Madras High Court
Jesudass vs Baby on 28 November, 2023
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.841 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.11.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.841 of 2023
and
C.M.P.No.26711 of 2023
1.Jesudass
2.Marthal … Appellants
Vs.
Baby
. . . Respondent
Prayer:- Second Appeal is filed under Section 100 of C.P.C against
the Judgement and Decree dated 24.01.2020 passed by the learned
Subordinate Judge, Coonoor, in A.S.No.19 of 2018 confirming the
judgement and decree dated 20.03.2018 passed by the learned District
Munsiff, Kotagiri in O.S.No.20 of 2013.
For Appellants : Mr.L.Mouli
For Respondent : Dr.R.Gouri, Caveator for R.1.
1/13
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S.A.No.841 of 2023
JUDGEMENT
The unsuccessful defendants before the Courts below are the
appellants before this Court. The facts of the case are set out herein
below briefly and the parties are referred to in the same ranking as
before the Trial Court.
2. It is the case of the plaintiff who had filed the suit O.S.No.20
of 2013 on the file of the District Munsif cum Judicial Magistrate,
Kothagiri, seeking (i) a declaration that the sale deed dated 28.06.2011
registered before the Sub-Registrar, Kotagiri as Document
No.1068/2011, is a sham and nominal document obtained by coercion,
misrepresentation and undue influence and is therefore null and void,
(ii) for a permanent injunction restraining the 2nd defendant from
encumbering or alienating the suit property and (iii) for an injunction
restraining the 2nd defendant from taking forcible possession of the
suit property.
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3. The plaintiff would submit that she is the absolute owner of a
Tea Estate described in the schedule to the suit. She has been in
peaceful possession and enjoyment of this property which measures
0.40 acres. Item No.1 in the schedule mentioned Tea Estate was given
to the plaintiff by her father under a registered Will deed dated
31.07.1985. Item No.2 in the schedule mentioned property was
purchased by her under a registered sale deed dated 30.11.1990. The
plaintiff has been enjoying the properties as a single unit. On
03.01.1987, the plaintiff's father had died and the Will had come into
force.
4. The plaintiff would further submit that on 20.11.1998 she had
mortgaged the properties with M/s.Vijaya Bank, Kotagiri Branch for a
loan of Rs.2,00,000/- which was borrowed by one Mrs.Visalatchi, a
close friend of the plaintiff. The plaintiff had executed the mortgage as
a guarantor.
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5. On account of her husband's ill health, she had decided to sell
the suit property to third parties to meet the medical expenses. The 1st
defendant came forward to buy the suit property and therefore a sale
agreement dated 19.11.2003 was executed between the two. The
property was agreed to be purchased for a total sale consideration of
Rs.3,10,000/- and on the date of the agreement a sum of Rs.90,000/-
was received as advance. The balance sale consideration of
Rs.2,20,000/- was to be paid within 3 months. As per the agreement,
when the 1st defendant pay the balance sale consideration fully, the
plaintiff agreed to give power of attorney in favour of the 1st
defendant. As per the agreement, possession of the schedule mentioned
properties was not given to the defendant. The plaintiff would submit
that she was always ready and willing to perform her part of the
contract. After the agreement period of 3 months was over and despite
the plaintiff's repeated demands, the 1st defendant did not pay the
balance sale consideration.
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6. However, on 08.09.2006, without paying the entire sale
consideration with the sole intent of disturbing the plaintiff's peaceful
possession and enjoyment of the property, the 1st defendant started
harassing the plaintiff by attempting to trespass into the property. A
police complaint was also lodged and the 1st defendant was warned.
7. Thereafter, the plaintiff had filed a suit O.S.No.207 of 2006 on
the file of the District Munsif, Kotagiri for an injunction restraining the
1st defendant from trespassing into the suit property. This matter was
referred to the Lok Adalat and parties entered into an agreement
wherein the 1st defendant had agreed to pay the entire loan amount to
M/s.Vijaya Bank and further agreed to pay the balance sale
consideration of Rs.60,000/- to the plaintiff. The plaintiff had agreed to
give power of attorney in favour of the 1st defendant. Both parties had
agreed to the said settlements and consequently, the suit was dismissed.
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8. However, after the disposal of the suit, the 1st defendant did
not clear the bank’s loan nor pay the balance sale consideration to the
plaintiff within the agreed period. Therefore, the plaintiff had issued a
legal notice dated 07.12.2010 to the 1st defendant and she had also
cancelled the power of attorney which she had executed pursuant to the
settlement. The 1st defendant to whom the notice was addressed, used
his influence with the postal authorities had opened the cover and noted
contents but did not receive the notice. He thereafter immediately
executed a sale deed in favour of his wife Marthal. The petitioner had
therefore come forward with the suit in question.
9. The defendants had filed a written statement denying the
plaintiff's case and submitting that in the suit O.S.No.207 of 2006 it
was held that the plaintiff had not proved her possession over the suit
schedule properties and the suit came to be dismissed. Against this,
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there was no appeal and therefore, the suit is hit by res judicata. They
would also submit that the plaintiff has no right, title or interest over
the suit schedule properties. The suit is also hit by the provisions of
Order 2 Rule 2 of C.P.C. Therefore, they had sought for the dismissal
of the suit.
10. The learned Trial Judge had framed 4 issues. On the side of
the plaintiff, the plaintiff had examined herself as P.W.1 and marked
Ex.A.1 to A.7. On the side of the defendant, 3 witnesses were
examined and Ex.B.1 to B.6 were marked. Ultimately, the learned Trial
Judge, on perusing the evidence both oral as well as documentary had
decreed the suit as prayed for.
11. Challenging the said judgment and decree the defendants had
filed A.S.No.19 of 2018 on the file of the Sub Court, Coonoor. Before
the Lower Appellate Court, the defendants had also taken out an
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interlocutory applications, namely, I.A.No.106/2018 for producing
additional evidence. The Lower Appellate Court, on considering the
arguments on either side had dismissed both the interlocutory
application as well as the appeal and thereby confirmed the judgement
and decree of the Trial Court. Aggrieved by the same, the defendants
had filed the above Second Appeal.
12. Heard, the counsel Mr.Mouli appearing on behalf of the
appellants.
13. A perusal of the records would indicate that during the
pendency of trial in an earlier suit O.S.No.207 of 2006, whose
judgement and decree have been marked as Ex.B.5 and B.6, the parties
had jointly filed a memo before the Court. In the said memo, the
plaintiff had admitted the receipt of Rs.1,80,000/- from the defendant
and the 1st defendant had agreed to pay the balance sale consideration
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of Rs.60,000/- to the plaintiff and settled the bank's debt of
Rs.3,52,000/-. On completion of these obligations, the plaintiff had
further agreed to execute the sale deed in favour of the 1st defendant.
14. It appears that the 1st defendant had not come forward to
complete his obligations under this settlement. In fact, the plaintiff had
also executed a power of attorney dated 21.12.2009 (Ex.A.2) in
keeping with the terms of the settlement. Since the 1st defendant was
not coming forward to perform his part of the contract, the plaintiff had
proceeded to cancel the power of attorney. The power has been given
to the 1st defendant only on account of the fact that he had undertaken
to settle the bank's loan and pay the balance sale consideration of
Rs.60,000/- to the plaintiff both of which have not been complied with
by them.
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15. The plaintiff has also revoked the power after issuing
necessary notice which notice has not been received by the 1st
defendant. The 1st defendant would admit that the notice has been sent
only to the address given in the plaint and where the summons in the
suit has been served. The return cover of the legal notice Ex.A.4 would
indicate that the notice was being re-sent since the addressee had not
claimed it. Hence, there is knowledge about the notice and the
revocation thereafter cannot be found fault with.
16. The 1st defendant had executed the sale deed Ex.A.3
hurriedly in favour of the 2nd defendant only after coming to learn
about the cancellation of the power. The 2nd defendant is none else
than the wife of the 1st defendant. Therefore, the sale deed executed by
the 1st defendant in favour of the 2nd defendant for a sale
consideration of Rs.3,05,200/- is a created document made with the
intent of removing the property from the hands the plaintiff and that
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too without making any payment as agreed upon. The Trial Court as
well as the Lower Appellate Court have in extenso considered the
evidence and dismissed the suit. Therefore, I see no reason to interfere
with the concurrent judgement and decree of the Courts below. Further,
the defendants have not made out any substantial question of law
which requires re-consideration of this Court. Accordingly, the Second
Appeal stands dismissed. No costs. Consequently, the connected
Miscellaneous Petition is closed.
28.11.2023
Index: Yes/No
Speaking order/non-speaking order
Neutral Citation: Yes/No
shr
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To
1. The Additional District and Session Court, Chengalpattu
2. The Sub Court, Madurantagam.
3. The Section Officer,
V.R.Section,
High Court, Madras.
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P.T.ASHA, J.,
shr
and
28.11.2023
https://www.mhc.tn.gov.in/judis
