P.Alamelu vs Somaskandan
2024 Latest Caselaw 154 Mad

Citation : 2024 Latest Caselaw 154 Mad
Judgement Date : 3 January, 2024

Madras High Court

P.Alamelu vs Somaskandan on 3 January, 2024

Author: P.T.Asha

Bench: P.T.Asha

                                                                                Rev.Appl.No.48 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED :03.01.2024

                                                          CORAM :

                                      THE HONOURABLE MS.JUSTICE P.T.ASHA

                                                   Rev.A.No.48 of 2023
                                                           in
                                                   S.A.No.760 of 2022


                     P.Alamelu                                                 ...Applicant

                                                             Vs.

                     1.           Somaskandan
                     2.           Shanmugavel                                  ...Respondents

                     PRAYER: Review Application filed under order XLVII Rule 1 r/w
                     Section 114 of the Civil Procedure Code against the order passed in
                     S.A.No.760 of 2022 dated 15.09.2022.


                                       For Applicant        : Mr.P.Vijendran

                                       For Respondents      : No appearance

                                                           ORDER

The applicant seeks to review the judgment passed by this

Court on 15.09.2022 in S.A.No.760 of 2022. The only ground on

which the applicant seeks to review the above second appeal

judgment is that the ground of the Limitation Act is not applicable https://www.mhc.tn.gov.in/judis

to the Specific Relief Act and that the dismissal of the second

appeal on the ground that the plaintiff had approached the Court 15

years after the oral partition and therefore, the suit is barred by

limitation, is errorneous.

2. It is, therefore, necessary to briefly touch upon the facts

of the case.

FACTS OF THE CASE:

2.1. The plaintiff, who is the appellant and the review

applicant herein, had filed a suit for specific performance

contending that she had entered into an oral agreement in respect of

the suit schedule property and that sale consideration fixed was a

sum of Rs.60,000/- (Rupees Sixty Thousand only). The said sum

was paid and possession was handed over to the plaintiff. The

plaintiff would plead that 15 years prior to the institution of the

suit, she had entered into an oral agreement with the first defendant

to purchase the suit property for a total sale consideration of sum of

Rs.60,000/- (Rupees Sixty Thousand only) and that on the said https://www.mhc.tn.gov.in/judis

date, the entire amount was paid and she has been put in possession

of the suit schedule property.

2.2. The plaintiff would further submit that in the month of

August 2009, she had approached the first defendant to execute and

register the sale deed on 10.08.2009. On the said date, she had

purchased the stamp papers and prepared the sale deed as

instructed by the first defendant and it was also executed and

attested by the first defendant. However, the first defendant failed

to appear before the Sub Registrar to get the sale deed registered

and she kept postponing the same. Thereafter, it appears that the

first defendant had created a sale deed dated 17.05.2012 in favour

of the second defendant and sold the first item of the suit property

to the second defendant.

2.3. The plaintiff would further submit that she is in

possession of the property pursuant to the oral agreement and she is

entitled to the benefit of Section 53-A of the Transfer of Property

Act.

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

2.4. The first defendant filed a written statement inter alia

denying the oral agreement and receipt of the money. He had

further submitted that the signature in the alleged sale deed dated

10.08.2009 is not his signature. He had also denied the claim of the

plaintiff that she was in possession of the suit property. It is also the

contention of the first defendant that the first item of the property

was in the possession of the second defendant to whom it was sold

and the second item of the suit property continued to be in

possession of the first defendant.

TRIAL COURT and LOWER APPELLATE COURT:

3. The learned District Munsif had decreed the suit,

against which, the defendant had filed an appeal in A.S.No.24 of

2016 and the lower Appellate Court, on perusing the evidence, had

allowed the appeal and set aside the decree of the Trial Court.

4. Challenging the same, the plaintiff had filed a second

appeal in S.A.No.760 of 2022 on the file of this Court.

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

DISCUSSION:

5. The arguments that were advanced by the learned

counsel for the appellant were on the ground that the plaintiff had

entered into an oral agreement of sale and she has been put in

possession pursuant to this agreement. The sale deed was executed

by the first defendant and that he had not co-operated in its

registration.

6. The first defendant had denied the signature in the sale

deed dated 10.08.2009 and had also denied the very oral agreement

of the sale and receipt of sale consideration. The plaintiff has failed

to prove the same. Further, according to the plaintiff, the oral

agreement of sale and the payment of the entire sale consideration

had taken place 15 years prior to the institution of the suit. There is

no explanation as to why the plaintiff has kept quiet for these 15

years.

7. Even according to the plaintiff's version, the plaintiff

has called the defendant to execute and register the sale deed only https://www.mhc.tn.gov.in/judis

on 10.08.2009. The execution of this document has been denied by

the defendant, further payment of the sale consideration has not

been proved. The plaintiff had examined P.W.3 who is stated to be

the attestor of Ex.A1 – sale deed. The lower Appellate Court has

clearly found that the statement given by the attesting witness with

reference to the sale consideration fixed and the payment is totally

contrary to the pleading of the plaintiff, which, by itself would

disprove the very allegation of the plaintiff.

8. The plaintiff had contended that the total sale

consideration fixed was Rs.60,000/- (Rupees Sixty Thousand only)

and this amount had been paid at the time of the oral agreement.

However, P.W.2 would state that under the sale deed dated

10.08.2009, the total sale consideration was fixed as Rs.75,000/-

(Rupees Seventy Five Thousand only) and Rs.35,000/- (Rupees

Thirty Five Thousand only) has been paid on the said date. The

lower Appellate Court had taken note of this contradiction. This

Court in the judgment under Review has concurred with this

finding.

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

9. If the appellant/ plaintiff is aggrieved by this Court's

finding in the second appeal with reference to limitation, the

remedy is not by filing a review application. A review would lie

only if there is an error apparent on the face of record or where a