officer,
VR Section, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD).No.622 of 2020
ABDUL QUDDHOSE, J.
CM
S.A.(MD)No.622 of 2020
and C.M.P(MD)No.6606 of 2020
12.06.2023
https://www.mhc.tn.gov.in/judis
