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A.K. Subbian (died) & Others v/s S.S. Subbaian

    S.A. Nos. 1330 of 2004 & 226 of 2005

    Decided On, 18 July 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE T. RAVINDRAN

    For the Appellants: J. Venkatachalapathy, S. Kadarkarai, Advocates. For the Respondent: No Appearance.



Judgment Text

(Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 20.08.2003 passed in A.S.Nos.151 of 2002 & 152 of 2002 on the file of the Principal District Court, Coimbatore, confirming the Judgment and Decree dated 30.09.2002 passed in O.S.Nos.811 of 1995 & 854 of 1995 respectively on the file of the District Munsif Court, Mettupalayam.)

Common Judgment:

1. Second appeal No.1330 of 2004 has been preferred challenging the Judgement and Decree dated 20.08.2003 passed in A.S.No.151 of 2002 on the file of the Principal District Court, Coimbatore, confirming the Judgment and Decree dated 30.09.2002 passed in O.S.No.811 of 1995 on the file of the District Munsif Court, Mettupalayam.

2. Second appeal No.226 of 2005 has been preferred challenging the Judgement and Decree dated 20.08.2003 passed in A.S.No. 152 of 2002 on the file of the Principal District Court, Coimbatore, confirming the Judgment and Decree dated 30.09.2002 passed in O.S.No.854 of 1995 respectively on the file of the District Munsif Court, Mettupalayam.

3. Second appeal No.1330 of 2004 has been admitted on the following substantial questions of law:

' (1). Whether the judgment and decree of the Courts below are vitiated for having failed to decree the suit though the appellant / plaintiff had proved the execution of the sale agreement dated 20.01.1995 through PW.2?

(2). Whether the judgment and decree of the Courts below are vitiated for having not considered the defence put forth by the appellant in his written statement in O.S.No.854 of 1995 which substantiate his case in O.S.No.811 of 1995?

4. Second appeal No.226

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of 2005 has been admitted on the following substantial questions of law:

' (1). Whether the judgment and decree of the courts below are vitiated for having failed to consider the entire evidence on record and to apply the correct principles of law?

(2). Whether the judgment and decree of the Courts below are vitiated for having decreed the suit for recovery of possession when the appellant has established that he was put in possession of the suit property pursuant to the agreement of sale?

(3). Whether the judgment and decree of the Courts below are vitiated for having accepted the mere denial of the respondent about the sale agreement without accepting evidence of the independent plaintiff witness?'

5. Considering the scope of issues involved in the matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.

6. Suffice to state that O.S.No.811 of 1995 has been preferred by the appellant seeking the relief of specific performance in respect of the suit property on the basis of the sale agreement dated 20.01.1995 marked as Ex.A1. The respondent has preferred O.S.No.854 of 1995 in respect of the suit property seeking for declaration of his title to the same and also alleging that the appellant, on the strength of the injunction order obtained in O.S.No.811 of 1995, had unlawfully trespassed into the suit property, accordingly sought for the recovery of possession of the suit property from the appellant.

7. On the basis of the materials placed on record, the Courts below had accepted the case of the respondent and rejected the case of the appellant and aggrieved over the same, the present second appeals have come to be preferred by the appellant.

8. Pending the appeals, the appellant having died, his LRs had been brought on record.

9. As abovenoted, as regards the suit property, as per the case of the appellant, the respondent had agreed to sell the same in favour of the appellant for a sum of Rs.9,000/- and it is stated that with reference to the said arrangement, the parties had entered into a sale agreement on 20.01.1995, whereunder, according to the appellant, he had parted a sum of Rs.2,000/- to the respondent and agreed to pay the balance amount within one month from the date of the sale agreement and complete the sale transaction and inasmuch as the respondent had refused to comply with his part of the sale agreement and execute the sale deed, it is the case of the appellant that he had been necessitated to lay the suit for specific performance.

10. The respondent has laid the suit for declaration and possession disputing the alleged sale agreement put forth by the appellant and according to the respondent, the abovesaid sale agreement is a forged document and by way of the same, the respondent had not agreed to sell the suit property to the appellant for a sum of Rs.9,000/- as alleged by the appellant and also not received the advance sum of Rs.2,000/- as put forth and further, according to the respondent, on the strength of the injunction order obtained in O.S.No.811/1995, the appellant had unlawfully trespassed into the suit property and been in forcible possession of the suit property and hence, according to the respondent, he has been necessitated to lay the suit for appropriate reliefs.

11. Materials placed on record go to show and also not in dispute, as such, that it is only the respondent, who is the owner of the suit property. This could also be seen from the sale deed marked as Ex.B1 dated 16.03.1985. It is thus found that by way of Ex.B1, it is only the respondent, who has acquired title to the suit property and according to the appellant's case, though he had also vied with the respondent to purchase the suit property, however, it is his case that on the advice of the official receiver, he had allowed the respondent to purchase the suit property by way of Ex.B1 and further, according to the appellant, as advised by the official receiver, he had entered into an agreement of sale with the respondent in respect of the suit property and accordingly, the sale agreement Ex.A1 had come to be executed. When, according to the appellant's case, he had also competed to purchase the suit property along with the respondent and when it is found that it is only the respondent, who had acquired title to the suit property way back on 16.03.1985 by way of Ex.B1, if really, the appellant had any intention to purchase the suit property and if he had been so advised by the official receiver, immediately after Ex.B1, the appellant would have ventured to enter into an agreement of sale with the respondent as regards the purchase of the suit property. However, it is found that nearly 10 years after the execution of Ex.B1, the appellant has come forward with the case, as if the respondent had agreed to sell the suit property to him for a sum of Rs.9,000/- as recited in the sale agreement. However, according to the respondent, the abovesaid sale agreement is a forged document and he had never agreed to sell the suit property to the appellant at any point of time. When the very basis of the appellant's case is that everything had been done only at the instance of the official receiver, his above case should have been projected and established by examining the concerned official receiver. However, the official receiver, who is alleged to have advised the appellant to purchase the suit property from the respondent, after he having acquired title to the suit property, has not been examined. When the sale agreement projected by the appellant is being disputed totally, it is for the appellant to establish the veracity of the same. With reference to the same, the appellant has chosen to examine the scribe-cum-attestor of the sale agreement Ex.A1 as PW2. However, PW2's evidence is found to be totally unacceptable and it is found that he is not at all aware as to for what purpose, under what circumstances, Ex.A1 sale agreement had come to be executed and it is also found that he is also not aware of the parties who had actually entered into the abovesaid sale agreement. According to PW2 Rangaraj, he had written the sale agreement as per the direction of the official receiver and it is his case that the draft of the sale agreement had been written in a white paper by the official receiver and he had copied the same in the stamp papers and accordingly, it is his case that he has scribed the sale agreement and also attested the same. Further, during the course of cross examination, he has admitted that he had seen the appellant and the respondent for the first time at the office of the official receiver and further, according to him, he does not know for what purpose, they had visited the office of the official receiver at that point of time and also it is his version that he had not obtained any licence to write the document and he does not remember as to when he had been directed to write the sale agreement and also pleaded ignorance as to why he had been directed to write the sale agreement instead of the official receiver himself writing the same and further, according to him, at the time, when he had written the sale agreement, 2, 3 persons were available at the office of the official receiver and he does not know whether the plaintiff and the defendant were amongst them and also admitted that he does not know whether any transaction had been entered into between them and also stated that the official receiver had not signed in the sale agreement. It is thus found that PW2 is unable to throw a clear picture as to whether at all the appellant and the respondent had really entered into a sale agreement as regards the suit property and if that be so, the evidence of PW2 would have been clear of all the material aspects of the sale agreement particularly as regards the sale consideration agreed to between the parties, the advance paid under the same, the time agreed to between the parties for completing the sale transaction etc., With reference to the above aspects, nothing has been averred by him during the course of chief examination and as above adverted to, during the course of cross examination, he is found to be unable even to identify the plaintiff and the defendant and accordingly, deposed that he does not know whether the plaintiff and the defendant were actually present at the official receiver's office, when the sale agreement had been written by him there. Further, he has also agreed that he does not know the transaction between them and when according to PW2, he had been directed to write the sale agreement by the official receiver, the best person to have attested the same would be the official receiver. Further, the official receiver is found to be not at all in the picture, when the sale agreement was alleged to have been written by PW2, accordingly, it is found that he had not even attested the same and it is not the evidence of PW2 that at the time, when the sale agreement was written and signed by the parties, the official receiver was present. It is thus found that the evidence of PW2 is far from satisfactory and when he is unable to throw any light as to the material aspects of the agreement between the parties as regards the sale of the suit property, it is found that based on his unreliable evidence, we cannot accept the authenticity of the sale agreement.

12. It is seen that the respondent had acquired title to the suit property only in the year 1985. It is thus seen that thereafter, it is only the respondent, who has been in the possession and enjoyment of the suit property. It is not the case of the appellant and also not established by him that he had acquired the possession of the suit property even prior to the purchase of the same by the respondent under Ex.B1 from the respondent's vendor. In such view of the matter, the appellant, if really, had entered into a sale agreement with the respondent and thereby, the respondent had agreed to sell the suit property to the appellant and put the appellant in the possession of the suit property, necessary recitals to that effect could have been incorporated in Ex.A1. However, it is found that as per the recitals contained in Ex.A1, it reads, as if the appellant is already in the possession of the suit property and even with reference to the same, no proper explanation is forthcoming on the part of the appellant. It has not been established by him as to how and under what circumstances and when he had acquired the possession of the suit property even prior to Ex.A1. Further, it is thus found that the appellant, even as per the recitals contained in Ex.A1, had not been put in the possession of the suit property pursuant to the same. On the other hand, the recitals contained therein go to show that the appellant is already in the possession of the suit property. However, with reference to the abovesaid case of the appellant, there is absolutely, no material placed on record to show that the appellant had been in the possession and enjoyment of the suit property even prior to the sale agreement Ex.B1 and also continued to be in the possession of the suit property lawfully from Ex.A1 sale agreement. Thus, it is found that the alleged possession of the appellant, prior to Ex.A1 as recited in Ex.A1 cannot at all be true and therefore, could not be accepted.

13. It is the specific case of the respondent that the appellant, on the strength of the injunction order obtained in O.S.No.811 of 1995, had trespassed into the suit property unlawfully and the same had necessitated the respondent to institute the suit for appropriate reliefs in O.S.No.854 of 1995. When it is not the case of the appellant that he had been put in the possession of the suit property pursuant to Ex.A1 and when the appellant had not established that he had taken the possession of the suit property prior to Ex.A1 and when Ex.A1's authenticity itself is in dispute and not established by the appellant as above pointed out, it is seen that as rightly put forth by the respondent, only after the institution of the suit in O.S.No.811/1995, it is seen that the appellant had unlawfully trespassed into the suit property and the same had necessitated the respondent to institute the suit for appropriate reliefs in O.S.No.854 of 1995.

14. According to the appellant, as per Ex.A1, he should pay the balance sale amount of Rs.7,000/- and complete the sale transaction. However, there is no material to show that the appellant had been ready and willing to purchase the suit property within the time stipulated in the sale agreement. That apart, the pre-suit notice has been issued on 13.03.1995 much after the time fixed under the sale agreement. The pre-suit notice Ex.A2 has been suitably responded by the respondent by way of a reply notice, which has come to be marked as Ex.A3. It is thus found that even essential ingredient, for the entitlement of the specific performance viz., readiness and willingness on the part of the appellant, not having been established, it is found that on that score also, the appellant would not be entitled to seek the discretionary relief of specific performance.

15. When it is found that it is only the respondent, who has title to the suit property and when the appellant's possession of the suit property has not been established to be lawful and when the genuineness of the sale agreement projected by the appellant has not been established and accordingly, it is found that the appellant had not been put in the possession of the suit property pursuant to Ex.A1. For the reason aforestated, the Courts below are justified in holding that the sale agreement projected by the appellant is a forged document and not to be relied upon. No interference is called for with reference to the abovesaid determination of the Courts below as regards the sale agreement Ex.A1.

16. The respondent being the title holder of the suit property as abovenoted and when the appellant's possession of the suit property is found to be unlawful and the appellant is unable to justify his possession of the suit property, it is seen that only by way of trespass, the appellant had forcibly occupied the suit property unlawfully and in such view of the matter, it is seen that the respondent is entitled to obtain the possession of the suit property from the appellant as prayed for.

17. The appellant not having established that his possession is lawful and also not even pleaded that his possession is through Ex.A1 sale agreement, it is found that accordingly, the appellant had not even raised any claim of defence as provided under Section 53-A of the Transfer of Property Act in his pleadings and thus, it is found that the appellant cannot be allowed to retain the possession of the suit property and therefore, he is liable to handover the same to the respondent.

18. In the light of the above discussions, the judgment and decree of the Courts below do not warrant any interference and accordingly, the substantial questions of law formulated in the second appeal are answered against the appellant and in favour of the respondent.

In conclusion, both the second appeals fail and are, accordingly, dismissed. No costs. Consequently, connected miscellaneous petition,if any, is closed.
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