A.S.Nos.354 and 355 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 05.03.2025
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
A.S.Nos.354 & 355 of 2022
and CMP.No.12740 of 2022
D.Radhakrishnan (Deceased)
1.Sathiya
2.R.Kamala ... Appellant in both ASs
Versus
1.C.N.Munusamy
2.P.Kandasamy ... Respondents in both ASs
Prayer: Appeals filed under Section 96 read with Order 4 Rule 1 of Code of Civil
Procedure, to set aside the judgment and decree dated 29.03.2022 made in
O.S.Nos.162 of 2014 and 173 of 2012 respectively on the file of the Sessions Fast
Track Mahila Judge, Namakkal.
In both ASs
For Appellant : Mrs.Chitra Sampath, Senior Counsel
for Mr.T.S.Baskaran
For respondents
: Mr.A.Sundara Vadhanam for R1
Mr.V.Raghavachari, Senior Counsel
for Mr.C.E.Pratap for R2
COMMON JUDGMENT
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These two appeals are filed challenging the decree and judgment of the Trial
Court in O.S.No.173 of 2012 and O.S.No.162 of 2014.
2. O.S.No.173 of 2012 has been filed for relief of specific performance of
agreement dated 27.12.1997 and O.S.No.162 of 2014 has been filed by the tenant
who is said to be a tenant to the agreement holder for permanent injunction as
against the defendant not to evict him except by due process of law. Both the
appeals have been partly decreed. Hence, the present appeals.
3. The main issue to be decided in these appeals is with regard to the
comprehensive suit for specific performance. The suit in O.S.No.162 of 2014 is
depending on the decision of the O.S.No.173 of 2012 filed for enforcing the
contract. Since both the appeals were tried and disposed vide a common judgment,
this Court is inclined to dispose of both the appeals vide a common judgment. The
parties are arrayed to as per their own ranking before the Trial Court.
4. Brief facts leading to filing of the suit in O.S.No.173 of 2012 are as
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follows:
4.a. It is the case of the plaintiff that the deceased 1st defendant
Radhakrishnan is the allottee of the suit house by the Tamilnadu Housing Board
bearing door number M.65. The 1st defendant was in possession and enjoyment of
the same. On 27.12.1997, the deceased 1st defendant entered into a written
agreement of sale with the plaintiff in respect of the suit property and as per the
sale agreement the sale price of the suit property was fixed at Rs. 3,00,000/- and a
sum of Rs. 2,50,000/- was paid by the plaintiff to the 1st deceased defendant as
advance as a part of the sale price and as per the sale agreement, the understanding
was that as soon as the Housing Board executes the sale of the suit house in favour
of the 1st defendant. The 1st defendant should inform about the same to the plaintiff
and the plaintiff should pay the balance sale price to the 1st defendant and obtain a
registered sale deed in favour of the plaintiff within a period of six months
thereafter and the balance sale price of Rs.50000/- to be paid at the time of the
registration of sale deed. It is also the case of the plaintiff that he was in possession
of the suit property on the date of agreement as a part performance of the contract
of sale.
4.b. Further, the plaintiff has let the suit property on rent, to one C. N.
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Munusamy and that the tenant is in possession of the suit property. Plaintiff is also
paying the property tax for the suit property in Kadachanalur panchayat board, at
times in his name and at times in the name of the deceased 1st defendant. TNEB
service connection for the suit property stands in the name of the Executive
Engineer, TNEB and plaintiff has been paying the electricity charges in the name
of Executive Engineer TNEB and obtained receipts. The plaintiff has always been
ready and willing to perform his part of the contract to pay the balance sale price of
Rs. 50,000/- to the deceased 1st defendant. The plaintiff has spent about Rs.
3,50,000/- in the suit property by way of improvement in the year 2006 with the
knowledge of the deceased 1st defendant. The plaintiff has paid the installment due
to the Housing Board either by himself or through the deceased 1st defendant. On
31.12.2002 the Housing Board Salem, had issued notice to the deceased 1st
defendant which was received by the plaintiff since he is in occupation of the suit
property. The plaintiff paid a sum of Rs. 75,000/- to the Housing Board through the
deceased 1st defendant and requested the deceased 1st defendant to get back the
sale deed from the Housing Board as soon as possible and inform him so that the
plaintiff would pay the balance of the sale price of Rs. 50,000/- and get the sale
deed executed by the deceased 1st defendant.
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4.c. The plaintiff had been enquiring the deceased 1st defendant as to
whether the Housing Board has executed the sale deed in favour of the deceased
1st defendant, to which the deceased 1st defendant told the plaintiff that he had not
received the sale deed and he would inform the plaintiff when he receives the sale
deed from the Housing Board. While things stood thus, the plaintiff was shocked
when he was called upon to Pallipalayam police station on 03.09.2012 on the basis
of the complaint preferred by the deceased 1st defendant. The deceased 1st
defendant had given a complaint that the plaintiff had trespassed into the suit
property unlawfully and illegally and is in possession of the suit property. Only
thereafter, the plaintiff came to know that the deceased 1st defendant had received
the sale deed from the Housing Board on 02.01.2012 and that the deceased 1st
defendant had deliberately suppressed the same. Therefore, the plaintiff issued
notice to the deceased 1st defendant on 10.09.2012 demanding him to receive the
balance sale price and execute the sale deed in his favour in respect of the suit
property. After receipt of the legal notice on 13.09.2012, the defendant had
approached the Anti Land Grabbing Cell at Namakkal. Besides sending a reply
notice, deceased 1st defendant denied the sale agreement and receiving the
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advance amount of Rs. 2,50,000/- from the plaintiff. Hence the suit is filed for
specific performance or in the alternative for return of Rs.2,50,000/- with interest.
4.d. It is the contention of the deceased first defendant in the written
statement that he did not execute any sale agreement for sale of property nor
received Rs.2,50,000/- as advance and agreed to execute the sale deed within 6
months after the Housing Board executes the sale deed in favour of the defendant.
It is also denied that the plaintiff was put in possession of the suit property
Admitting that the suit property was allotted to defendant as per the order reference
No.R1/15046/86 dated 16.04.1987 in respect of terraced house measuring 1643
sq.ft., it is the contention of the defendant he has been paying monthly installments
regularly. On 02.01.2012, the Tamil Nadu Housing Board executed a sale deed in
favour of the defendant. It is the contention that after house was alloted to the
defendant, he permitted one Sundaram who worked with him in the Seshayee
Paper mill to occupy the house and be in management of the house. The said
Sundaram committed suicide and the plaintiff who was working as sub-staff in the
mill took advantage of the situation, trespassed into the property and also let one
Munusamy as a tenant in the suit property. The agreement has been fabricated after
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the police complaint has been given and the alleged improvement by the plaintiff is
denied. Readiness and willingness is also denied.
4.e. After the death of the first defendant, the legal heirs namely the 2nd and
3rd defendant also filed separate written statement taking the original stand of the
deceased first defendant and submitted that the plaintiff has trespassed into the suit
property taking note of the financial dealing with Sundaram. In that regard,
complaint is also given in the police station. According to them, agreement has
been fabricated, stamp papers have been purchased in Uttangarai. Admittedly, the
first defendant was residing in Pallipalayam near Erode. Further, the so-called
tenant one Munusamy/agreement holder of Kandasamy had filed the suit in
O.S.No.162 of 2014 seeking for relief of permanent injunction not to evict him
except by due process of law. That suit is also opposed by the defendants.
4.f. Based on the above pleadings, the Trial Court in O.S.No.173 of 2012
has framed the following issues:
i. Whether the sale agreement dated 27.12.1997 is true and valid and enforceable?
ii. Whether the plaintiff was ready to pay the balance sale consideration amount
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throughout and get the sale deed executed in his favour?
iii. Whether the plaintiff is entitled to the relief of specific performance as sought
for?
iv. Whether the plaintiff is entitled to the alternate relief of return of advance
amount paid by him?
v. Whether the plaintiff is entitled to the relief of permanent injunction as claimed
for?
vi. What other relief is the plaintiff entitled to?
vii. Whether it is true that the signature of the 1st defendant was forged in the sale
agreement dated 27.12.1997?
viii. Whether it is true that the plaintiff has unlawfully encroached into the suit
property and has sub-let it to Munusamy and is collecting rent from him?
ix. Whether the plaintiff is entitled for charge over the suit property?
4.g. Similarly, the Trial Court in O.S.No.162 of 2014 has framed the
following issues:
i. Whether there is any sale agreement entered between the first defendant and the
second defendant as claimed by the plaintiff?
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ii. Whether there is any land-lord tenant relationship between the 2nd defendant
and the plaintiff as claimed by the plaintiff?
iii. Whether the plaintiff is entitled to the relief of permanent injunction as prayed
for?
iv. To what other relief is the plaintiff entitled to?
v. Whether the plaintiff entered into an oral agreement to pay enhanced rent as
claimed by the 2nd defendant?
4.h. In both the suits, common evidence was recorded. On the side of the
plaintiff, PW1 to PW3 were examined and Exs.A1 to A25 were marked. On the
side of the defendants, DW1 and DW2 were examined and Exs.B1 to B20 were
marked. Exs.C1 to C3 were also marked.
4.i. Based on the oral and documentary evidences, the Trial Court partly
decreed the suit vide the common judgment. Challenging the same, the present
appeals have been filed.
5. The learned senior counsel for the appellants submitted as follows:
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a. that Ex.A1 sale agreement dated 27.12.1997 is fabricated. The alleged sale
agreement has been fabricated after the defendant gave complaint for alleged
trespassing into the property in the year 2012.
b. that the evidence of PW1 itself indicate that he came to know about the
execution of the sale deed only after the police complaint made by the defendant,
thereafter, legal notice was issued by the plaintiff. The evidence of PW1 and PW3
with regard to the execution of the document is highly improbable and against the
normal human conduct.
c. Ex.A1 does not speak about the part performance of the contract by putting the
plaintiff in the possession of the property, whereas, for the first time in the plaint, it
is pleaded as if he was put in possession of the property and Ex.A5 series has been
created only for the purpose of case.
d. The very pleadings of the plaintiff indicate that he has received a demand notice
from the Tamilnadu Housing Board, therefore, he paid Rs.75000/- to the Housing
Board through the first defendant. If really that amount has been paid by the
plaintiff, there was no necessity to pay the remaining balance sale consideration,
since, he has already paid excessive amount more than the agreed amount.
e. The evidence of PW1 clearly shows that he did not know where the first
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defendant was residing after 1992, he never met the first defendant thereafter.
Therefore, first defendant executing the agreement of the year 1997 is highly
improbable. The evidence of PW1, PW3 and the so-called attesting witnesses is
totally contradictory, in fact, their evidence also probabilise the defendants theory
that when there was no agreement, same has been created later after the police
complaint.
f. Ex.A5 is in respect of different assessment number, admittedly, the plaintiff is
also owning two or three flats in the Housing Board scheme, therefore, merely on
the basis of some receipt produced, it cannot be concluded that he was in put in
possession of property. Whereas, Exs.B4 and B7 clearly establish the fact that
defendant never lived in Salem and residing in different address.
g. Therefore, the person allegedly paying substantial amount in the year 1997 and
keeping silent all these years without even taking steps to enforce the alleged
contract proves the fact that agreement has been created.
h. Though expert has not been given any opinion and given a report that no
conclusion could be arrived, the fact remains that purchase of stamp papers at
Dharmapuri, when parties are admittedly residing in and around Salem probabilise
the defendants case that the agreement has been fabricated.
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i. document filed on the side of the defendants clearly shows that stamp vendor
who has sold Ex.A1 stamp paper has been arrested in a stamp paper scam and the
records are seized by the police officials. These facts clearly show that Ex.A1 has
been fabricated. Therefore, merely, because PW3 who is a close aid of plaintiff had
examined the genuineness of the document cannot be inferred when the doubt as to
genuinity of the document is inherent on the face of document, the plaintiff has to
establish the genuineness of the document. When the genuineness of the document
has not been established, the plaintiff cannot seek for specific performance,
whereas, the Trial Court has come to the conclusion that Ex.A1 is genuine by just
comparing the signature of the deceased found in Ex.A1 and B2, sale deed
executed in favour of the defendant in the year 2012.
j. The Trial Court assumed the role of expert and in fact sitting over as the
appellate authority to the expert opinion compared the signature and gave opinion
without any reasons.
6. Whereas, the learned senior counsel for the respondents submitted as
follows:
a. Admittedly, the allotment was made in favour of the first defendant. Ex.A1 has
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been executed by the first defendant and the plaintiff was put in possession of the
property. Ex.A2 house tax receipts clearly proves that the plaintiff has paid
property taxes from the year 2009 onwards. Ex.A3/water charges is also filed by
the plaintiff. Ex.A4/electricity charges have been paid by the plaintiff. Ex.A5 is the
notice issued by the Tamil Nadu Housing Board, Salem addressed to the house
address is received by the plaintiff. Family cards have been obtained by
Munusamy/tenant under Ex.A13. All these facts clearly show that plaintiff was put
in possession of the property.
b. The very conduct of the defendants in not even verifying the property till 2012
and police complaint was given clearly shows that they handed over the possession
of the property to the plaintiff. Hence, it is the contention that the entire case is
projected by the defendants as if the plaintiff has trespassed into the suit property
after the death of one Sundaram in the suit property. The said Sundaram died in
Pallipalayam not in the suit property. Ex.A23, FIR in Cr.No.171 of 1999, Erode
South Police Station clearly proves the above fact. Therefore, when the defendants
case has not been established by the documentary evidences, it has to be held that
plaintiff is entitled to specific performance.
c. Further, the contention that under Ex.B11/complaint given by the deceased first
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defendant dated 29.08.2012, there was no mention about the alleged suicide of
Sundaram in the suit house. Therefore, the false defense has been set up in the
written statement. These facts clearly indicate that the plaintiffs case is more
probable and the defendants has set up falsity only to non suit the plaintiff.
d. expert opinion report clearly shows that the document could not be compared
and no opinion has been given, whereas, contrary to the report, DW2 has given
evidence as if the signature of the first defendant is not tallied with the original
admitted signature. That evidence cannot be given much importance. The Trial
Court considered the conduct of the parties and the documents and rightly come to
the conclusion that the plaintiff is entitled to specific performance. Hence, opposed
the appeal.
7. In light of the above submissions, now, the points arises for consideration
are as follows:
(i) Whether the agreement dated 27.12.1997 is true and valid? If so, whether, the
plaintiff was ready and willing to perform his part of contract?
(ii) Whether the plaintiff in O.S.No.162 of 2014 is entitled for permanent
injunction as prayed for?
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Point (i)
8. The suit has been proceeded as if the first defendant has executed a sale
agreement for sale of the property, i.e., housing property allotted under the Tamil
Nadu Housing Board for a total sale consideration of Rs.3 lakhs and received a
sum of Rs.2.50 lakhs and agreed to execute the sale within a period of 6 months
after the sale is executed in favour of the defendant by the Tamil Nadu Housing
Board. It is the further case of the plaintiff that he was put in possession of the
property as a part performance of contract. However, in the year 2012, he was
called to police station on the basis of complaint lodged by the defendant against
him for trespassing into the property, only, thereafter, he came to know about the
execution of the sale deed in favour of the defendant by Housing Board. Hence, the
plaintiff issued a legal notice and thereafter, the suit was laid. Whereas, the
defendant has denied the execution of the agreement and it is the contention of the
defendant that the plaintiff has trespassed into the suit property taking advantage of
the death of one Sundaram and also inducted one Munusamy as a tenant.
9. In light of the above submissions, now, it has to be seen whether Ex.A1
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has been properly executed for sale of property. The conduct of the parties assumes
significance in deciding the nature of the contract and its genuineness etc., It is the
admitted case that the subject property was originally alloted to the first defendant
under Ex.B15. Ex.B15 when carefully perused, house was alloted under MIG and
House No.65 was alloted to the first defendant by order dated 14.03.1988 and the
first defendant was directed to pay the monthly installments for certain period.
Proceedings under Ex.B15 makes it clear that House No.65 has been specifically
mentioned. It is the case of the plaintiff that in the year 1997, an agreement came
to be executed by the plaintiff for sale of the suit property. From the evidences
itself, it is very clear that plaintiff in O.S.No.173 of 2012 is also having two or
three Housing Board houses in the same locality. These facts are relevant to
determine the validity of the agreement particularly in view of the various
circumstances available on record. Though the defendant's stand that the plaintiff
has trespassed the suit property after the suicide of one Sundaram in the suit house
is concerned, that defence appears to be only an afterthought for the simple reason
that said Sundaram has not died in the suit property. Ex.A23/FIR in Cr.No.171 of
1999, Erode South Police Station filed in this regard, clearly shows that Sundaram
died in Pallipalayam in house belonging to some third parties. The very defence
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that Sundaram died in the suit property and his body was removed from the suit
house has not been established.
10. Therefore, now it has to be seen mere one circumstances pleaded by
defendant is found to be false will that fact alone absolve the plaintiff from proving
the genuineness of Ex.A1/sale agreement is concerned. This Court is of the view
that merely one such circumstances pleaded by the defendant is found against
them, the same will not absolve the plaintiff from proving the genuineness of the
contract. It is specific case of the plaintiff that agreement came to be executed on
27.12.1997 and he was put in possession of the property. When Ex.A1 carefully
perused, it never indicates that possession was given as part performance of
contract on the date of agreement. There was no whisper whatsoever in the
agreement as to handing over of possession on the date of agreement. Further, in
the schedule of properties, door number of the house is conspicuously absent.
Admittedly, the plaintiff is already having houses in the Housing Board in the
same locality, this Court is of the view that when he is intended to purchase the
property having known the specific property alloted to the defendant, normal
human conduct would be to include the door number of the house in the schedule
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of property, however, that has not been done so.
11. Be that as it may, it is the case of the plaintiff that both the plaintiff and
defendant was residing in Tiruchengode, i.e., Kadaichanallur. When both of them
were residing in the same place, there was no necessity for one of the party to go to
Uthangarai to purchase the stamp paper. It is relevant to note that it is established
on record that the stamp vendor, who has sold the stamp paper has already
proceeded for criminal case and several registers have already been seized and
handed over to the concerned Court. Therefore, the factum of purchase of stamp
paper in Uthangarai when both parties admittedly residing in Tiruchengode cannot
be ignored altogether in light of the following discussions
12. It is relevant to note that on the date of agreement, i.e., 27.12.1997,
proper stamp duty for any agreement of sale is only Rs.10/-. Rs.10/- has been
enhanced to Rs.20/- only by way of an amendment by the Tamil Nadu Act 9 of
2001 with effect from 11.07.2001. Therefore, when the stamp duty is only for
Rs.10/- at the relevant point of time, i.e., 1997, there was no need to purchase
Rs.20/- stamp paper. In fact, stamp duty has been enhanced only in the year 2001.
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These facts also creates serious doubt about the very genuineness of the agreement.
It is further fortified by the following facts.
13. On perusal of the Ex.A1, it would makes it clear that signature found in
the document is in same ink. Normally, when the document writer prepares the
document, her name would be typed, whereas, writing her name in ink later is
against the normal conduct. Further, agreement reads as if the vendor resides in the
suit property, which also creates serious doubt for the simple reason that vendor
Radhakrishnan as per the admission of PW1 itself shows that he left the place in
the year 1992, thereafter, PW1 does not know where the defendant Radhakrishnan
residing. These facts cannot be ignored altogether.
14. The plaintiff, according to him, after he was put in possession of the
property in the year 1997, he has been paying the taxes and also paid the
installments in the name of the himself and the first defendant. It is relevant to note
that Ex.A2 series shows that tax receipts have been issued in the name of the
plaintiff for the period of 2000 – 2012. It is also the specific case of the plaintiff
that he has spent Rs.3.5 lakhs in the suit property by way of improvement in the
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year 2006 with the knowledge of the first defendant. When such positive assertion
is made in the plaint and in light of the evidence, this Court is of the view that
contention of the defendant that agreement has been fabricated is more probable. In
the cross examination of the PW1, the evidence of PW1 is that he did not know
when Radhakrishnan retired, where he is residing presently and also admitted that
whenever he receives a communication from the Housing Board, he has handed
over such communication to Radhakrishnan. It is relevant to note that when the
plaintiff has not even aware where Radhakrishnan is residing even after 1992 after
his retirement, handing over the communication received from the Housing Board
to the deceased first defendant is highly improbable.
15. Further, the important statement of the plaintiff in the plaint when
carefully seen, according to him, he has received a communication namely Ex.A5
series dated 31.12.2002 from the Housing Board demanding payment of sum of
Rs.75,000/-. On perusal of the above communication, it makes it clear that
Housing Board has demanded an additional amount with interest, whereas, it is the
case of the plaintiff that the plaintiff has paid the said amount of Rs.75,000/- to the
Housing Board through the first defendant. It is relevant to note that when the
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plaintiff was able to produce certain receipts from the Housing Board in the name
of the deceased first defendant under Ex.A6 series, if the entire Rs.75000/- is paid
by him to the Housing Board through the first defendant, the normal conduct of
human being is to demand receipt from the Housing Board for such huge amount.
It is relevant to note that the very statement of the plaintiff that he has paid a sum
of Rs.75000/- to the first defendant for the payment towards Housing Board is
highly improbable for the simple reason that his evidence clearly indicate that he
does not know where the first defendant was residing after 1992. He also clearly
admitted that he has not sent any communication to the deceased first defendant
thereafter. Therefore, the very pleadings that a sum of Rs.75,000/- is paid in
pursuant to the communication dated 31.12.2002 to the Housing Board through the
first defendant cannot be held to be true for the simple reason that his own witness
namely PW3 in his evidence has stated that amount of Rs.75000/- is paid to him
and he has in turn handed over to his father. These two contradictory evidence
clearly show that the contention of the plaintiff has not been established.
16. PW3 was examined to prove the execution of the document by the first
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defendant. Though he has stated in his evidence that he was present while the
document was signed by the first defendant. His evidence when seen, it would
indicate that at the instruction of his father, he signed the document. According to
him, the plaintiff used to give installments to him and he will receive the amount
and hand over to his father. According to him, plaintiff has paid a sum of
Rs.75,000/- and Rs.10,000/- and he has handed over to his father. Whereas, the
evidence of PW1 clearly indicate that sum of Rs.75,000/- was paid to the first
defendant. These facts creates serious doubts about the entire transactions. It is
relevant to note that it is the specific evidence of PW3 that his father died in the
year 2001, this itself falsify his statement that the plaintiff has paid a sum of
Rs.75000/- to him and he has handed over to his father. The stand of the plaintiff
that sum of Rs.75000/- has been paid in pursuant to the communication dated
31.12.2002. Therefore, PW3 statement that the plaintiff has paid the said amount to
him and he has handed over to his father, who had died in the year 2001 itself
makes it clear that his evidence is highly improbable and an after thought.
17. Therefore, merely on the basis of certain communication addressed by
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the Housing Board where the plaintiff somehow or other came to the house, it
cannot be said that agreement is genuinely established by the plaintiff. It is relevant
to note that according to the plaintiff on 31.12.2002, he had paid Rs.75,000/- to the
Housing Board through the first defendant. If that amount is taken note of and the
entire amount is cleared to the Housing Board through the first defendant in the
year 2002 itself, adding this to the so-called advance amount, the plaintiff appears
to have paid more than the sale consideration, i.e., 3,25,000/-. This Court is of the
view that if the plaintiff had paid such huge amount, will the plaintiff keep quite
for further 10 years without even making any enquiry as to the nature of the
document till he was summoned to the police station in the year 2012. This is also
against the normal human conduct.
18. The Trial Court without considering the above and appreciating the
evidences of PW1 and PW3 has held that Ex.A1 is proved. It is relevant to note
that the Trial Court has compared the document and assumed the role as appellate
authority to the expert opinion and compared Ex.A1 and Ex.B12. It is relevant to
note that the signature of a person will change or vary with the passage of time.
Comparing signature with two different period by naked eye will not give a
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conclusive result. In such circumstances, the Court venturing to compare the
signatures of different period by naked eye without any expertise of knowledge is
not prudent. The Trial Court has committed fundamental error by comparing the
documents of different ages. Whereas, the Ex.A1 is of the year 1997 and the same
has been compared with a document of the year 2012.. Therefore, the Trial Court
coming to the conclusion that signature found in both the document are one and the
same in view of this Court is not correct, in fact, the expert opinion in Exs.C1 to
C3, expert has given an opinion to the effect that on the basis of the present
standard material, it is not possible to offer any reliable opinion on the red enclosed
signatures stamped and marked Q1 to Q3 on a comparison with the red enclosed
signatures similarly stamped and marked A1 to A27.
19. When the experts themselves were unable to give any opinion on the
disputed signature even in their expertise, the Trial Court by merely comparing the
signatures has come to the conclusion without any proper reasons that the character
of the signatures are completely similar to each other. Such a finding of the Trial
Court is nothing but perverse in view of this Court.
20. In this regard, the Hon'ble Supreme Court in the case of Thiruvengada
Pillai v. Navaneethammal reported in AIR 2008 SC 1541 has held as follows:
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“ 17. The decision in Murari Lal [(1997) 7 SCC 110 : 1997
SCC (Cri) 992] and Lalit Popli [(1980) 1 SCC 704 : 1980 SCC (Cri)
330] should not be construed as laying a proposition that the court is
bound to compare the disputed and admitted finger impressions and
record a finding thereon, irrespective of the condition of the disputed
finger impression. When there is a positive denial by the person who
is said to have affixed his finger impression and where the finger
impression in the disputed document is vague or smudgy or not clear,
making it difficult for comparison, the court should hesitate to venture
a decision based on its own comparison of the disputed and admitted
finger impressions. Further, even in cases where the court is
constrained to take up such comparison, it should make a thorough
study, if necessary with the assistance of counsel, to ascertain the
characteristics, similarities and dissimilarities. Necessarily, the
judgment should contain the reasons for any conclusion based on
comparison of the thumb impression, if it chooses to record a finding
thereon. The court should avoid reaching conclusions based on a
mere casual or routine glance or perusal.”
21. In the case on hand, the execution of the so-called sale agreement itself
is denied by the deceased first defendant in his written statement and the plaintiff
also did not establish the execution of contract. Accordingly, this Court is of the
view that the genuineness of the document has not been established. When a
person entering into a contract and does not even know where the seller resides and
having allegedly paid more than the agreed amount, keeping silent for more than
10 years without taking any action also creates serious doubt. That apart, the
manner in which the so-called payments projected is also totally contradictory in
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A.S.Nos.354 and 355 of 2022
evidence of PW1 and PW3. Further, the very stamp value of Rs.20/- was amended
as per amendment under Act Tamil Nadu Act 9 of 2001 only with effect from
11.07.2001 has been used in the so-called agreement which is of the year 1997.
Further, the person who has sold such stamp paper has been proceeded for criminal
action, files have been seized and handed over to the concerned Court, these facts
cannot be brushed aside altogether. When a person seeking relief of specific
performance of the contract has to first establish the genuineness of the contract,
when the genuineness of the contract has not been established and the document
creates serious doubt, even the slightest doubt arises as to the genuineness of the
contract, the relief of specific performance which was discretionary at the relevant
point ot time cannot be extended based on such doubtful agreement. Therefore,
merely, because the plaintiff has produced some receipt in his name, readiness and
willingness cannot be inferred when the very document/Ex.A1 itself has not been
established. Such view of the matter, the plaintiff is not entitled to relief of specific
performance.
22. It is also to be noted that it is the case of the plaintiff that the plaintiff
with the consent of the first defendant has spent a sum of Rs.3,75,000/- for the
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purpose of improvement of the suit property. Whereas, his evidence indicate that
the plaintiff was not even aware where the defendant was residing. Therefore,
plaintiff spending such amount towards improvement with the knowledge of the
defendant is also highly improbable. This Court is of the view that all these facts
dis-entitles the plaintiff for claiming specific performance. Further, merely,
because the defendant is not in a position to prove as to how the plaintiff came into
the suit property and their plea that plaintiff came into the possession, on the death
of one Sundaram has not been established that will not give absolute right to the
plaintiff to seek specific performance, plaintiff has to establish the genuineness of
the contract which has not been done so. Accordingly, this point is answered.
Point (ii)
23. As far as the suit against the grant of permanent injunction is concerned,
it is the admitted case of both sides that Munusamy is in occupation of the
property. Such view of the matter, as this Court is declined to grant the relief of
specific performance, there cannot be any permanent injunction against the true
owner. However, at the same time, true owner has to resort to due process of law to
evict the person who is in occupation of the property. Accordingly, this point is
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A.S.Nos.354 and 355 of 2022
answered.
24. In view of the above, the decree and judgment of the Trial Court
decreeing the suit in O.S.No.173 of 2012 for specific performance stands set aside
and the suit is dismissed. This Court is also not inclined to grant alternative relief
for the simple reason that all these years, the plaintiff was in possession and
enjoying the benefits, that apart, alleged improvement over the suit property is also
not established.
25. Similarly, the decree and judgment of the Trial Court decreeing the suit
in O.S.No.162 of 2014 for permanent injunction is set aside and the suit stands
dismissed. Since both the parties have admitted the occupation of Munusamy, the
true owner shall resort to due process of law in evicting the person who is in
occupation of the property.
26. In all, the appeal in A.S.No.355 of 2022 stands allowed and the appeal in
A.S.No.354 of 2022 stands allowed in above terms. The parties shall bear their
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respective costs throughout.
Consequently, connected miscellaneous petition stands closed.
05.03.2025
Index : Yes / No
Speaking/non speaking order
dhk
To,
1. The Sessions Judge
Sessions Fast Track Mahila Judge, Namakkal.
2. The Section Officer
VR Section, Madras High Court
N. SATHISH KUMAR, J.
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A.S.Nos.354 and 355 of 2022
dhk
A.S.Nos.354 & 355 of 2022
05.03.2025
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