Madras High Court
Devaraj vs Selvaraj on 19 March, 2025
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A. No.179 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.03.2025
CORAM
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
S.A.No.179 of 2025
and
CMP.No.5161 of 2025
Devaraj ... Appellant
Vs
1.Selvaraj
2.Jayarani
3.Rajarathinam
4.Ramasamy ... Respondents
For Appellant : Mr.N.Manoharan
For Respondents : Mr.A.Arun
PRAYER: Second Appeal filed Under Section 100 of the Civil Procedure
Code, against the Judgment and decree dated 24.10.2024 made in
A.S.No.40 of 2023 on the file of the Principal District Court, Dharmapuri,
reversal of the Judgment and decree dated 10.10.2022 made in O.S.No.115
of 2014 on the file of the Principal Subordinate Court, Dharmapuri.
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S.A. No.179 of 2025
JUDGMENT
The appellant has filed this Second Appeal against the judgment and
decree of the learned Principal District Judge, Dharmapuri in A.S.No.40 of
2023 dated 24.10.2024 reversing the judgment and decree of the learned
Principal Subordinate Judge, Dharmapuri, in O.S.No.115 of 2014, dated
10.10.2022.
2. Heard Mr.N.Manoharan, learned counsel for the appellant, and
Mr.A.Arun, learned counsel appearing for the respondents, and perused the
material available on record.
3. For the sake of convenience, the parties herein are referred to as
they were ranked in the suit.
4. Challenging the reversal findings of the first appellate court, the
plaintiff has preferred this appeal. The Appellant herein is the Plaintiff in
Suit O.S. No. 115 of 2014 on the file of the Principal Subordinate Court,
Dharmapuri, and 1st Respondent in A.S. No. 40 of 2023 on the file of the
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Principal District Court, Dharmapuri. Challenging the reversal findings of
the learned First Appellate Judge, he has preferred this Second Appeal on
the following grounds.
i. The judgment and decree passed by the Ld. First Appellate Court is
against law, weight of evidence and all probabilities of the case.
ii. It is submitted that the Ld. first appellate court has gone into the
validity of the sale agreement (Ex.B3) which was the subject matter in the
previous suit for specific performance in O.S. No. 60 of 1997, which was
decreed and a sale deed was executed through court on 18.08.2010.
iii. It is submitted the Ld. First Appellate Court sat over the judgment
and decree dated 30.06.2003 made in O.S. No. 60 of 1997 (Ex.A3) instead
of deciding the judgment and decree made in O.S. No. 115 of 2014. The
procedure adopted by the Ld. 1st Appellate Court is not only erroneous and
also impermissible in law.
iv. It is submitted that even though an exparte decree and Judgment
was made in O.S. No. 60 of 1997, in law, it is a valid decree and judgment
unless and until it is set aside or reversed in the manner known to law.
v. It is submitted that the readiness and willingness on the part of the
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plaintiff in O.S. No. 60 of 1997 has been discussed in the present appeal
suit filed against O.S. No. 115 of 2014. The entire reasonings given in Para
Nos. 12 and 13 are totally perverse and against law.
vi. It is submitted that the possession is an incidental in a suit for
specific performance. The suit in O.S. No. 60 of 1997 was not filed for the
relief of permanent injunction simplicitor to invoke the bar under Sec. 53-A
of the Transfer of Property Act, whereas, it was filed for the relief of
specific performance.
vii. It is submitted that the sale deed dated 18.08.2010 is not in
dispute. It was executed by the court in O.S. No. 60 of 1997 and it is
presumed to be true and genuine under Sec. 114 (e) of the Evidence Act. In
fact, it has not been challenged by the defendants till this date.
viii. It is submitted that the sale deed dated 18.08.2010 executed in
EP No. 410 of 2004 in O.S. No. 60 of 1997 was duly registered and it is
presumed to be valid as per Sections 56, 58 to 60 of the Registration Act,
1908.
ix. It is submitted that the 1st defendant was set exparte. He was not
examined on the side of the defendants 2 to 4. No explanation given for his
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non-examination. Therefore, the Ld. Frist Appellate court ought to have
drawn adverse Inference under Sec. 114(9) of the Evidence Act.
x. It is submitted that not only the 1st defendant and also the
defendants 2 and 3 were exparte in O.S. No. 60 of 1997 and equally in EP
No. 410 of 2004. If the defendants 2 and 3 had bonafidely purchased the
property from the 1st defendant, they could have contested the said sult
diligently.
xi. It is submitted that the judgment and decree in O.S. No. 60 of
1997 and the orders made in EP No. 410 of 2004 had attained finality. Its
validity is not under challenge. Therefore, the Ld. First Appellate Court
ought to have refrained from deciding its validity in the present appeal.
xii. It is submitted that there is no reference about Ex.B6 to Ex.B8 in
the written statement filed by the defendants 2 and 3. No amount of
evidence could be looked into in the absence of pleadings. Therefore,
Ex.B6 to Ex.B8 are liable to be eschewed.
xiii. It is submitted that Ex.B9 and Ex.B10 are not related to the suit
property. The 4th defendant is not a bonafide purchaser for value. He had
acted in aid of the defendants 1 to 3. There is no bonafideness on the part of
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the defendants.
xiv. It is submitted that the Ld. First Appellate Court has not adverted
to the reasons given by the Ld. trial Court as per the mandate of Order 41
Rule 31 CPC.
xv. The other reasons given by the Ld. First Appellate court are not
correct and unsustainable in law.
5. By submitting the above grounds, the learned counsel for the
Appellant contends that the following substantial question of law is
involved in this matter.
"a) Has not the Ld. First Appellate Court erred in
testing the validity of the judgment and decree dated
30.07.2003 made in O.S. No. 60 of 1997 (Ex.A3 and Ex.A4), in
the appeal suit in A.S. No. 40 of 2023 filed against another
suit in O.S. No. 115 of 2014, in the absence of any challenge
made against Ex.A3 and Ex.A4 in the manner known to law?
b) Whether the Ld. First Appellate court is right in
holding that the unregistered sale agreement dated
06.10.1994 (Ex.B3) is hit by Sec. 53-A of the Transfer of
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Property Act, 1882, especially when the suit for specific
performance on the basis of Ex.B3 was decreed and a sale
deed dated 18.08.2010 executed in E.P. No. 410 of 2004 in
O.S. No. 60 of 1997?
c) Has not the Ld. First Appellate Court went wrong in
sitting over the judgment and decree in O.S. No. 60 of 1997
(Ex.A3 and Ex.A4), when there was no application to set aside
the exparte decree or appeal suit filed by the defendants
therein?
d) Whether the judgment of the Ld. First Appellate
Court is perverse for ignoring the principles of constructive
res judicata and issue estoppel besides the bar under Order 41
Rule 31 CPC?"
6. To substantiate his arguments, the learned counsel has relied on
the following authorities.
i. 2007 (8) SCC 329, Saroja Vs. Chinnusamy (dead) and ors.
ii. 2019 (3) SCC 520, Vijay A Mittal and ors. Vs. Kulwant Rai (dead)
and anr.
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iii. 2015 (5) SCC 223, Rathnavathi and anr. Vs. Kavita
Ganashamdas.
iv. 2017 (9) SCC 622, Nadiminti Suryanarayan Murthy (dead) Vs.
Kothurthu Krishna Bhaskara Rao and ors.
7. In reply, the learned counsel appearing for the Respondents argues
that the trial court, based on mere assumptions and presumptions,
erroneously decreed the suit in favour of the Plaintiff. This was rightly set
aside by the learned First Appellate Judge, who independently analyzed the
oral and documentary evidence on record and rightly held that the suit is
not maintainable. He submits that the findings of the learned First Appellate
Judge require no interference by this Court.
8. Furthermore, the Respondents' counsel pointed out that the
Plaintiff was not in possession of the suit property, nor did he produce any
document to prove possession, which is a mandatory requirement to obtain
relief of declaration and permanent injunction. He failed to establish
possession or any valid title over the suit property, which was rightly
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concluded by the learned First Appellate Judge.
9. Additionally, the decree obtained by the Plaintiff in the earlier suit,
O.S. No. 60 of 1997, is also tainted with illegality, which was duly
considered by the learned First Appellate Judge while dismissing the
present suit. Therefore, no substantial question of law arises in this case.
Hence, he prays for the dismissal of the Second Appeal, relying on the
following authorities:
(i) Ayyavoo Vs. Dharmalingam, 2019 SCC Online Mad 19527
(ii) R. Stella Vs. V. Antony Francis, 2019 (3) MWN (Civil) 647
10. Brief Facts of the Case:
The Appellant, as Plaintiff, filed Suit O.S. No. 115 of 2014 against
four Defendants before the trial court, seeking a declaration of his right and
title over the suit property and a permanent injunction restraining the
defendants from interfering with his possession and enjoyment of the suit
property as described in the plaint schedule. According to the Plaintiff, he
entered into a sale agreement with the first Defendant on 06.10.1994.
However, the first Defendant subsequently evaded execution of the sale
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deed by colluding with Defendants 2 and 3. Consequently, the Plaintiff
filed a suit for specific performance in O.S. No. 60 of 1997 against all the
Defendants. Upon receiving notice, in that suit defendants 1 to 3 did not
contest the case and remained ex-parte. An ex-parte decree was granted in
favour of the Plaintiff on 30.07.2003. After obtaining the decree, the
Plaintiff deposited the balance sale consideration in court to enable
execution of the sale deed. Thereafter, he filed Execution Petition E.P. No.
410 of 2004, pursuant to which, on 18.10.2010, the court executed the sale
deed in his favour. The Plaintiff claims that possession of the suit property
was handed over to him on the date of the agreement. Therefore, as of date,
he contends that he is in possession of the suit property.
11. Subsequently, the second and third defendants claimed that they
have rights in the property and sold a portion of the property, to an extent of
1,266 square feet, in favour of the fourth defendant (D4) on 21.04.1997.
However, the said sale deed is not binding on the plaintiff and caused
interference. Therefore, the suit was filed for a declaration and to restrain
such interference.
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12. The second and third defendants contested the case stating that
they purchased the property from the first defendant in the year 1992 for
valid consideration and have been in possession of the property ever since.
They claim to be enjoying the property as absolute owners and assert that a
portion of the property was sold to D4 on 25.02.1997. In the remaining
extent of the property, a school and polytechnic were being run under a
lease. They denied that the plaintiff is in possession of the property.
13. Further, they submitted that they purchased the property from the
first defendant much earlier than the suit filed by the plaintiff in O.S. No.
60 of 1997. As of today, they claim to have valid right, title, and possession
of the property. They also alleged that the plaintiffs were aware of these
facts but suppressed those facts while approaching the court. They obtained
an ex parte decree by falsely stating that they were in possession of the
property, based on a purported sale agreement, and also failed to properly
describe the property. Therefore, the said decree is not binding on the
defendants, nor is it valid, it is a void decree. Based on that, the plaintiff is
not entitled to claim any right or title over the property, nor is he entitled to
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the relief of permanent injunction, as he is not in possession of the property.
14. The fourth defendant also raised objections similar to those of the
second and third defendants. He claimed to have purchased the property for
valid consideration on 21.04.1997 and stated that the remaining properties
were leased to the Vivekananda Trust. At no point was the plaintiff in
possession of the property. He alleged that, in order to extort money, the
plaintiff obtained an ex- parte decree by giving false information and
without paying the correct court fee. As of today, the properties have been
converted into house plots, and hence the plaintiff is not entitled to any
relief.
15. Considering submissions from both parties, the trial court framed
four issues,
"a. Whether the plaintiff is in possession and enjoyment of the
schedule property?
b. Whether the plaintiff is entitled for declaration of title to the suit
property?
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c. Whether the plaintiff is entitled for separate injunction restraining
the defendants from trespassing in the suit property?
d. Whether the sale deed executed by Sub Judge, Dharmapuri in REP
410/2004 is a void document?"
16. Both parties adduced oral and documentary evidence, on the side
of the plaintiff P.W.1 was examined and Ex.A1 to Ex.A4 were marked. On
the side of the defendants D.W.1 to D.W.5 were examined and Ex.B1 to
Ex.B17 were marked and on the side of Court Ex.C1 to Ex.C10 were
marked.
17. With regard to issues number 'b' and 'd', the learned trial judge,
upon considering the evidence on record, held that the plaintiff did not
produce the sale deed said to have been executed by the Court in E.P. No.
410 of 2024, nor did he produce any certified copy. However, he had
obtained an ex-parte decree against defendants 1 to 3 in an earlier suit, O.S.
No. 60 of 1997, wherein he sought the relief of specific performance. Based
on that decree, a sale deed was executed by the Court in execution
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proceedings.
18. Therefore, the plaintiff is held to have valid title to the property,
as the sale deed was executed in his favour in respect of the suit property.
However, due to the non-production of the alleged sale agreement
submitted in the earlier suit, the court was unable to determine whether it
was valid. Nevertheless, the notice issued by the plaintiff to the first
defendant (marked as Ex. B1) demanded execution of the sale deed, to
which the defendants replied (Ex. B4). Thereafter, earlier suit was filed, and
an ex parte decree was granted in favour of the plaintiff since the
defendants remained absent. Thus, the sale deed executed by the court was
conclude as valid.
19. Accordingly, the trial court declared that the plaintiff is the owner
of the suit property. In regard to the relief of permanent injunction, the
learned trial judge considered oral and documentary evidence, including
Exhibits B6 to B8, which are lease agreements executed in favour of
Vijayananda Educational Institution. After the cancellation of an earlier
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lease agreement, a new lease was executed (Ex.B6). However, the
defendants did not provide a proper explanation for these transactions. The
Encumbrance Certificate (Ex. B4), relied on by D4, does not reflect the
plaintiff's sale deed. Nonetheless, the defendants did not appear before the
court or raise objections in the earlier suit proceedings. Therefore, the
objections raised by them in the present suit are not acceptable. Moreover,
they did not take any steps to set aside the ex parte decree.
20. Furthermore, in the earlier suit, the plaintiff had pleaded that he
was in possession of the property, based on which the ex parte decree was
granted. Therefore, he is presumed to be in possession of the property.
Accordingly, the suit was decreed in his favour.
21. Challenging the said findings, the appeal was preferred by
defendants 2 to 4 in A.S. No. 40 of 2023 before the Principal District Court,
Dharmapuri. The learned First Appellate Judge, after considering the
evidence on record, framed the points for consideration as (i) Whether the
trial court is justified in coming to the conclusion that the
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respondent/plaintiff is having title to the suit property? (ii) Whether the trial
court is justified in coming to the conclusion that the respondent/plaintiff is
in possession of the suit property ? (iii) Whether the judgment and decree of
the trial court is in accordance with law or is liable to be set aside ?".
22. The learned First Appellate Judge observed that in the plaint
averments, the plaintiff did not mention anything about the earlier
agreement of sale through which he traces his title. However, the sale
agreement was produced as Ex.B4 by the contesting defendants. Upon
perusal, it was found that the sale agreement was executed on plain paper
and not on judicial stamp paper. The signatures of the parties are not found
on the first page but are allegedly present on the second page, after the
description of the property, bearing the signatures of D1 and the first
plaintiff.
23. Based on this document, the plaintiff filed a suit for specific
performance in O.S. No. 60 of 1997, and an ex-parte decree was granted in
his favor, which was marked as Ex.A3. A perusal of the said judgment
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findings reflect as follows "that the plaintiff was examined as P.W.1, and
Exs.A1 to A4 were marked, and the claim was proved. Accordingly, the
suit was decreed as prayed for. However, there was no discussion by the
Trial Court about the genuineness of the sale agreement, nor any finding
with regard to the plaintiff’s readiness and willingness to perform his part
of the contract.
24. Further, the plaintiff failed to explain why a two-year time period
was stipulated for the remaining sale consideration. Notably, within the six-
month period from the date of the alleged agreement, the plaintiff did not
take any steps. It was only on 04.04.1997, after the expiry of the six-month
period, that the plaintiff issued a notice. Meanwhile, the first defendant had
already sold the property to defendants 2 and 3 on 25.02.1997. Although
these facts were mentioned in the earlier plaint, they were not considered by
the learned Subordinate Judge, Dharmapuri, in O.S. No. 60 of 1997.
25. Despite this, the present defendants did not take steps to set aside
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the ex-parte decree nor did they participate in the execution proceedings.
Even so, the burden remained on the plaintiff to prove his case to avail the
remedy of specific performance as required under Section 16(2) of Specific
Relief Act. Indeed, the plaintiff did not even produce the sale deed
executed by the court in his favour in the present case. Defendants 2 to 4
did not admit the execution of the sale deed. On the contrary, they
contended that the said sale deed was obtained by suppressing the real facts
and categorically denied its execution. They also argued that the decree
obtained by the plaintiff in O.S. No. 60 of 1997 is a void decree. Under
such circumstances, the plaintiff was bound to prove his case but failed to
prove his right and title. Accordingly, issue no.1 was answered.
26. In respect of Issue No. 2, the learned Trial Judge held that the
plaintiff had not filed any document to show that he was in possession of
the suit property from the date of the sale agreement until the filing of the
suit.
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27. By relying on the ratio laid down in the case Ameer Minhaj vs
Dierdre Elizabeth (Wright) Issar on 4 July, 2018, in which stated as
follows:
"10. On a plain reading of this provision, it is amply
clear that the document containing contract to transfer the
right, title or interest in an immovable property for
consideration is required to be registered, if the party wants to
rely on the same for the purposes of Section 53A of the 1882
Act to protect its possession over the stated property. If it is
not a registered document, the only consequence provided in
this provision is to declare that such document shall have no
effect for the purposes of the said Section 53 of the 1882 Act.
The issue, in our opinion, is no more res integra."
28. The learned Judge held that, assuming that the plaintiff was in
possession of the property, if so the said agreement would require
registration in order to protect such possession under Section 53A of the
Transfer of Property Act. However, the agreement in question was not a
registered one.
29. Furthermore, while executing the sale deed, the court had
observed that the plaintiff was entitled to approach the Subordinate Court,
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Dharmapuri, to obtain possession of the suit property. This observation
itself indicates that the plaintiff was not in possession of the property.
Without considering these factual and legal aspects, the Trial Court decreed
the suit, which the First Appellate Court held to be erroneous, accordingly,
the appeal was allowed and the findings of the Trial Court were set aside.
30. Now, the learned counsel for the plaintiff, challenging the said
findings, has filed the present appeal. He argues that the observations made
by the First Appellate Court regarding the earlier ex-parte decree obtained
by him in O.S. No. 60 of 1997 are unwarranted for the reason that
Defendants 2 and 3, who were also parties in the suit, did not take any steps
to set aside the said ex-parte decree, as such, the decree is valid.
Consequently, the court executed the sale deed in his favor, making him the
absolute owner of the property relying the said decree the Trial Court
rightly granted the relief. However, the First Appellate Court erroneously
concluded that the said ex parte decree was void and not binding on the
defendants. Such a finding is perverse and liable to be set aside. The
learned counsel relied on the authority reported in 2007 (8) SCC 329 (Type
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C) to substantiate that even an ex parte decree is a valid decree.
"Civil Procedure Code, 1908 - Ss.2(2), 11 and Or.9 R.6
- Ex.parte decree - Binding effect of - When amounts to res
judicata - Effect of fraud or collusion in obtaining of ex-parte
decree - An ex-parte decree is as good and effective as a
decree passed after contest and would operate as res
judicaata on the same principles as a decree passed after
contest, unless the party challenging the ex-parte decree
satisfies the Court that such an ex-parte decree was obtained
by fraud or collusion."
31. In response, the learned counsel for the contesting respondents
submitted that the ex-parte decree obtained by the plaintiff in the earlier
suit, O.S. No. 60 of 1997, was granted without compliance with Order XX
Rule 4 CPC. Therefore, the decree is illegal and would not bind the
defendants, even if they remained ex-parte. For that contention, they relied
on the authority reported in 2019 (3) MWN (Civil) 647.
"CODE OF CIVII. PROCEDURE, 1908 (5 of 1908),
Order 20, Rule 4 -CONSTITUTION OF INDIA, Article 227 -
Court should state concise statement of case, points for
determination, decision thereon together with reasons for
such decision Cryptic Judgment, which does not satisfy above,
is ex facie illegal - Ex parte Decree and Judgment should also
satisfy such test - Ex parte Decree passed without compliance
of above factors not sustainable Court exercising powers
under Supervisory jurisdiction cannot ignore illegality of ex
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parte Decree Revision Petition filed against Order dismissing
Petition to condone delay in filing Application to set aside ex
parte Decree, liable to be allowed for ex parte Decree is
illegal as violating Order 20, Rule 4 -Delay condoned and
directions issued to Subordinate Court to set aside ex parte
Decree on Defendant depositing specified sum. (Paras 19 -
23)"
32. Considering both the submissions, it is true that the plaintiff
obtained an ex parte decree in O.S. No. 60 of 1997 against respondents 2
and 3. The said decree has not been set aside as of now. Based on the ex
parte decree obtained in O.S. No. 60 of 1997, the plaintiff executed the
decree and obtained a sale deed through execution proceedings. Based on
the said sale deed, he is now claiming right and title over the suit property.
Therefore, it clearly implies that the plaintiff is tracing his right and title
based on the alleged sale agreement executed by the first defendant in his
favour, dated 06.10.1994. After issuance of notice to defendants 1 to 3, the
said suit was filed and the ex parte decree was obtained.
33. As rightly pointed out by the counsel for respondents 1 to 3 /
defendants 2 to 4, the said ex parte decree is a cryptic order. The plaintiff
herein was examined as P.W.1 and Exhibits A1 to A4 were marked. The
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plaint was accepted, and a decree was granted. However, the law requires
that even an ex parte judgment must contain, in the event of the defendants
failing to appear in the suit, certain essential elements. The ex parte
judgment and decree shall include the statement of the case, points for
determination, and reasons for such decisions as required under Order XX
Rule 4(2) of the CPC. This implies that all the ingredients required under
Order XX Rule 4(2) must be present in the judgment. It casts a duty upon
the court to state its reasons on each issue. To that effect, he relied the
authority reported in 2019 (3) MWN (Civil) 647, in which stated as
follows:
"15. This Judgment suffers from two patent illegalities.
The first illegality is that the Judgment is not in confirmity
with Order 20, Rules 4 & 5 of the Civil Procedure Code, and it
is apparently, on the face of it illegal. The second illegality is
that the Judgment does not even say what is the balance
amount that has to be deposited by the Plaintiff. There is no
indication to show that the Court had taken into consideration
the so called payment of a sum of 24,50,000 claimed to be paid
by the Plaintiff to Ashok Kumar Chordia. There is absolutely
no proof for the said payment and the Court has also not
given any findings regarding the same. The minimum
requirement for a Suit for Specific Performance, namely, the
readiness and willingness that requires to be proved, has not
even been dealt with in the Judgment.
16. ......
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17. The above said facts, which pertains to mandatory
legal requirements, ought to have been considered by the
Court below, while deciding the Application filed for
condoning the delay in filing the Petition to set aside the ex
parte Decree."
34. Considering the said legal proposition and upon perusal of the ex
parte decree marked as Ex.B3, it is only a cryptic order. There is no framing
of issues with regard to the readiness and willingness of the plaintiff, nor
there is any issue regarding the plaintiff’s possession. Also, no issues were
framed regarding the alleged purchase made by the second and third
defendants in that suit. Without any discussion or adjudication, the learned
trial judge simply passed a cryptic order. Therefore, the said ex parte decree
is not legally valid, as it does not comply with the requirements of Order
XX. The said decree is therefore illegal under Order XX Rule 4, and the
same was rightly observed by the learned first appellate judge. However,
the learned trial judge failed to appreciate these legal principles, especially
when there was an apparent error on the face of the record.
35. Hence, the decree suffers from illegality, and when there is an
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error apparent on the face of the record, the first appellate court is right in
testing the validity of the judgment and decree passed in O.S. No. 60 of
1997. Accordingly, question of law A and C are answered.
36. The learned counsel for the appellant also contended that based
on the ex parte decree, the sale deed was executed. Therefore, the first
appellate judge has no right to hold that the unregistered document relied
upon by the plaintiff (Ex.B3) attracts Section 53A of the Transfer of
Property Act, as such, that observation is unwarranted and beyond the
scope of the relief claimed in the plaint. Hence, prayed to set aside the
findings of the 1st appellate court.
37. Upon perusal of the records, it is seen that the plaintiff filed a
suit, O.S. No. 60 of 1997 (originally O.S. No. 33 of 1997) in the vacation
court. This was later renumbered as O.S. No. 60 of 1997. The plaintiff
claimed that he was in possession of the property based on a sale
agreement. In that suit, he prayed for two reliefs: one for specific
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performance, and another seeking an injunction restraining interference.
38. However, as rightly pointed out by the counsel for the
respondents, no document was produced before the trial court in the earlier
suit to prove that the plaintiff was in possession and enjoyment of the suit
property from the date of the agreement. Despite the absence of
documentary evidence, the learned trial judge granted an ex parte decree as
prayed for.
39. While executing the sale deed, the Subordinate Court,
Dharmapuri, directed the plaintiff to approach the court of law to obtain
possession of the property. This itself clearly proves that the plaintiff was
not in possession of the property, contrary to his statement in the plaint.
Thereafter, the plaintiff filed the present suit for declaration and permanent
injunction, again claiming that he is in possession of the property.
40. In the earlier suit as well, he suppressed the real facts of the case
and falsely stated that he was in possession of the property, thereby
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obtaining an ex parte decree without producing any document. The court
also erred in granting such a decree without proper application of mind.
However, it is a settled proposition that a litigant should not be suffer due
to the mistakes committed by the court. The present case falls also within
that category, since, although the defendants remained ex parte, the learned
trial judge ought to have verified the records.
41. Further, the duty casted upon the plaintiff to approach the court
with clean hands, especially in suits seeking relief of specific performance
where such honesty is mandatory. As discussed above, the plaintiff was
never in possession of the property. Yet, in all courts, he falsely claimed
possession with an ulterior motive and misrepresented the facts. Therefore,
he did not approach the court with clean hands, instead abused the process
of law in an attempt to grab the property based on an unregistered sale
agreement, which, as observed by the learned first appellate judge, did not
even bear a signature on the front page.
42. Based on the said unregistered agreement, the plaintiff is
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claiming possession of the property. However, the law mandates that such
an agreement must be registered under Section 53A of the Transfer of
Property Act. Hence, while deciding the issue of permanent injunction
based on alleged possession, the learned first appellate judge rightly
analyzed that the plaintiff did not possess a valid agreement, and that the
ex-parte decree obtained was also illegal. Therefore, the findings rendered
by the learned first appellate judge on the issue of permanent injunction are
sustainable and requires no interference. Accordingly, Question of Law B is
answered.
43. The learned counsel for the appellant further submitted that the
plaintiff was the first agreement holder, and that the second and third
defendants colluded with the first defendant to create another sale
agreement. He argued that the sale deed executed in favour of the second
and third defendants would not bind the plaintiff. For this, he relied upon
the authority reported in (2024) 8 Supreme Court Cases 83, in which
stated as follows:
A. Contract and Specific Relief - Specific Relief Act,
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1963 - S. 19(b) Specific performance of agreement to sell -
Plea of bona fide purchase by subsequent purchasers i.e. after
execution of agreement to sell Impermissibility of, when
agreement to sell registered as required by law Deemed
constructive notice under S. 3 Expln. I TPA when registration
of agreement to sell is made compulsory by law - Principles
clarified
- Proper relief in such case that buyer under the prior
agreement to sell may claim i.e. grant of decree of specific
performance against such subsequent purchasers, rather than
Cancellation of the subsequent sale deeds - Reiterated."
44. Though the legal principle laid down in that case is acceptable, in
the present case, the facts differ. The plaintiff allegedly entered into a sale
agreement with the first defendant dated 06.10.1994. As per the agreement,
the sale deed was to be executed within six months, but the first defendant
failed to do so. The plaintiff issued notice on 04.04.1997 to defendants 1, 2,
and 3. However, defendants 2 and 3 replied that they had purchased the
property from the first defendant for valid consideration on 25.02.1997.
They also stated that the plaintiff was misusing the agreement dated
06.10.1994 by fabricating records, as they knew each other through prior
business dealings. Subsequently, the plaintiff filed the present suit, O.S. No.
33 of 1997, in May 1997, after the property had already been sold to
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defendants 2 and 3 in the month of February. The plaintiff was aware of
this sale at the time of filing the earlier suit, yet he failed to seek any relief
for cancellation of the said sale deed, either in the earlier suit or in the
present one.
45. The plaintiff merely approached the court for specific
performance while suppressing all these material facts. He falsely claimed
possession, although the sale deed in favour of defendants 2 and 3 had
already been executed. Therefore, the argument advanced by the plaintiff
that the sale deed in favour of D2 and D3 is not binding on him is not
acceptable. As on date, the sale deed stands in the name of defendants 2 and
3 and is still valid.
46. As rightly observed by the learned first appellate judge, the
plaintiff claimed right and title based on the sale deed executed by the court
in pursuance of an ex-parte decree obtained in O.S. No. 60 of 1997. This
decree was not even produced before this court, which further supports the
conclusion that the plaintiff did not approach the court with clean hands.
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47. In his earlier plaint, the plaintiff claimed to be in possession of
the property, but he did not produce any documentary evidence to prove the
same. In the present suit too, he claims both right and possession without
producing any document. The learned first appellate judge rightly held that
the plaintiff failed to prove his case.
48. However, the learned trial judge had presumed possession of the
property without considering the legal lacunas on the side of the plaintiff.
Thus, the learned first appellate judge rightly set aside those findings. The
appellate findings are not perverse and therefore need no interference.
Accordingly, Question of law D is answered.
49. Normally, this court does not interfere with factual findings of the
courts below. However, when such findings are perverse, interference is
justified. In this case, the trial court’s findings are indeed perverse and call
for correction.
50. Furthermore, the ex parte decree obtained in O.S. No. 60 of 1997
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was secured by suppressing real facts. Even in an ex-parte matter, the
learned trial judge ought to have applied judicial mind but failed to do so.
No litigant should benefit by suppression upon the court. It is a settled
proposition of law that abuse of process can be addressed at any stage.
51. In the present case, the plaintiff was never in possession of the
property. Yet, he continues to seek relief from the year 1997, while
suppressing material facts. Therefore, the observations made by the learned
first appellate court are justified and require no interference.
52. Accordingly, the appeal is dismissed as devoid of merit with
exemplary cost of Rs.50,000/- pay to the Tamil Nadu legal Service
Authority, Chennai, within 12 weeks. Consequently, connected
miscellaneous petition is closed. There shall be no order as to costs.
19.03.2025
Index : Yes/No
Neutral Citation : Yes/No
Speaking/Non Speaking order
rri
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To
1.The Principal Subordinate Judge, Dharmapuri.
2.The Principal District Judge, Dharmapuri,
3.The Section Officer, VR Section, High Court of Madras.
T.V.THAMILSELVI, J.
rri
and
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19.03.2025
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