R.Elumalai v. M.Singara Mudaliar & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 08.02.2008CORAM:The Honourable Mr.Justice S.TAMILVANANA.S.No.681 of 1996R.Elumalai... Appellant/Plaintiff-vs-1.M.Singara Mudaliar2.Raju3.Sampath... Respondents/Defendants Appeal is filed under Section 96 of C.P.C. against the Judgment and Decree dated 16.04.1993 made in O.S.No.14 of 1990on the file of the Subordinate Judge, Kancheepuram. For Appellant : Mr.S.D.N.Vimalanathan For Respondent-2 : Mr.S.S.Balasubramaniam For Respondents 1 & 3 : No AppearanceJUDGMENTThis appeal has been preferred against the Judgmentand Decree dated 16.04.1993 made in O.S.No.14 of 1990 on the file of the Subordinate Judge, Kancheepuram.

The appellant herein was the plaintiff in the suit before the Trial Court. The suit was filed seeking a decree for specific performance of contract of sale of the schedule mentioned property and alternatively for return of the advance amount paid towards balance of sale consideration to the firstrespondent/D1 with interest and costs and also for permanent injunction restraining the respondents from any way interfering with the peaceful possession and enjoyment of the suit property as a cultivating tenant and also for costs of the suit.

It is seen that the first respondent/D1 remained absent before the Trial Court. Considering the oral and documentary evidence and also the arguments advanced by both sides, the Trial Court partly decreed the suit as against the first respondent herein and directed him to return Rs.10,500/- to theappellant/plaintiff with regard to the other prayer of the suit, the same was dismissed with costs. Aggrieved by the said https://hcservices.ecourts.gov.in/hcservices/ judgment, this appeal has been preferred. Even in this appeal there is no representation for the first respondent.

As per the case of the appellant herein, he has been the tenant of the suit property, an agricultural land, and that he entered into a oral agreement for sale, with the first respondent, in order to purchase the property for the sale consideration of Rs.45,000/-. As per the oral agreement, on06.03.1988, the first respondent had received Rs.1,000/-from the appellant and subsequently received Rs.10,500/- in the presence of witnesses and handed over a letter, acknowledging the receipt of the said amount and also oral agreement between himself and the appellant. According to the appellant, the second respondent being his nephew had knowledge about the agreement of sale entered into between the appellant and the first respondent and he had also been an attestor to the unregistered lease deed dated 06.03.1988 entered into between the appellants and the first respondent. According to the appellant, the first respondent has colluded himself with the second respondent and executed a sale deed in favour of the second defendant while the agreement between the appellant and the first respondent was inexistence.

According to the learned counsel for the appellant, the sale deed executed by the first respondent in favour of the second respondent was only a sham and nominal document so as to deceive the claim of the appellant and therefore, based on the oral agreement the appellant is entitled to get a decree for specific performance of the contract through Court of law and also for permanent injunction against the respondents as cultivating tenant. It is also submitted by the learned counsel that no dispossession can be made in the suit property unless under due process of law. In support of his contention the appellant has examined himself as P.W.1 apart from examiningP.Ws.2 to 4 and marking Exs.A1 to A5 before the trial court. Thesecond respondent examined himself as D.W.1, apart from markingExs.B1 to B23. The appellant, as P.W.1 has deposed that he has been the cultivating tenant of the suit property and as such, he entered into the oral agreement for sale with the first respondent to purchase the suit property for the sale consideration of Rs.45,500/- and also paid an advance ofRs.1,000/- towards part payment of consideration and subsequently paid Rs.10,500/- and hence totally paid Rs.11,500/-to the first respondent. Subsequently, the second respondent interfered with the possession and enjoyment of the suit property by the appellant and hence, the appellant lodged acomplaint before the police and also reported the matter to the village Panchayatars. https://hcservices.ecourts.gov.in/hcservices/

According to the appellant / P.W.1, Ex.A2 is the letter given by the second respondent in the presence of the witnesses and Panchayatars. The appellant has also produced Ex.A3, kistreceipt for the payment made by him on 13.12.1989. According to the appellant / P.W.1, though he was ready and willing to perform his part of the contract, as per the oral agreement of sale, the first respondent without performing his part of the contract executed a sale deed in favour of the second respondent. According to him, the second respondent had knowledge about the oral agreement of sale between the appellant and the first respondent and therefore, the appellant is entitled to a decree for specific performance as prayed for. Itis not in dispute that the appellant is the Maternal uncle of the second respondent and also brother of the secondrespondent's father-in-law. Though he denied his alleged signature available in Ex.A2, he has admitted in his cross examination that his father-in-law, Kannayiram has signed as one of the attestors to Ex.A2. P.W.2, has deposed that he was one of the witnesses for the oral sale agreement by which the first respondent had agreed to sell the suit property to the appellant for a sale consideration of Rs.45,500/- and received Rs.1,000/-as advance and part of the sale consideration.

According to P.W.3, he was a witnesses to Ex.A1 executed by the first respondent in favour of the appellant herein, for the receipt of Rs.10,500/- towards part payment of sale consideration, relating to the suit property. According to him, the second respondent had knowledge about the oral sale agreement entered with between the appellant and the first respondent and that he was one of a witnesses to Ex.A4. He has further deposed that in Ex.A5, unregistered lease agreement between the appellant and the first respondent, he along with the second respondent had signed as an attestor to the document. However, he has stated in the cross examination that though the first respondent was set ex-parte in the suit, he was also present in the Court during the trial of the case. According to him, the witness has also signed in Ex.B1, Sale Deed executed by the first respondent in favour of the second respondent. According to P.W.4, the appellant has been the cultivating tenant of the suit property, under the first respondent and that he was one of the signatory to Ex.A2 executed by the second respondent in favour of the appellant, in which the brother of the second respondent has signed as one of the witnesses.

Mr.S.D.N.Vimalanathan, learned counsel appearing for the appellant submitted that the appellant has established the facts that he has been the cultivating tenant of the suit property and also the fact that in the unregistered lease agreement, Ex.A5,dated 06.03.1988, relating to the suit property, the second respondent had signed as one of the attestors. Learned counsel https://hcservices.ecourts.gov.in/hcservices/ for the appellant further submitted that under Ex.A2, the second respondent has admitted the oral agreement between the appellant and the first respondent whereby the appellant had agreed to purchase the suit property for Rs.45,500/- and pay part of sale consideration of Rs.11,500/- was received by the first respondent on different dates and therefore, the appellant has established the alleged oral sale agreement between himself and the first respondent and also the fact that the second respondent had knowledge about the said oral sale agreement, on the date of his sale deed, Ex.B1.

Per contra, learned counsel appearing for the second respondent submitted that the second respondent is nothing to do with sale agreement, since he is not a signatory to the said document, Ex.A.1. Though the second respondent has denied the signatures in Ex.A2, it is seen that the attestors to the said document were also attestors to the sale deed, Ex.B1. Accordingto P.W.4, even the brother of the second respondent, P.Sampath, an employee in the Border Security Force was also a witness toEx.A2. The second respondent, as D.W.1 has not denied the alleged signature of his brother, but, he has replied that hedoes not know whether the signature in Ex.A.2 was the signature of his brother or not. The available evidence would clearly establish the fact that Ex.A2 had been executed by the second respondent to the first respondent on 14.12.1989, on the same date of Ex.B1, sale deed. In Ex.A2 the second respondent has admitted that the suit land is being cultivated by the appellant, as cultivating tenant and the second respondent has promised to clear the encumbrance with the appellant.

Mr.S.D.N.Vimalanathan, learned counsel appearing for the appellant submitted that the encumbrance, as stated inEx.A2, on the date of executing the sale deed, Ex.B.1, is referring to the alleged oral agreement between the appellant and the first respondent, otherwise, the first respondent could not have stated about the encumbrance with reference to the appellant, cultivating tenant of the suit property. It is clear that as per Ex.A2, the second respondent had knowledge on the fact that the appellant has been the cultivating tenant of the suit property. He is also an attestor to the unregistered lease agreement, Ex.A5 and further, as per Ex.A2, in the presence of the witnesses, who are also witnesses to Ex.B1, sale deed, the second respondent has agreed to clear the encumbrance with the appellant.

On the facts and circumstances, this Court can legally infer that the encumbrance, as stated by the second respondent, could be the right of the appellant as cultivating tenant of the suit property and not about the alleged agreement for sale between the appellant and the first respondent. On the side of https://hcservices.ecourts.gov.in/hcservices/ the second respondent, the sale deed executed by Kamatchammaland Dhamodharan in favour of one Thangammal on 16.01.1984, has been marked as Ex.B2, and the mortgage deed, dated 12.06.1967,has been marked as Ex.A3. The payment of electrical consumption charges relating to Thangammal has been marked as Ex.B9 to B12.The Exihibits, marked as Exs.B7, B9 and B16 to B19 are the documents subsequent to the sale deed, Ex.B1. As the issue involved in the suit and appeal are mainly based on the alleged oral sale agreement between the appellant and the first respondent, prior to the sale deed, Ex.B1, and the knowledge attributed on the second respondent about the same and therefore, the subsequent documents to the sale deed, Ex.B1, are not relevant to decide the issues involved in the dispute.

As per the oral and documentary and evidence available on record, the appellant has established that he had paidRs.11,500/- to the first respondent on two different dates. Thefirst respondent has not disputed Ex.A.1, letter, dated15.04.1989, wherein he has admitted that he had received a sum of Rs.1,000/- as initial advance and then, a sum of Rs.10,500/-.According to the learned counsel for the appellant, the aforesaid amount was paid towards the oral agreement, whereby the sale consideration of the suit property was fixed atRs.45,500/- by the appellant and the first respondent. Though, it has been established that the first respondent had receivedRs.10,500/- from the appellant, stating the price of land atRs.45,500/- by his letter, date 15.04.1989, subsequently on14.12.1989, he executed the sale deed, Ex.B.1, in favour of the second respondent and also remained absent in the suit as well as in the appeal, which clearly shows the indifferent attitude and conduct of the first respondent.

The evidence of P.Ws.1 to 3 would also be sufficient to establish the fact that the first respondent had receivedRs.11,500/- from the appellant, as stated in Ex.A.1. Therefore, the appellant is entitled to get back the aforesaid amount with12% interest, as prayed for in the plaint, till the date of Judgment and subsequently, 9% interest for the amount due and payable with exemplary cost of Rs.10,000/- from the first respondent herein.

The second respondent has disputed the alleged oral sale agreement between the appellant and the first respondent and according to him, he had no knowledge about Ex.A.1, letter. According to the learned counsel for the appellant, the second respondent had knowledge about the alleged oral sale agreement and therefore, he cannot be construed as a bonafide purchaser, for for valuable consideration. Further, he submitted that the appellant has deposited the balance of consideration into the Court, in order to prove his bonafide and therefore, he is https://hcservices.ecourts.gov.in/hcservices/ entitled to get specific purpose of the contract even against the second respondent herein.

In support of his contention, the learned counsel appearing for the appellant relied on the following decisions :1. Manickam.K.R. vs. P.Kumaravel, 1999 (III) CTC 152. Manoharadhas.M. vs. C.Arumughaperumal Pillai, 2003 (1)CTC 5393. Suresh Chand.B. vs. State of Tamil Nadu, 2006 (4) CTC80516. In the decision, Manickam.K.R. vs. P.Kumaravel, reported in 1999 (III) CTC 15, under Section 27(b) of SpecificRelief Act, 1953, it has been held by this Court, thattransferee for value in good faith without notice of agreement of sale, has to be established by the subsequent purchaser and failure to enquire the person, who is in possession of the property must be treated as wilful negligence and he cannot betreated as bonafide purchaser for value in good faith without notice. In the instant case, it is not in dispute that the appellant is the maternal uncle of the second respondent and also his junior father-in-law.

In the decision, Suresh Chand, B. vs. State of TamilNadu, reported in 2006 (4) CTC 805, the Full Bench of this Courthas held as follows :"Under Section 101 of the Evidence Act, 1872whoever desires any Court to give judgmentas to any legal right or liability depending on the existence of facts which he asserts, must prove, that those facts existed. Therefore, it is for him to establish that there was no wilful abstention of enquiry or search of the facts, on his part about the vendor before the sale transaction was completed.

Therefore, this Court is of the view that the appellant is entitled to get permanent injunction restraining the respondents herein, from in any way interfering with the peaceful possession and enjoyment of the suit property, since heis the cultivating tenant, until he is evicted under due processof law.