1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED 24.02.2011 CORAM THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.M.A.(MD)Nos.55 & 56 of 2011 and M.P (MD) Nos.1, 1, 2 & 2 of 2011 M.Govindarajan .. Appellant in both C.M.A's/Respondent/Defendant Vs T.S.Govindarajan ..Respondent in both C.M.A's/Petitioner/Plaintiff Common Prayer:- Appeals filed under Order XLIII Rule 1 of the Code of Civil Procedure against the fair and decreetal order passed by the First Additional District and Sessions Judge, (PCR) Thanjavur in I.A.Nos.241 of 2008 & 256 of 2009 respectively in O.S.No.149 of 2008 dated 27.10.2010. For Appellant : Mr.N.Tamilmani (in both C.M.A's) For Respondent : Mr.J.Padmavathi (in both C.M.A's) JUDGMENT These Civil Miscellaneous Appeals are directed against the orders and decretal orders, dated 27.10.2010 and made in I.A.Nos.241 of 2008 & 256 of 2009 respectively in O.S.No.149 of 2008 on the file of the learned First Additional District and Sessions Judge, (Protection of Civil Rights) Thanjavur. 2. The appellant as well as the respondent in both the appeals are parties to the suit in O.S.No.149 of 2008. This suit has been instituted by the respondent herein in both the appeals for the relief of specific performance of sale agreement dated 30.11.2006. The appellant herein is the defendant in the above said suit. Along with the suit, the respondent had filed an Interlocutory Application in I.A.No.241 of 2008 for the relief of temporary injunction against the appellant/defendant herein, as he wanted to protect his possession in respect of the suit property under Section 53-A of the Transfer of Property Act, 1882. 3.Similarly, the appellant/defendant had also filed another Interlocutory Application in I.A.No.256 of 2009, seeking the relief of interim injunction against the respondent/plaintiff restraining him from interfering with his possession and enjoyment in respect of the first and second floor of the suit property. https://hcservices.ecourts.gov.in/hcservices/ 2 4.After hearing both sides and on appreciation of the documentary evidences marked on behalf of both sides, the learned Trial Judge had proceeded to allow the application in I.A.No.241 of 2008, granting interim injunction in favour of the respondent/plaintiff, after dismissing the petition in I.A.No.256 of 2009, which was filed by the appellant/defendant. 5.Challenging the orders and decretal orders dated 27.10.2010, the appellant has approached this Court by way of these appeals. Hence, both the appeals have been clubbed together and disposed of by this common judgment. 6.The facts which are absolutely necessary for the disposal of these appeals are re-capitulated as under: That on 30.11.2006, both the appellant and the respondent herein had entered into a sale agreement and thereby the appellant, who is the owner of the property which is more fully described in the suit schedule had agreed to sell his property (house) in favour of the respondent for a sale consideration of Rs.12,55,000/-. In pursuant to the sale agreement, part of the sale consideration was paid and the remaining part to the extent of Rs.8,02,500/- is to be paid. 7.Exhibit A-4 is the sale agreement and it is stipulated that the contract of sale shall have to be completed on or before 05.02.2007. Since the contract of sale was not completed as stipulated above, the respondent herein, who is the purchaser of the property has filed the suit in O.S.No.149 of 2008 on the file of the learned First Additional District and Sessions Judge, (Protection of Civil Rights) Thanjavur for the relief of specific performance. Now the suit is pending. 8.It is the contention of the respondent/plaintiff that previously an agreement of exchange in respect of housing property, dated 15.05.2006 was entered into between the appellant/defendant and the wife of the respondent/plaintiff and thereby the appellant/defendant as well as the wife of the respondent/plaintiff had agreed to exchange their respective houses. But, for some obvious reasons that agreement of exchange was not able to be fulfilled and after the cancellation of the said exchange agreement, both the appellant and the respondent herein had entered into another agreement of sale in respect of the suit property. The suit property is consisting of ground floor, Ist floor and IInd floor. 9.The contention of the respondent/plaintiff is that at the time of execution of agreement of exchange between the appellant/defendant and his wife, the possession of the entire house was handed over to him and that he has been at present in possession and enjoyment of the suit property. Hence, he had filed the application in I.A.No.241 of 2008 for the relief of interim injunction against the appellant/defendant. https://hcservices.ecourts.gov.in/hcservices/ 3 10.On the other hand, Mr.N.Tamilmani, the learned counsel appearing for the appellant has submitted that the ground floor of the house was leased out to the daughter of the respondent/plaintiff and she alone has been in possession in respect of the ground floor in the capacity of tenant. But the possession in respect of Ist floor and IInd floor has been retained with the appellant/defendant and that was why he had filed an application in I.A.No.256 of 2009 for the relief of interim injunction against the respondent/plaintiff and his men. He has also submitted that the Lower Court has failed to approach the case with proper perspective which resulted in the wrong conclusion and that was why it proceeded to dismiss the application in I.A.No.256 of 2009, after allowing the application filed by the respondent/plaintiff in I.A.No.241 of 2008. 11.Mrs.J.Padmavathi, learned counsel appearing for the respondent has vehemently refuted the contention made on behalf of the appellant. While advancing her argument, she has submitted that the respondent/plaintiff alone has been possession in respect of the entire building and it is absolutely wrong to say that the appellant/defendant has been in possession in respect of Ist and IInd floor. 12.This Court has carefully gone through the affidavit filed in support of both the petitions in I.A.Nos.241 of 2008 and 256 of 2009. This Court has also evaluated the documentary evidences ranging from Exs.A1 to A35 in I.A.No.241 of 2008. On the other hand, no documentary evidence was marked in I.A.No.256 of 2009. 13.However, this Court has considered the related facts and circumstances of the case. Ex.A4-Sale Agreement plays paramount role. In this agreement, at paragraph No.2 in Page No.4 at the bottom four lines, it is specifically stated that the second party (the appellant herein) shall pay housing tax as well as the amount for underground drainage scheme. In case, if the second party (the appellant herein) fails to pay the taxes, the first party (the respondent herein) shall pay the said taxes on behalf of the second party and the amount so paid shall be deducted from the balance of sale consideration which is to be paid by the respondent/plaintiff to the appellant/defendant. On the basis of this specific stipulation, it is thus clear, that whatever amount paid towards the house tax as well as underground drainage scheme it is deemed to be paid by the appellant/defendant. 14.Having regard to the other Exhibits pertaining to the Ration Card, Telephone connection and Gas connection, all would go to show that the ground floor has been in the possession of the daughter of the respondent/plaintiff. Prima facie case is made out that the respondent/plaintiff has not been in possession of Ist floor and IInd floor of the suit building. The balance of convenience is also in favour of the appellant/defendant. Having regard to the above facts and on considering the submissions made on behalf of both sides, this https://hcservices.ecourts.gov.in/hcservices/ 4 Court is of view that the appeals in C.M.A.Nos.55 and 56 of 2011 are deserved to be allowed. C.M.A.No.55 of 2011:- In the result the Civil Miscellaneous Appeal in C.M.A.No.55 of 2011 is allowed. The order and decretal order dated 27.10.2010 and made in I.A.No.241 of 2008 is modified as detailed below: The respondent/plaintiff, who is the petitioner in I.A.No.241 of 2008 is entitled to the relief of interim injunction in respect of the ground floor only and the order of interim injunction in respect of Ist and IInd floor is set aside. Accordingly, the petition in I.A.No.241 of 2008 is allowed in part. C.M.A.No.56 of 2011:- In the result, the Civil Miscellaneous Appeal in C.M.A.No.56 of 2011 is allowed and the order and decretal order dated 27.10.2010 and made in I.A.No.256 of 2009 is set aside and the application in I.A.No.256 of 2009 is allowed and an interim injunction granted in favour of the appellant/defendant in respect of first and second floor of the suit property as prayed for. Consequently, connected miscellaneous petitions are also closed. No order as to costs. Sd/- Assistant Registrar(Crl.Side) /True Copy/ Sub Assistant Registrar To The First Additional District and Sessions Judge, PCR Cases, Thanjavur. +2cc to Mr.N.Tamilmani, Advocate, Sr.No.9845 Copy to: The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai. Judgment made in C.M.A.(MD)Nos.55 & 56 of 2011 and M.P(MD) Nos.1, 1, 2 & 2 of 2011 24.02.2011 ps SMA/27.4.2011/4C/4P https://hcservices.ecourts.gov.in/hcservices/