Madras High Court
S.P. Palanisamy vs Alagammal on 2 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
AS No.19 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.06.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Appeal Suit No.19 of 2016
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1. S.P. Palanisamy
2. Kullapadayachi
3. R.P. Nagaraj .. Appellants
Versus
1. Alagammal
2. Ramachandran .. Respondents
Appeal Suit is filed under Section 96 of Civil Procedure Code to set
aside the Judgment and Decree dated 24.08.2015 passed in O.S. No. 199 of
2012 on the file of the learned II Additional District Judge, Salem.
For Appellants : Mr. K. Selvaraj
For Respondents : No Appearance
JUDGMENT
This Appeal Suit has been filed to set aside the Judgment and Decree
dated 24.08.2015 passed in O.S. No. 199 of 2012 on the file of the learned II
Additional District Judge, Salem.
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2. The suit in O.S. No. 199 of 2012 was filed by the Plaintiffs for
recovery of the sum of Rs.10,28,500/- together with further interest at the rate
of Rs.2/- per Rs.100/- per month from the date of plaint till realisation and to
pay further interest till the date of realisation.
3. According to the Plaintiffs, the first Defendant was the owner of
the properties which he had purchased through sale deed registered as
Document Nos. 618 of 1990 and 805 of 1993. Further, there are some
ancestral properties in which the Plaintiffs and his relatives Selvam,
Jagathambal and their children are also having a share. All these properties
put together were agreed to be sold by the first Defendant and his relatives by
entering into an agreement of sale with the Plaintiffs, agreeing to sell it at the
rate of Rs.12,250/- per cent. The agreement dated 14.06.2006 was not
registered. On the date of execution of the agreement of sale on 14.06.2006,
the Plaintiffs paid Rs.5,00,000/- as advance. Subsequently, the Plaintiffs were
also put in possession of the plaint schedule property. After taking possession,
the Plaintiffs have incurred huge expenses for levelling the land and divided
the lands into plots. According to the Plaintiffs, one such plot was sold by
them jointly with the Defendants for Rs.2,50,000/- to one Ramayee, however,
the Defendants have taken the entire sum of Rs.2,50,000/- without paying any
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amount to the Plaintiffs. While so, one Sangeetha, relative of the Defendants
raised a rival claim in the plaint schedule property. Asserting a right over the
plaint schedule property, the said Sangeetha had executed an agreement of sale
dated 04.09.2006 in favour of one Muthusamy for sale of 77 cents of land. On
coming to know about the agreement of sale executed by the said Sangeetha,
Plaintiffs called upon the Defendants to clear the encumbrance in the property
and to execute a sale deed in their favour. In this context, a panchayat was
convened on 29.03.2012 in which the Defendants agreed to pay Rs.4,20,000/-
with interest at the rate of Rs.2/- per Rs.100/- from 14.05.2007 onwards.
Similarly, Jagathambal and Selvam have separately executed a consent deed
agreeing to pay the sum of Rs.2,90,000/- plus Rs.37,500/- for the expenses
incurred to level the land, to the Plaintiffs. Accordingly, on 08.10.2022, the
above said Jagathambal and Selvam have paid the plaintiff a sum of
Rs.6,98,700/- towards principal and interest and on such payment, the
Plaintiffs also returned the consent deed executed by them.
4. According to the Defendants, having executed the consent deed
voluntarily on 29.03.2012, on 01.08.2012, they sent a legal notice to the
Plaintiffs stating that the consent deed dated 29.03.2012 was obtained by
inducement, fraud and coercion. For the legal notice dated 01.08.2012 sent by
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the Defendants, a reply notice was also sent by the Plaintiffs on 11.08.2012.
Thereafter, the instant suit was filed.
5. On notice, the first Defendant filed a written statement denying
the plaint averments. It was stated that the sale agreement dated 14.06.2006 is
a fraudulent document and it was not executed by the Defendants. The sale
agreement dated 14.06.2006 is a fraudulent document will be clear from the
fact that in the said sale agreement dated 14.06.2006, it was made as if one
Samiyannan signed. However, the said Samiyannan died even in the year
2001. Further, the ancestral properties of Selvam and Jagathambal are shown
as ancestral properties, but the legal heirs of Selvam and Jagathambal have not
been added as parties to the agreement of sale. Further, the second Defendant
was not a party to the sale agreement, but the sale agreement contains the
signature of the second Defendant as well. Thus, the Plaintiffs themselves
executed a void agreement of sale. According to the first Defendant, on
14.06.2006 an agreement of sale was executed, but the Plaintiffs did not pay
Rs.5 lakhs as alleged. It was further stated that the Plaintiffs were not ready
and willing to pay the balance amount and to get the sale deed executed in
their favour. The legal notice dated 01.08.2012 was sent beyond the period of
11 months mentioned in the agreement of sale. The consent deed dated
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29.03.2012 was not executed voluntarily and therefore, it will not bind the
Defendants. Accordingly, the Defendants prayed for dismissal of the suit with
costs.
6. During trial, the second Plaintiff examined himself as P.W-1 along
with two other witnesses as P.W-2 and P.W-3 and marked Ex.A-1 to Ex.A-15
on their side. On behalf of the Defendants, the second Defendant examined
himself as D.W-1 and one Vijayakumar was examined as D.W-2 and Ex. B-1
to B-13 were also marked. That apart, the consent deed dated 29.03.2012 and
registration of certificate received from the Registration Department have been
marked as Ex.X1 and Ex.X2 respectively.
7. The trial Court dismissed the suit with costs by observing that the
Defendants have clearly established that the consent deed under Ex.A-8 was
not executed by them voluntarily but it was made to be executed by force.
Further, the Defendants have issued a notice under Ex.A-9 informing that the
Plaintiffs have threatened the Defendants and others to execute the consent
deed under Ex.A-8. When it was the case of the Defendants that they were
made to execute the consent deed by force, the burden is on the Plaintiffs to
disprove the same. But the Plaintiffs did not disprove such an averment made
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by the Defendants. The trial Court also observed that the Plaintiffs also failed
to prove that they have paid Rs.4,20,000/- to the Defendants from 14.05.2007
to 29.09.2012 by producing documentary evidence or examined any witness to
prove the alleged expenses incurred by them for levelling the land.
8. Assailing the aforesaid Judgment dated 24.08.2015 dismissing the
suit in O.S. No. 199 of 2012, the present Appeal Suit is preferred by the
Plaintiffs.
9. The learned Counsel for the Appellants submitted that the suit was
filed for recovery of Rs.10,28,500/- based on the consent deed dated
29.03.2012 and subsequent interest at the rate of Rs.2/- per Rs.100/- on
Rs.4,20,000/- from the date of the plaint. According to the learned Counsel, on
14.06.2006, the Defendants and their relatives Selvam, Jagathambal, R.
Kumar, R. Mohan, Ashok Kumar and Sumathi have entered into an agreement
of sale for sale of the property and received a sum of Rs.5,00,000/- as advance.
Subsequently, Plaintiffs and Defendants have jointly executed an agreement of
sale in favour of one Ramayee Ravi and received Rs.2,50,000/-. Similarly, an
agreement of sale dated 22.03.2007 was entered into with one Murugesan and
Madhesh. However, one of the relatives of the Defendants by name Sangeetha
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raised a rival claim and consequently, Murugesan and Madhesh have cancelled
the agreement of sale entered into with the Plaintiffs and received the advance
amount paid to the Plaintiffs. Since a dispute has arisen with the Defendants
for repayment of the advance amount, a panchayat was convened in which the
Defendants agreed to return their share of the amount of Rs.4,20,000/- with
interest at the rate of Rs.2/- per Rs.100/- and also entered into a Consent Deed
on 29.03.2012. The Defendants also agreed to repay Rs.37,500/- incurred by
the Plaintiffs for levelling the land. However, the Defendants disputed the
consent deed executed by them. In fact, Selvam and Jagathambal, relatives of
the Defendants paid Rs.6,98,700/- to the Plaintiffs on 08.10.2012 and upon
such payment, the consent deed executed by them was returned by the
Plaintiffs. However, the Defendants have issued the legal notice on
01.08.2012, after five months of executing the consent deed, falsely stating
that the consent deed was obtained by threat and coercion. A reply was issued
by the Plaintiffs repudiating the averments in the notice dated 01.08.2012,
however, the Defendants have not issued any rejoinder.
10. The learned Counsel for the Plaintiffs/Appellants submitted that
the trial Court concluded that under Ex.A-1 there are interpolations and it
cannot be relied on. On the other hand, Ex.A-1 is a document neatly typed and
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signed by the parties and there is no interpolation or interlineation in Ex.A-1.
Further, the trial Court wrongly held that Kumar and others have signed as “B”
parties in Ex.A-1, but they were only signed as 'A' parties. The Trial Court,
without proper assessment of Ex.A-1 erred in rendering a factual finding with
respect to Ex.A-1. With respect to the receipt of Rs.6,98,700 from
Jagathambal and Selvam, under Ex.A-7, the trial Court wrongly held that when
the total advance amount received by the Defendants along with Jagathambal
and others itself is Rs.5,00,000/- there is no necessity for Jagathambal and
Selvam to pay Rs.6,98,700/-. The fact remains that the Plaintiffs received
Rs.2,90,000/- towards part of advance amount, interest of Rs.3,71,200/-
together with the expenses of Rs.37,500/- incurred by the Plaintiffs totalling
Rs.6,98,700/-. This was not properly considered by the trial Court.
11. The learned Counsel for the Appellants/Plaintiffs also submitted
that P.W-2, who is also related to the Defendants, has clearly stated that Ex.A-
1 has been prepared and signed by the parties. It was further stated that some
of the names have been omitted and it was hand written in Ex.A-1. Therefore,
there is no reason to disbelieve Ex.A-1 by the trial Court. Further, the
Defendants have admitted having received Rs.1,75,000/- under Ex.B-8 and it
was totally ignored by the trial Court.
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12. The learned Counsel for the Appellants further stated that after the
execution of the agreement for sale dated 14.06.2006, the Defendants 1 & 2,
who were also parties to the sale agreement, opposed the sale agreement
stating that it is the joint family properties or undivided properties and it
cannot be conveyed to the Plaintiffs. Therefore, the Plaintiffs had obtained the
consent deed dated 29.03.2012 from the other relatives who have protested
against the Defendants 1& 2. In the Consent Deed, the relatives of Defendants
1 & 2 have repaid advance amount. Even after obtaining the Consent Deed the
Plaintiffs levelled the land measuring 1 Acre 67 Cents and incurred expenses
of their own. The other parties have laid out the land as house sites.
Subsequently, the very same party did not come forward to execute the sale
deed. Therefore, the Plaintiffs caused legal notice on the Defendants 1 & 2
and other relatives. The other relatives were parties to the consent deed
returned the amount that was received by them. However, the Defendants 1 &
2 did not return the amount. While so, the Defendants are estopped from
refusing to repay the amount received from the Plaintiffs. Further, the
evidence of P.W-1 and the Stamp Vendor P.W-2, examined before the trial
Court substantiate the due execution of agreement between the parties. Inspite
of such evidence made available before the trial Court, the Trial Court
erroneously dismissed the suit. It is the specific contention of the learned
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Counsel for the Appellants that the suit claim was not based on the sale
agreement dated 14.06.2006, but based on the consent deed obtained from the
Defendants and their relatives. Therefore, the learned Counsel for the
Appellants seeks to set aside the Judgment of dismissal dated 24.08.2015
passed in O.S. No. 199/2012 on the file of the learned II Additional District
Judge, Salem and to decree the Suit.
13. Even though the name of the Respondents were printed in the
cause list, they did not engage a Counsel to defend this appeal. Therefore, on
the basis of the submissions of the learned Counsel for the Appellants and
upon considering the oral and documentary evidence let in before the trial
Court, this appeal is being disposed of.
Points for determination:
1. Whether the Plaintiffs/Appellants are entitled to
recover the money based on the alleged consent deed?
2. Whether the trial Court failed to consider Ex.A-8 and
dismissed the suit on the ground of Limitation based on the
Sale agreement under Ex.A-1?
14. Heard the learned Counsel for the Appellants/Plaintiffs. Perused
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the records in O.S.No.199 of 2012 and the judgment dated 24.08.2015 of the
learned II Additional District Judge, Salem in O.S. No. 199 of 2012.
15. On perusal of the Plaint averments, averments in the written
statement filed by the Defendants, evidence of the Plaintiffs' witnesses viz.,
P.W-1 to P.W-3, evidence of the Defendants' witnesses viz., D.W-1 and D.W-2
and the contention of the learned Counsel for the Appellants/Plaintiffs, it is
evident that that the cause of action for the Suit is based on the Consent Deed
alleged to have been executed by the Defendants. Earlier a sale agreement
came to be entered into between the Plaintiffs and the Defendants herein and
their relatives. However, the agreement of sale could not be implemented due
to dispute raised by the relatives of the Defendants. Therefore, the Plaintiffs
demanded the amount from the Defendants as well as their relatives. The
relatives of the Defendants have repaid the amount to the Plaintiffs with
interest. Therefore, the Plaintiffs had not sought for any relief against them and
had filed the Suit only against the Defendants 1 and 2 herein. Thus, on the
basis of the Consent Deeds executed by the Defendants 1 and 2, the instant
suit was filed.
16. It is seen that the agreement under Ex.A-1 was dated 14.06.2006
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and it was entered into between Defendants 1 and 2 and others. Similarly,
some other agreements were also entered into between the Plaintiffs and
others. Admittedly, Ex.A-1 was not given effect to until the consent deed
dated 29.03.2012 came to be executed. Thus, the consent deed came to be
executed at least six years after execution of Ex.A-1. If the consent deed was
obtained by the Plaintiffs within a reasonable time, then the Plaintiffs are
entitled to approach the Civil Court for recovery of money. The submission of
the learned Counsel for the Plaintiffs is that the Suit was filed based on the
Consent Deed. It is admitted that the cause of action for the suit arose only on
the basis of agreement entered into on 14.06.2006. The averments in
paragraph No.VIII also clearly disclose that the cause of action for the suit is
the agreement under Ex.A-1. However, the suit was filed 18.10.2012 for
recovery of money. The suit was not filed for specific performance of the
agreement of sale under Ex.A-1. In such event, the Plaintiffs ought to have
filed the suit within three years from entering into Ex.A-1, agreement of sale.
However, the present suit has been filed on 18.10.2012 which is beyond the
period of three years from 14.06.2006, the date on which Ex.A-1 came to be
entered into between the parties. The learned Judge had appreciated the
evidence as per the provision of Indian Evidence Act and analysed the case
based on the law of Limitation and arrived at a proper conclusion that the Suit
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is not maintainable. Therefore, this Court does not accept the submission of
the learned Counsel for the Appellants/Plaintiffs.
17. Perused the deposition of P.W-1 Kulla Padayachi, P.W-2 Selvam,
P.W-3 Matheshwaran and the documents marked on the side of the Plaintiffs
under Ex.A-1 to Ex.A-15. Perused the deposition of witnesses, D.W-1 Rama
Chandran, D.W-2 Vijayakumar and the document marked on the side of the
Defendants under Ex.B-1 to Ex.B-13 and the Court documents under Ex.X-1
and Ex.X-2. On perusal of the judgment of the learned II Additional District
Judge, Salem in O.S.No.199 of 2020 dated 24.08.2015, it is found that the
learned Judge had not dismissed the suit based on limitation. The argument of
the learned Counsel for the Plaintiffs before the learned II Additional District
Judge, Salem is that, the suit is based on Consent deed, executed by the
Defendants 1 and 2. In the written statement, Defendants 1 and 2 have
disputed the Consent deed by stating that the Consent deed was obtained by
the Plaintiffs under duress and coercion in the Office of the Deputy
Superintendent of Police with whom the Plaintiffs have influence. Therefore, it
was contended by the Defendants that the Consent Deed is not binding on the
Defendants. The trial Court framed issues regarding Consent deed as to
whether the Consent deed dated 29.03.2012 executed by the Defendants is true
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and valid. While answering the issue, the learned II Additional District Judge,
had in her judgment observed as follows:-
“46. This Court has carefully perused the records of the
case and a careful perusal of Ex.A8 clearly shows that the
Defendants have entered into a deed of consent with the Plaintiffs
agreeing o pay a sum if Rs.4,20,000/- with interest at the rate of
Rs.2/- per Rs.100/-. 14.05.2007 till date and they have also
agreed to pay a sum of Rs.62,500/- towards the levelling of the
land. In the consent deed Ex.A-8 one Madheswaran and Ashok
Kumar have signed as witnesses and one Paulraj is the document
writer. Though P.W.3 was examined by the Plaintiffs to prove the
execution of Ex.A-8, he has admitted in cross that the consent
deed was obtained by coercion. But there is no proof whether the
alleged amount of Rs.4,20,000/- have been received by the
Defendants.
47.“Further when the Defendants denied that Ex.A8 was
obtained at Tholasampatty Police Station under fraud and
coercion, it is the burden on the part of the Plaintiffs to prove the
same but the Plaintiffs have not discharged their burden. The
Plaintiffs have not come before this Court with clean hands.
Further the arguments advanced by the learned Counsel for the
Defendants that the Plaintiffs have alleged in the plaint that they
have given Rs.5 lakhs to the party persons. But the Plaintiffs
have not stated how much amount they have given to the
Defendants. P.W-1 has admitted during cross that as per Ex.A-4
the said Rs.2.50 lakhs was not received by the Defendants is
correct and the Plaintiffs have not issued any legal notice
showing their readiness and willingness and they have not issued
any legal notice showing their readiness and willingness and not
filed any suit for performance of the sale agreement needs to be
accepted by this Court.
48. Further when the Defendants denied that Ex.A-8 was
obtained at Tholasaampatty Police Station under fraud and
coercion. It is the burden on the part of the Plaintiff s to prove
the same but the Plaintiffs have not discharged their burden. The
Plaintiffs have not come not come before this Court with clean.
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Further the arguments advanced by the learned Counsel for the
Defendants that the Plaintiffs have alleged in the plaint that they
have given Rs.5 lakhs to the party persons. But the Plaintiffs
have not stated how much amount they have given to the
Defendants. P.W-1 has admitted during cross that as per Ex.A-4
the said Rs.2.50 lakhs was not received by the Defendants is
correct and the Plaintiffs have not issued any legal notice
showing their readiness and willingness and they have not issued
any legal notice showing performance of the sale agreement
needs to be accepted by this Court.”
18. The evidence of the Scribe, who was examined as P.W-3 by the
Plaintiffs to prove the Consent deed under Ex.A-8 was rejected by the learned
II Additional District Judge by stating that his evidence cannot be relied upon
and on that basis on proper appreciation of evidence, the learned II Additional
District Judge, Salem had arrived at a conclusion that the Consent Deed had
not been proved through acceptable evidence. Therefore, the claim of the
Plaintiffs based on Consent deed under Ex.A-8 does not hold good and had
rejected the claim of the Plaintiff.
19. In the cross examination, the Plaintiffs accepted that Ex.A-8
Consent deed was obtained before the Police Station. Under those
circumstances, it shall be presumed that the Consent Deed was not executed by
the Defendants voluntarily. It can be presumed that the period stipulated in the
agreement of sale under Ex.A-1 could not be enforced due to limitation and
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therefore, the Plaintiffs obtained a consent deed from the Defendants to save
the lost period of limitation. Therefore, this Court is of the view that the
execution of the Consent Deed was by adopting force and coercion. The
Consent Deed was not executed voluntarily. It is based on the Consent Deed,
the suit was filed in the year 2012, however, in the cause of action, it was
stated that the suit is being filed on the basis of the agreement dated
14.06.2006. The period stipulated in the agreement dated 14.06.2006 lapsed
and the Plaintiffs were precluded from approaching the court for enforcement
of Ex.A-1. It is in those circumstances, the Plaintiffs have engineered a novel
idea to get a Consent Deed from the Defendants to enforce their lost right.
When it is shown that the consent deed was obtained by force, such document
cannot be relied on. On appreciation of the entire evidence, the learned II
Additional District Judge rejected the claim of the Plaintiffs. When the
Plaintiffs fail to prove the consent deed under Ex.A-8, naturally the suit has to
be dismissed. Therefore, on re-appraisal of the same evidence, this Court
arrives at the same conclusion that the Plaintiffs have not proved the case
through acceptable evidence.
20. In the light of the above discussion, the points for determination
are answered against the Plaintiffs and in favour of the Defendants. The
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Judgment and Decree dated 24.08.2015 passed in O.S. No. 199 of 2012 by the
learned II Additional District Judge, Salem, is found proper and the same is to
be confirmed.
In the result, this Appeal Suit is dismissed. The Judgment and Decree
dated 24.08.2015 passed in O.S. No. 199 of 2012 by the learned II Additional
District Judge, Salem is confirmed. No costs.
02.06.2025
dh/shl
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
To
1. The learned II Additional District Judge,
Salem.
2. The Section Officer,
V.R. Section,
High Court, Madras.
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SATHI KUMAR SUKUMARA KURUP, J
dh/shl
Judgment in
02.06.2025
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