IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 12.7.2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.752 of 2007 Muniya Mooper .. Appellant vs. 1. Rajambal 2. Sivakumar 3. Ramaswamy Pillai 4. Murugesa Mooper .. Respondents The Second Appeal has been filed against the judgment and decree of the Principal District Court, Villupuram, dated 14.7.2006, made in A.S.No.31 of 2004, confirming the judgment and decree of the Sub Court, Kallakurichi, dated 13.10.2003 made in O.S.No.20 of 1996. For Appellant : Mr.S.Sounthar For Respondents : Mr.P.S.Kothandaraman J U D G E M E N T This Second Appeal has been filed against the judgment and decree, dated 14.7.2006, made in A.S.No.31 of 2004, on the file of the Principal District Court, Villupuram, confirming the judgment and decree of the Subordinate Court, Kallakurichi, dated 13.10.2003, made in O.S.No.20 of 1996. 2. The plaintiff in the suit, in O.S.No.20 of 1996, is the appellant in the present second appeal. The defendants 1, 2 4 and 5 in the suit are the respondents herein. The suit had been filed by the plaintiff for a decree of specific performance of the agreement, dated 17.7.1989, said to have been entered into between the plaintiff and the first defendant. It had been stated that by the said agreement for sale, the first defendant is said to have agreed to sell the suit property to the plaintiff for a sum of Rs.75,000/- as sale consideration. On the date of the said agreement, an advance of Rs.50,000/- is said to have been paid by the plaintiff to the first defendant. It had also been agreed that the balance of Rs.25,000/- would be paid, on or before 15.4.1990. https://hcservices.ecourts.gov.in/hcservices/ 3. In spite of several demands made by the plaintiff, the first defendant had failed to execute the sale deed as agreed in the agreement for sale, dated 17.7.1989. The first defendant was to have executed the sale deed for herself and on behalf of her minor children. In such circumstances, the plaintiff had caused the issuance of a legal notice, on 9.12.1989, stating that the plaintiff had always been ready and willing to perform his part of the contract and therefore, the first defendant was expected to register the sale deed in favour of the plaintiff, as per the terms and conditions of the agreement for sale, dated 17.7.1989. In the reply notice, issued on behalf of the defendants, on 25.12.1989, the existence of the agreement for sale, dated 17.7.1989, had been denied. In such circumstances, the plaintiff had filed the suit, in O.S.No.20 of 1996, on the file of the Subordinate Court, Kallakurichi. 4. In the written statement, the defendants had denied the existence of the sale agreement, dated 17.7.1989, stating that the alleged sale agreement had been created by the plaintiff, with mala fide intention, by using certain stamp papers available with him. 5. On behalf of the defendants, it had been further stated that the claim of the plaintiff that the suit properties were handed over to the plaintiff on the date of the execution of the sale agreement, dated 17.7.1989, on payment of Rs.50,000/-, as part of the sale consideration, are incorrect and false. 6. Based on the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration: "1. Whether the plaintiff is entitled for the relief of specific performance? 2. Is it correct to state that the sale agreement, dated 17.7.1989, is not true as claimed by the defendants? 3. To what other releifs, if any?" 7. Six documents had been marked on behalf of the plaintiff, as Exhibits A.1 to A.6 and two witnesses had been examined on his behalf. On behalf of the defendants, four witnesses had been examined and 19 documents had been marked, as Exhibits B.1 to B.19. The sale agreement, dated 17.7.1989, had been marked as Exhibit A.1 and the notice issued on behalf of the plaintiff, on 9.12.1989, had been marked as Exhibit A.2. Reply notice issued on behalf of the defendants had been marked as Exhibits A.3 to A.5. The plaintiff had been examined as P.W.1 and one of the attestors of the agreement for sale had been examined as P.W.2. https://hcservices.ecourts.gov.in/hcservices/ 8. The trial Court, on analysing the evidence available on record, had found that the kist receipts filed on behalf of the defendants had been marked as Exhibits B.2 to B.16, which were in the name of the first defendant, to show that the first defendant was in possession of the suit property, at the relevant point of time. Therefore, the trial Court had held that the claim of the plaintiff that the suit properties delivered to him, by the first defendant, on the date of the agreement, cannot be sustained. The trial Court had also found that the document marked as Exhibit B.17 was a settlement deed, dated 21.11.1989, executed by Subramania Mooper, son of Palani Mooper. 9. The trial Court had found that the suit property, having an extent of 8 acres and 26 cents, had belonged to Subramanian, the paternal grandfather of the second defendant. The second defendant's father, namely, Annamalai, was the only legal heir to Subramanian. Annamalai, had executed a settlement deed under Exhibit B.17, on 21.11.1989. According to which, the second defendant has become the owner of suit property items 1 to 4, 6, 25 and 27. Without knowing the settlement deed, marked as Exhibit B.17, the plaintiff had created Exhibit A.1, sale agreement, for the entire extent of the suit property. 10. The trial Court had also found that P.W.2, one of the attestors of the sale agreement had been examined on behalf of the plaintiff. However, the other attestors and the scribe had not been examined, even though they were available. Further, there was no explanation from the plaintiff for his failure to examine the other attestors and the scribe. The trial Court had also found that there were number of discrepancies in the evidence adduced by both P.W.1 and P.W.2. Even though the plaintiff, examined as P.W.1, had stated that one Kandasamy had written the agreement, in fact, it was actually written by one Arumugha Chetty. While, it had been stated that the stamp papers on which the agreement had been written was purchased from the stamp vendor Kandasamy, it had been purchased from Ms.Sowbagiyam. 11. The trial Court had also found that even though 21 items of property had been shown as part of the suit schedule, only 5 items were said to be the subject matter of the sale agreement. Further, the survey number had not been known by the plaintiff. It had also been admitted that the patta stood in the name of the first defendant's father-in -law, who had settled the properties in favour of the second defendant. With regard to the properties in question, the plaintiff had also stated that, neither a Well, nor a service connection is in the property concerned. In fact, such a claim was found to be incorrect from the statements made in Exhibit A.1. https://hcservices.ecourts.gov.in/hcservices/ 12. The trial Court had also found that the claim of the plaintiff, that the properties in question had been given to him, on the date of the execution of the sale agreement, on 17.7.1989, is not correct. From the kist receipts, marked as Exhibits B.2 to B.16, it was found that the payments had been made by the defendants. In such circumstances, the trial Court had dismissed the suit, by its judgment and decree, dated 13.10.2003, made in O.S.No.20 of 1996. 13. Aggrieved by the judgment and decree of the trial Court, dated 13.10.2003, made in O.S.No.20 of 1996, the plaintiff had filed the appeal, in A.S.No.31 of 2004, on the file of the Principal District Court, Villupuram. 14. Based on the claims made on behalf of the appellant, as well as the respondents, and in view of the evidence available on record, the first appellate Court had confirmed the judgment and decree of the trial Court, by its judgment and decree, dated 14.7.2006, made in A.S.No.31 of 2004. 15. Aggrieved by the judgment and decree of the first appellate Court, dated 14.7.2006, made in A.S.No.31 of 2004, the plaintiff in the suit and the appellant in the first appeal, had filed the present second appeal before this Court, raising the following questions, as substantial questions of law: "a) Whether the Courts below are correct in law in rejecting the evidence of attester to suit sale agreement on the ground he did not know the contents of agreements? b) Whether the notice sent by the appellant calling upon his vendor to execute sale deed in pursuance of suit agreement after receiving balance sale consideration is not sufficient to prove his ready and willingness? c) Whether the Courts below shifted the burden of proof wrongly on the appellant when respondents have not disputed their signature in the suit agreement?" 16. The learned counsel appearing for the appellant had submitted that the Courts below ought to have held that the agreement, dated 17.7.1989, entered into between the appellant and the respondents is true and valid. 17. The learned counsel for the appellant had also submitted that when it had been stated on behalf of the defendants that the appellant had created a false agreement of sale using old stamp papers, it should be taken as an admission by the defendants that there was an agreement of sale in existence. As such, the onus of https://hcservices.ecourts.gov.in/hcservices/ disproving the existence of the sale agreement or its validity would be on the defendants. 18. The learned counsel for the appellant had also submitted that the Courts below ought to have held that the sale agreement, dated 17.7.1989, marked as Exhibit A.1, had been sufficiently proved, by examining one of the attestors of the agreement. The Courts below had erred in not accepting the evidence of P.W.2. only on the ground that he did not know the contents of the document, which he had attested, contrary to the established principles of law. 19. It had also been stated that the Courts below had erred in coming to the conclusion that the appellant was not in possession of the suit property, since, the patta had not been transferred in his name. The Courts below ought to have known that the patta, in respect of the property concerned can be transferred only after the title had been established in favour of the said person. 20. Per contra, the learned counsel appearing for the respondents had submitted that the Courts below had rightly held that the suit filed by the appellant, in O.S.No.20 of 1996, was not maintainable, either in law or on facts. The Courts below had found that the evidence adduced on behalf of the appellant were insufficient to prove the claims made by him. It had been held that the appellant had failed to establish his claim that there was a sale agreement between the appellant and the respondents, in respect of the suit properties. Further, the appellant had also failed to show that an advance amount of Rs.50,000/- has been paid to the first defendant, as part of the consideration, for the purchase of the suit properties. It had also been found that the appellant was not in possession of the suit properties, as claimed by him. 21. Considering the submissions made by the learned counsels appearing for the appellant, as well as the respondents and on a perusal of the records available, this Court is of the considered view that the appellant has not shown sufficient cause or reason to set aside the concurrent findings of the Courts below. 22. The trial Court, as well as the first appellate Court, on analysing the evidence available on record, had rightly found that the appellant had not substantiated his claim by sufficient evidence. The appellant had not been in a position to show that the alleged sale agreement, dated 17.7.1989, marked as Exhibit A.1, is valid in the eye of law. Further, it could not be shown, by coherent and acceptable evidence, that the sale agreement had been executed by the appellant and the first respondent, for the sale of https://hcservices.ecourts.gov.in/hcservices/ the suit properties, for a sum of Rs.75,000/-, as alleged by the appellant. 23. Further, the Courts below had found that there were many unexplained discrepancies in the evidence of P.W.1 and P.W.2. Therefore, the questions raised by the appellant for the consideration of this Court, in the present second appeal, are not substantial questions of law. As such, the second appeal is devoid of merits. Hence, it stands dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. lan To: 1. The Principal District Court, Villupuram 2. The Sub Court, Kallakurichi 1 cc to Mr.P.S. Kothandaraman, SR. 49857 1 cc to Mr.S. Sounthar, Sr. 50306 S.A.No.752 of 2007 MBS (CO) kk 27/8 https://hcservices.ecourts.gov.in/hcservices/