Madras High Court
Kaliyannan vs Sellammal ... 1St on 2 January, 2025
2025:MHC:4273
S.A.No.4 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 25 / 09 / 2024
JUDGMENT PRONOUNCED ON : 02 / 01 / 2025
CORAM
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.4 OF 2019
AND
CMP NO.27 OF 2019
Kaliyannan ... Appellant /
Appellant /
3rd Defendant
Vs.
1.Sellammal ... 1st Respondent /
1st Respondent /
Plaintiff
2.Tamilselvi ** ... 2nd Respondent /
2nd Respondent /
2nd Defendant
3.Rajalingam (Given Up) *** ... 3rd Respondent /
4th Respondent /
4th Defendant
[** Second Appeal dismissed as abated against the 2nd respondent vide
Order of this Court dated August 30, 2024 made in S.A.No.4 of 2019
*** No relief sought against 3rd respondent. Hence 3rd respondent
given up vide Order of this Court dated August 30, 2024 in S.A.No.4
of 2019]
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
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S.A.No.4 of 2019
Procedure, 1908, praying to set aside the Judgment and Decree dated
August 7, 2015 made in A.S.No.2 of 2013 on the file of the Sub Court,
Namakkal, confirming the Judgment and Decree dated July 20, 2012
made in O.S.No.419 of 2005 on the file of the Principal District Munsif
Court, Namakkal.
For Appellant : Mr.T.Dhanyakumar
For Respondent-1 : Mr.P.Ganesan
For Respondent-2 : Dismissed as abated vide this
Court’s Order dated 30.08.2024
For Respondent-3 : Given Up
JUDGMENT
This Second Appeal is directed against the Judgment and
Decree dated August 7, 2015 passed in A.S.No.2 of 2013 by the 'Sub
Court, Namakkal' [henceforth 'First Appellate Court' for brevity]
confirming the Judgment and Decree dated July 20, 2012 passed in
O.S.No.419 of 2005 by the ‘Principal District Munsif Court, Namakkal'
[henceforth 'Trial Court' for brevity].
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFF'S CASE
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3. The Suit Property was bequeathed to defendants 1 and 2
vide the Will dated July 6, 1979 executed by their father. The plaintiff
entered into a registered Sale Agreement with the defendants 1 and 2 on
December 2, 2004. The sale price was fixed at Rs.45,000/- (Rupees Forty
Five Thousand only). The period fixed for performance of contract was on
or before June 13, 2005. The plaintiff paid an advance of Rs.5,000/- on the
same day viz., December 2, 2004 itself.
3.1. According to the plaintiff, the defendants 1 and 2 handed
over possession of the Suit Property to the plaintiff. The plaintiff was
ready and willing to perform his part of contract within the period
mentioned in the Sale Agreement. The defendants 1 and 2 delayed their
part of performance. Hence, the plaintiff issued a legal notice on June 3,
2005, calling upon the defendants 1 and 2 to execute the Sale Deed after
receiving the balance sale consideration. The defendants received the said
notice on June 4, 2005, but did not cause any reply. Hence, the plaintiff
filed the Suit seeking the relief of Specific Performance of the agreement
and permanent injunction.
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FIRST AND SECOND DEFENDANT'S CASE
4. The first defendant filed written statement and the same
was adopted by the second defendant. They denied the execution of Suit
Sale Agreement as well as the passing of consideration and handing over
possession under it. It is the case of defendants 1 and 2 that they borrowed
money for their urgent requirements from various persons by executing
promissory notes in their favour. Then the defendants 1 and 2 were unable
to repay the loan and the lenders began demanding the money due and
caused much trouble to defendants 1 and 2. Hence, with a view to escape
from the lenders, they executed the Suit Sale Agreement sham and
nominally, with no intention to sell the Suit Property. Moreover, the same
is not acted upon. Hence, the defendants 1 and 2 sought to dismiss the
Suit.
THIRD DEFENDANT'S CASE
5. The third defendant filed written statement stating that he
has purchased ½ share in the Suit Property through Court Auction Sale in
R.E.P. No.241/2005 and the plaintiff herein filed REA No.181/2006 in
REP No.241/2005 praying not to confirm the sale. The said petition was
dismissed and the sale was confirmed in favour of the third defendant in
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respect of 1/2 share in the Suit Property on December 28, 2005. Hence,
the third defendant is not a necessary party to the Suit. Accordingly, he
prayed to dismiss the Suit.
TRIAL COURT
6. At trial, the plaintiff – Chellammal was examined as P.W.1,
two other witnesses were examined as P.W.2 and P.W.3 and Ex-A.1 to Ex-
A.13 were marked on the side of the plaintiff. On the side of the
defendants, the 2nd defendant – Tamilselvi was examined as D.W.1, 3rd
defendant - Kaliyannan was examined as D.W.2 and Ex-B.1 to Ex-B.10
were marked.
6.1. The Trial Court, after considering the evidence and
materials available on record, came to the conclusion that the Suit Sale
Agreement is true and valid and accordingly, decreed the Suit for Specific
Performance and directed the defendants 1 and 2 to execute Sale Deed in
favour of the plaintiff after receiving the balance sale consideration of
Rs.40,000/- within a period of one month. As far as the prayer qua
permanent injunction is concerned, the Trial Court concluded that
possession was not handed over to the plaintiff and accordingly, dismissed
the Suit qua permanent injunction.
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FIRST APPELLATE COURT
7. Feeling aggrieved by the Trial Court's Judgment and
Decree, the 3rd defendant preferred an appeal in A.S.No.2 of 2013 while
the 2nd defendant preferred an appeal in A.S.No.74 of 2013 before the First
Appellate Court. The First Appellate Court jointly tried both the appeals
and finally, concurred with the findings of the Trial Court and dismissed
them.
SECOND APPEAL
8. Feeling aggrieved by the common Judgment and Decree
passed by the First Appellate Court, the 3rd defendant has preferred this
Second Appeal, which was admitted on January 7, 2019 on the following
substantial questions of law:
"(1)Whether the plaintiff is entitled to the discretionary
relief of Specific Performance in view of the finding of the
Courts below that the plaintiff is not in possession of suit
properties and the falsity of the case of the plaintiff regarding
possession will disentitle the plaintiff to get the relief?
(2)Whether the 3 rd defendant is not entitle to the suit
properties in view of the sale under Ex.B.4 through Court
auction in E.P.No.241 of 2005?
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(3)Whether the order made against the plaintiff by
Executing Court in the previous suit in E.P.No.241 of 2005 on
the file of the learned Additional District Judge, Namakkal,
will disentitle the plaintiff to get the relief in the present suit
and the same will operate as res judicata?”
8.1. It is apposite to mention here that the third defendant is
none other than the Court auction purchaser of ½ share in the Suit
Property in REP No.241/2005. The plaintiff herein filed REA
No.181/2006 praying to raise the attachment caused in the above said
Execution Proceedings. The Trial Court dismissed REA No.181/2006.
Feeling aggrieved, the plaintiff herein preferred an appeal in A.S.No.94 of
2007 and the said appeal was allowed on February 29, 2012. It appears
that the third defendant, who is the petitioner in REP No.241/2005, did not
prefer any appeal over the decision in A.S.No.94 of 2007.
8.2. Further, after filing this Second Appeal, the second
defendant, namely Tamil Selvi passed away. The appellant did not take
steps to bring the legal heirs / legal representatives of the second
defendant. Hence, this Second Appeal against the second respondent /
second defendant was dismissed as abated vide this Court’s Order dated
August 30, 2024.
8.3. Furthermore, the appellant did not seek any relief in this
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Second Appeal against the third respondent / 4th defendant. Thus, 4th
defendant has been given up. The said fact has been recorded by this
Court vide Order dated August 30, 2024.
ARGUMENTS
9. The learned Counsel for the appellant / 3rd defendant
appeared before this Court through Video-Conferencing Mode and
submitted that the appellant did not seek any relief against the third
respondent/4th defendant. Hence, the 4th defendant was given up. The
aforesaid fact has been recorded in this Second Appeal. Further, the
learned counsel submitted that both the Courts below concurrently held
that the Suit Sale Agreement is true and valid and fairly prayed to pass
orders based on the records.
10. Learned Counsel for the first respondent / plaintiff
submitted that the Trial Court as well as the First Appellate Court
concurrently held that the Suit Sale Agreement is true and valid. The said
factual findings were recorded based on evidence and documents. There is
no substantial question of law involved in this Second Appeal.
Accordingly, he prayed to dismiss the Second Appeal.
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DISCUSSION
11. This Court has considered both sides’ submissions and
perused the evidence available on record.
12. One Subramanian filed a Money Suit in O.S.No.373 of
2005 on the file of Additional District Munsif Court, Namakkal against
one Sudhamadhi and 4th defendant – Rajalingham. The said Suit was
decreed and the Suit Property herein was attached in the said Suit at the
instance of the plaintiff therein. The plaintiff herein filed E.A.No.630 of
2006 in E.P. No.89 of 2006. The said EA was dismissed, aggrieved by
which the plaintiff herein filed appeal in A.S.No.94 of 2007 and the same
was allowed and Judgment dated February 29, 2012 ordering the
attachment to be raised was passed (Ex-A.12 and Ex-A.13). In short, the
Suit Property herein was relieved from the execution proceedings in that
Suit. The said Subramaniam filed another Suit in O.S.No.242 of 2005 on
the file Additional District Munsif Court, Namakkal and the same was
decreed. The plaintiff therein filed execution proceedings and the
appellant / 3rd defendant herein – Kaaliannan purchased the property in
R.E.P. No.241 of 2005. The plaintiff herein filed E.A.No.181 of 2006
praying to set aside the Court auction sale and the same was dismissed on
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January 29, 2007 (Ex-B.1 and Ex-B.2). Feeling aggrieved the plaintiff
herein filed an appeal in A.S.No.95 of 2007 (Ex-B.3) and the same was
allowed on February 29, 2012 and the sale was cancelled. It appears that
the 3rd defendant did not prefer any appeal. Hence the Judgment and
Decree passed in A.S.No.95 of 2007 reached finality and the 3rd
defendant’s claim has been negatived.
13. Ex-A.1 - Sale Agreement is a registered agreement and its
execution is proved. The Trial Court as well as the First Appellate Court,
disbelieved the case of plaintiff that possession was handed over to the
plaintiff under Ex-A.1. However, both the Courts concurrently held that
Ex-A.1 – Suit Sale Agreement is true and valid, and accordingly, decreed
the Suit for Specific Performance.
14. Pending this Second Appeal, the second respondent /
second defendant passed away. The appellant / 3rd defendant did not take
any steps to bring on record the legal heirs of the second
respondent/second defendant. The relief against the third respondent/4th
defendant was given up.
15. In these circumstances, in view of the concurrent findings
recorded by the First Appellate Court and the Trial Court, this Court is of
the considered view that the Second Appeal must fail. The Substantial
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Questions of Law framed in this Second Appeal are answered accordingly
in favour of the plaintiff and against the third respondent / 4th defendant.
RESULT
16. Resultantly, the Second Appeal is dismissed. Considering
the facts and circumstances of the case, there shall be no order as to costs.
Consequently, connected Civil Miscellaneous Petition is closed.
02 / 01 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
To
1.The Subordinate Judge
Subordinate Court
Namakkal.
2.The Principal District Munsif
Principal District Munsif Court
Namakkal.
R. SAKTHIVEL, J.
TK
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PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.4 OF 2019
02 / 01 / 2025
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