Madras High Court
Naseeba vs Raman (Died) on 25 October, 2024
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A. No. 695 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.10.2024
CORAM
THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI
S.A. No.695 of 2024
and
C.M.P.No. 22505 of 2024
Naseeba ... Appellant
Versus
Raman (died)
1. Mariyammal
2. Poongodi
3. Prema
4. Suguna
5. R.Velu ... Respondents
Prayer:- Second Appeal has been filed under Section 100 C.P.C., against
the judgment and decree dated 28.06.2024 passed in A.S.No.19 of 2023 on
the file of Subordinate Judge, Pappireddipatti reversing the judgment and
decree passed in O.S.No.50 of 2012 on the file the District Munsif,
Pappireddipatti.
1/7
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S.A. No. 695 of 2024
For Appellant : Mr.C.Munusamy
JUDGEMENT
Challenging the reversal findings of the first appellate court, the
plaintiff preferred this Second Appeal. Before the trial court, she filed a suit
for specific performance directing the defendants to execute the sale deed
based on the sale agreement dated 30.05.2011. The defendants denied the
agreement as well as other terms. They contested the case and adduced their
evidence. Considering both oral and documentary evidence, the trial judge
decreed the suit in favour of plaintiff.
2. Challenging the said findings, the defendants preferred an appeal in
A.S.No.19 of 2023 before the Subordinate Court, Pappireddipatti, wherein
the first appellate judge independently analysed the facts and evidence and
on considering the same, finally held that the sale agreement was executed
in the year 2011, which is not correct, because in the year of 2011, the value
of the property was fixed only as Rs.94,000/- however, P.W.1 in her
evidence deposed that the value of the property was Rs.7,85,000/- at the
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time of entering agreement and she had paid the amount on various
occasions to the defendants, but it is totally contrary to the terms of sale
agreement. Therefore, the first appellate judge held that plaintiff has not
proved her claim and he has also observed that for the balance sale
consideration of Rs.5000/-, 11 months period was fixed, but within a
stipulated time, the plaintiff has not paid the amount and thereafter, nearly
about 7 months later, she issued a notice calling upon the defendants to
execute the sale deed, for which, the defendants have given suitable reply.
However, the evidence of P.W.1 itself shows that she was well aware of the
value of suit property at the time of sale agreement.
3. Furthermore, by relying the ratio laid down in the authority held in
AIR 2001 SC 2783 in the case of Arulappan s. Ayalya Naik, the first
appellate judge held that the jurisdiction to decree specific relief is
discretionary and the court can consider various circumstances to decide
whether such relief is to be granted. Considering that the specific relief is
not granted. Moreover, the first appellate judge found that the evidence of
plaintiff itself clearly shows that she has not approached the court with
clean hands and according to the defendants, it is only a loan agreement and
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not a sale agreement as claimed by the plaintiff. Further, the evidence of
P.W.1 was not supporting the case of D.W.1. Though there is oral as well as
documentary evidence, the same has not proved the claim of plaintiff.
Accordingly the appeal was allowed. Moreover, the value of property now
became very high, but, for very less value, the sale consideration was fixed,
so, plaintiff is not entitled for execution of the sale deed and the evidence of
P.W.1 also unbelievable so as to pay meagre amount of Rs.5000/-, Ex.A2
agreement was created for 11 months. Accordingly, the suit was dismissed
by allowing the appeal. The refund of advance amount was not granted by
suo motu by relying the authority held in Civil Appeal No.921 of 2022.
Now, challenging the said findings, this Second Appeal was preferred.
4. The learned counsel for appellant would submit that there is a
substantial question of law arise for consideration, but in the evidence of
P.W.1 itself, she has stated that she knew the value of the property at the
time of sale agreement is Rs.7,85,000/- but contrary to that, the sale
consideration was fixed only for Rs.94,000/-. Even assuming that she is a
bonafide purchaser, she cannot compel the party to sell his property for
lesser value and the plaintiff is bound to prove her case and the party cannot
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go against their own evidence. Therefore, there is no question of law arise
for setting aside the findings of the first appellate judge, which needs no
interference of this court. Hence, I do not find any merit in this Second
Appeal as there is no question of law involved for consideration.
Accordingly, this Second Appeal is dismissed as no merit. However, the
respondents/defendants are directed to refund the advance amount of
Rs.89,000/- with 12% interest from the date of filing the suit till realisation
and the balance amount, she deposited in the court is liable to be returned to
the plaintiff with accrued interest. No costs. Consequently, the connected
Civil Miscellaneous Petition is closed.
25.10.2024
rpp
To
Sub-Judge,
Pappireddipatti.
https://www.mhc.tn.gov.in/judis
T.V.THAMILSELVI, J.
rpp
25.10.2024
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