Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27.08.2014 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL(MD)Nos.347 OF2009and 348 of 2009 Alagarsamy .Appellant in both Second Appeals versus 1.Ramamurthy 2.Minor Venkatesan rep.
by Ramamurthy, fiRs.respondent.
3.Saroja 4.Anbarasi .Respondents in both Second Appeals Second Appeals filed under Section 100 of the Code of Civil Procedure, 1908 against the Judgments and decrees dated 10.01.2003 passed in Appeal Suit Nos.49 of 2001 and 48 of 2001 by the Sub Court, Sivagangai confirming the Judgments and decrees dated 26.04.2001 passed in Original Suit Nos.119 of 1997 and 120 of 1997 by the Principal District Munsif Court, Sivagangai.
!For Appellant : Mr.S.Subbiah in both Second Appeals ^For Respondents : Mr.V.Kannan in both Second Appeals :COMMON JUDGMENT
Challenge in these second appeals is to the concurrent Judgments and decrees passed in Original Suit Nos.119 and 120 of 1997 by the Principal District Munsif Court, Sivagangai and in Appeal Suit Nos.49 and 48 of 2001 by the Sub Court, Sivagangai.
2.The appellant herein in both the second appeals as plaintiff has instituted Original Suit Nos.119 and 120 of 1997 on the file of the trial Court for the relief of specific performance on the basis of written sale agreement dated 22.07.1987 as well as oral agreement dated 20.03.1990, wherein the respondents have been shown as defendants.
3.In the plaint filed in Original Suit No.119 of 1997, it is averred that the suit property is the absolute property of a Hindu joint family consisting of the defendants and their father by name Aathappan.
The said Aathappan and fiRs.defendant have jointly executed the suit sale agreement dated 22.07.1987 in favour of the plaintiff for a sum of Rs.25,000/- and thereby agreed to sell the suit property in his favour and in pursuance of the same, possession of the suit property has been given to the plaintiff and despite of repeated demands made by the plaintiff, the said Aathappan and fiRs.defendant have not come forward to execute a sale deed in favour of the plaintiff and ultimately in the year 1997, a legal notice has been given to the defendants and even after receipt of the same, the defendants have failed to execute a sale deed in favour of the plaintiff.
Under the said circumstances, the present suit has been instituted for the relief sought for in the plaint in Original Suit No.119 of 1997 and it is also averred in the plaint filed in Original Suit No.120 of 1997 that an oral sale agreement has come into existence on 20.03.1990 in between the plaintiff, fiRs.defendant and his father Aathappan so as to sell the suit property and the said Aathappan has passed away in the year 1995 and since the defendants have failed to execute a sale deed in favour of the plaintiff, Original Suit No.120 of 1997 has been instituted for the relief sought for therein.
4.In the written statements filed on the side of the defendants in both the suits, it is averred that the suit sale agreement dated 22.07.1987 is nothing, but a forged document and no such sale agreement has been executed by the fiRs.defendant and his father by name Aathappan.
It is also equally false to say that on 20.03.1990, an oral sale agreement has come into existence in between the plaintiff, fiRs.defendant and his father Aathappan.
The plaintiff is not entitled to get a relief of specific performance and therefore both the suits are liable to be dismissed.
5.On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suits.
Against the Judgment and decree passed in Original Suit No.119 of 1997, Appeal Suit No.49 of 2001 and against the Judgment and decree passed in Original Suit No.120 of 1997, Appeal Suit No.48 of 2001 have been preferred on the file of the fiRs.appellate Court.
6.The fiRs.appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed both the appeals and thereby confirmed the Judgments and decrees passed by the trial Court.
Against the concurrent Judgments and decrees passed by the Courts below, the present second appeals have been preferred at the instance of the plaintiff as appellant.
7.As agreed by the learned counsel appearing for both sides, these second appeals are disposed of on merits at the stage of admission.
8.In Second Appeal No.347 of 2009, on the side of the appellant/plaintiff, the following substantial questions of law have been raised for consideration: a)When the signatures are disputed as one appearing in the suit document and other documents is it not the duty of the Court to send the disputed signature for comparison by an expert?.
b)When the defendants himself had not produce any document to enable the Court to compare the signatures found in the disputed document whether any adveRs.inference could be drawn as against the defendant for not producing any document to enable the Court to compare the signatures?.
c)When the custody of the document Exhibit A.14 a statement given by the deceased can the Court without any rebuttal evidence from the defendants can the Court reject the document as one fabricated without any evidence contrary?.
d)The revenue records produced by the plaintiff supporting his plea of granting possession of the suit property to him by the vendor show the possession of the suit property was with the plaintiff, be not such a factor is relevant for the consideration of the oral agreement of sale in favour of the plaintiff?.
9.In Second Appeal No.348 of 2009, on the side of the appellant/plaintiff, the following substantial questions of law have been raised for consideration: a)In a suit for specific performance based upon a oral agreement, when there are probabilities of the matter in favour of the plaintiff can the Court apply the principle of strict proof, by treating the civil dispute as one of a criminal nature?.
b)When the passing of the consideration under an oral agreement of sale had been proved by the plaintiff by producing the letter admitting the receipt of the amount, whether the onus of proof shifts upon the defendants to show that the amount stipulated therein could not be referable to the sale consideration?.
c)The revenue records produced by the plaintiff supporting his plea of granting possession of the suit property to him by the vendor show the possession of the suit property was with the plaintiff, be not such a factor is relevant for the consideration of the oral agreement of sale in favour of the plaintiff?.
10.Before analysing the rival submissions made on either side, the Court has to narrate the following admitted facts.
It is an admitted fact that the suit property is the absolute property of a Hindu joint family consisting of the defendants and their father by name Aathappan.
11.The specific case putforth on the side of the appellant/plaintiff in Original Suit No.119 of 1997 is that both the fiRs.defendant and his father by name Aathappan have jointly executed the sale agreement dated 22.07.1987 in favour of the plaintiff and thereby agreed to sell the suit property for a sum of Rs.25,000/- and even on the date of its execution, the plaintiff has paid the entire sale consideration.
12.The specific case putforth on the side of the appellant/plaintiff in Original Suit No.120 of 1997 is that on 20.03.1990, both the fiRs.defendant and his father by name Aathappan and the plaintiff have entered into an oral sale agreement and thereby agreed to sell the suit property in favour of the plaintiff.
13.Both the Courts have concurrently found that the suit sale agreement is nothing, but a concocted document.
14.The suit sale agreement filed in Original Suit No.119 of 1997 has been marked as Ex.A.1.
Ex.A.1 has come into existence on 22.07.1987, wherein it has been clearly stated that the sale consideration has been fixed at Rs.25,000/- and the entire amount has been paid by the plaintiff.
The present suit has been instituted in the year 1997.
It is true that prior to institution of the present suit, a legal notice has been issued by the plaintiff in the year 1997.
15.The only reason assigned on the side of the appellant/plaintiff for not getting a sale deed from the fiRs.defendant and his father is that the said Aathappan has passed away.
Admittedly, the said Aathappan has passed away in the year 1995 and Ex.A.1 has come into existence in the year 1987.
If really Ex.A.1 is a genuine document and if really the plaintiff has given the entire sale consideration of Rs.25,000/- to the fiRs.defendant and his father, definitely he would not have remained silent without getting a sale deed registered.
16.The learned counsel appearing for the appellant/plaintiff has vehemently contended that in Original Suit No.120 of 1997, on the side of the plaintiff Ex.A.6 has been filed, wherein it has been clearly stated about the oral sale agreement dated 20.03.1990 and therefore Original Suit No.120 of 1997 is liable to be decreed.
17.The specific case putforth on the side of the appellant/plaintiff is that on 22.07.1987 with regard to selling of suit property, a written sale agreement has come into existence in between the plaintiff, fiRs.defendant and his father by name Aathappan.
If really such a sale agreement has come into existence, definitely the same would have found place in Ex.A.6 filed in Original Suit No.120 of 1997.
Therefore, it is quite clear that on the side of the plaintiff it has not been clearly established to the effect that Ex.A.1, suit sale agreement has actually come into existence in between the plaintiff, fiRs.defendant and his father by name Aathappan.
Further the plaintiff has miserably failed to establish that on 20.03.1990 an oral sale agreement has come into existence.
Even as per the case of the plaintiff with regard to selling of suit property, Ex.A.1 has come into existence in the year 1987.
under the said circumstances, question of creating oral agreement in the year 1990, does not arise.
18.The learned counsel appearing for the appellant/plaintiff has also contended that one of the witnesses found in Ex.A.1 has been examined in Original Suit No.119 of 1997 and in Original Suit No.119 of 1997, P.W.2 has been examined for the purpose of proving the alleged oral agreement and the Courts below without considering the voluminous evidence available on record on the side of the appellant/plaintiff have erroneously non-suited him in both the suits and therefore the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with.
19.It has already been pointed out that Ex.A.1 filed in Original Suit No.119 of 1997 is not at all a genuine document and likewise the oral sale agreement mentioned in Original Suit No.120 of 1997 cannot be believed in.
Therefore virtually the plaintiff has failed to establish his case.
Further the plaintiff has not averred and proved that he is always ready and willing to perform his part of contract.
Therefore viewing from any angle, the contention putforth on the side of the appellant/plaintiff in both the proceedings is not factually and legally sustainable.
20.The Courts below after evaluating the available evidence on record have rightly non-suited the plaintiff.
In view of the discussion made earlier, this Court has not found any acceptable force in the contentions putforth on the side of the appellant/plaintiff in both the proceedings and all the substantial questions of law raised on the side of the appellant/plaintiff are not having substance at all and altogether the present second appeals deserve to be dismissed.
21.In fine, these second appeals deserve dismissal and accordingly are dismissed without costs and the concurrent Judgments and decrees passed in Original Suit Nos.119 and 120 of 1997 by the Principal District Munsif Court, Sivagangai and in Appeal Suit Nos.49 and 48 of 2001 by the Sub Court, Sivagangai are confirmed.
To 1.The Sub Court, Sivagangai.
2.The Principal District Munsif Court, Sivagangai.