IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:4.01.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1394 of 2008 and M.P.No.1 of 2008 S.Shanmugham ... Appellant/Defendant vs. R.Nallasamy ... Respondent/Plaintiff This second appeal is filed under section 100 of C.P.C. against the judgement and decree dated 14.9.2007 passed by the Principal District Judge, Erode, in A.S.No.32 of 2007 confirming the judment and decree dated 30.12.2005 passed by the II Additional Subordinate Judge, Gobichettipalayam, in O.S.No.325 of 2001. For Appellant : Mr.A.K.Kumaraswamy For Respondent : Mr.R.Nataraj JUDGMENT This second appeal is filed by the defendant, inveighing the judgement and decree dated 14.9.2007 passed by the Principal District Judge, Erode, in A.S.No.32 of 2007, confirming the judment and decree dated 30.12.2005 passed by the II Additional Subordinate Judge, Gobichettipalayam, in O.S.No.325 of 2001, which was filed for specific performance of an agreement to sell. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus: (a) The gist and kernel of the averments in the plaint would be to the effect that the plaintiff and the defendant entered into a registered agreement to sell dated 11.2.2000, whereby the latter agreed to sell the suit property in favour of the former for a total sale consideration of Rs.2,25,000/- and under that agreement to sell, a sum of Rs.2,00,000/- was paid as advance. Subsequently, there was https://hcservices.ecourts.gov.in/hcservices/ default on the part of the defendant, whereupon the plaintiff issued the lawyer's notice and since there was no positive response, the plaintiff filed the suit for specific performance. (b) The defendant resisted the suit by filing written statement. (c) The trial Court framed the issues. The plaintiff, on his side, examined himself as P.W.1 along with P.W.2 and P.W.3 and marked Exs.A1 to A6. On the defendant's side, he examined himself as D.W.1 and no document was marked. (d) Ultimately the trial Court decreed the suit. (e) Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, the appeal was filed for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial court. 4. Challenging and impugning the judgements and decrees of the Courts below, the second appeal has been filed on various grounds and also suggesting the following proposed substantial questions of law: "a.Are the courts below justified in holding that the agreement of sale is a true transaction and not executed as security for a loan transaction, overlooking the time fixed for performance as 21 months and the balance of sale consideration was only a sum of Rs.25,000/-? b.Is not the judgments of the Courts below vitiated as seem from the evidence of P.W.1 that he did not pay money to the defendant/appellant under the suit agreement to sale? (extracted as such) 5. On hearing both sides, I am of the considered view that it has to be seen as to whether any substantial question of law is involved at all in this case and whether there is any perversity or illegality in the judgements of the Courts below. 6. Tersely and briefly, the arguements of the learned counsel for the defendant would run thus: (i) The defendant was not the exclusive owner of the suit property and on the plaintiff's side, P.W.1 categorically admitted that the agreement would not bind the son of the defendant and there was no partition effected between the father and son and in such a case, the agreement to sell was not enforceable. (ii) The agreement itself contemplates, 21 months, as the period for performance, which is indicative of the fact that the said document is nothing but a sham and nominal document intended purely https://hcservices.ecourts.gov.in/hcservices/ for the purpose of securing prompt repayment of the loan amount and it was not intended to be acted upon as an agreement to sell. (iii) The Courts below failed to take into account the reality involved in the matter. 7. Accordingly, the learned counsel for the defendant would pray for framing substantial question of law and ultimately to set aside the judgment and decree of the Courts below and to order for refund of the money paid by the plaintiff to the defendant, as prayed by the plaintiff in his alternative prayer in the plaint. 8. By way of torpedoing and pulverising the arguements, as put forth on the side of the defendant, the learned counsel for the plaintiff would advance his arguements, which could pithily and precisely be set out thus: (a) The written statement is as silent as silence could be relating to the co-ownership of the suit property. (b) There is no whisper at all in the written statement that the proposed seller had no exclusive saleable right in the suit property. (c) The onus probandi was on the defendant to prove that the sale agreement was not intended to be acted upon, in view of Section 92 of the Indian Evidence Act. (d) The Courts below correctly and appropriately appreciated the oral and documentary evidence and also properly applied the concept 'onus probandi' and decided the lis, warranting no interference in second appeal. Accordingly, the learned counsel for the plaintiff prays for dismissing the second appeal, confirming the judgments and decrees of the Courts below. 9. Taking into consideration the overall circumstances involved in this case, as put forth on the side of the defendant, I am of the view that the onus probandi is on the defendant. 10. At this juncture, I call up and recollect the following maxims: (i) Affirmatis est probare – He who affirms must prove. (ii) Affirmanti, non neganti incumbit probatio – The burden of proof lies upon him who affirms, not upon one who denies. The above maxims would indicate that it is the burden on the part of the person who affirms a fact. https://hcservices.ecourts.gov.in/hcservices/ 11. No doubt, the initial burden is on the plaintiff to prove Ex.A1 as an agreement to sell. In this case, the defendant candidly and categorically, without mincing words, admitted that Ex.A1 is a registered agreement to sell, however, he would hasten to add that it was not intended to be acted upon. Ex.A1 was duly exhibited on the plaintiff's side. Since the burden of proof is ambulatory, and in view of the stand taken by the defendant, the burden of proof got shifted to the defendant. 12. It has to be seen as to whether the defendant discharged such a burden. 13. The contention on the side of the defendant that the very fact that 21 months' period was contemplated would indicate and demonstrate the fact that the alleged transaction, as got embodied in Ex.A1, was not actually an agreement to sell intended to be acted upon, but it emerged only as a security for the prompt repayment of the amount borrowed, is not buttressed and fortified by any plausible evidence much less clinching evidence. 14. Whereas, the learned counsel for the plaintiff would submit that Section 92 of the Indian Evidence Act is clear that the words used in a registered document should necessarily be given effect to, as otherwise, the very purpose of entering into a written agreement itself would be set at naught. 15. In this connection, I would like to recollect the following decision of the Division Bench of this Court: 1993-2-L.W.205 – NANJAMMAL (DIED) AND ANOTHER V. PALANIAMMAL, certain excerpts from it would run thus: "5. It was one of the contentions urged in the Court below that the plaintiff had not even obtained encumbrance certificate before the execution of Exhibit A1 and she had not taken the title deed from the defendant. The Court below has pointed out the recital in Exhibit A1 under which the defendant had undertaken to obtain an encumbrance certificate and give it to the plaintiff. The fact that the plaintiff had not taken the title deed in advance does not in any way discredit the truth of the agreement in Exhibit A1. In fact, the evidence of the defendant is that what was written was really an agreement though it was only for the purpose of securing the loan. She (defendant) has admitted that the plaintiff wanted her to execute an agreement for sale by way of security for the loan and she did execute such an agreement. When that is the fact, it is not open to the defendant to raise a plea that the terms of the agreement should be ignored as the real purpose was to secure the loan transaction. It is conceded by learned counsel for the appellants that the defendant is barred https://hcservices.ecourts.gov.in/hcservices/ from raising such a plea by S.92 of the Indian Evidence Act. 6. Hence the only question to be considered is whether the relief of specific performance should not be granted to the plaintiff. The normal rule is that once the truth of the agreement is made out the Court shall enforce it unless there are circumstances which would prove that equity will suffer by enforcing the agreement for sale. In the present case no such circumstances has been brought to the notice of the Court either in the pleadings or in the evidence to show that equity favours the defendant and relief of specific performance should be denied. The defendant has stated in the evidence that the property was worth much more than Rs.1,01,000/- at the time of the agreement. But there is absolutely no evidence in support of the same. No document has been produced to prove the value of the lands in the locality and no witness has been examined to speak to the same. In such circumstances we cannot accept the case of the defendant that the property is more valuable than the consideration mentioned in Exhibit A1." It is therefore clear that the burden of proof is on the defendant and not on the plaintiff in matters of this nature. 16. The defendant examined himself as D.W.1 and it remains only his ipsi dixit. Unless there are clinching evidence to fortify and buttress the plea of the defendant, he cannot call upon the Court to decide the lis in his favour. Simply because there was a period of 21 months for performing the agreement to sell, the Court cannot jump to the conclusion that in all probabilities Ex.A1 should be taken only as a security for prompt repayment of loan. 17. The contention on the part of the defendant that the defendant had no exclusive saleable right is neither here nor there in view of the maxim "Judicis est judicare secundum allegata et probata' – It is the duty of a judge to decide according to facts alleged and proved. Without proper pleadings, the question of calling upon the Court to accept such an oral plea cannot be accepted and further more, no issue also did arise in view of the averments in the written statement. 18. At this juncture, my mind is reminiscent of the following judgments of the Honourable Apex Court: (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL. (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. https://hcservices.ecourts.gov.in/hcservices/ (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYA: 19. A bare and plain reading of those precedents would reveal and demonstrate that in second appeal, this Court could not interfere relating to the concurrent finding of facts by the Courts below, unless there is any perversity or illegality or any substantial question of law is involved. 20. In my considered opinion, the perusal of the judgments of the Courts below does not evince or expatiate any such perversity or illegality and the Courts below correctly adhered to the concept 'burden of proof' and decided the lis. Mere fact that there was 21 months' period for performance of the agreement to sell, contemplated in Ex.A1 would not be sufficient for this Court to interfere in second appeal as though a substantial question of law is involved. 21. The learned counsel for the defendant also, by inviting the attention of this Court to the last portion of the deposition of P.W.1, would develop his argument that P.W.1 himself admitted that there was no partition between the father and son. 22. To the risk of repetition and pleonasm, but without being tautalogous, I would like to point out that there was no specific pleading relating to the co-ownership of the property at all in the written statement and in such a case, placing reliance on the last portion of the deposition of P.W.1 would not in any way enure to the benefit of the defendant to get the second appeal allowed. 23. In view of the ratiocination adhered to above, I am of the view that no substantial question of law is involved in this case and as such, the second appeal deserves to be dismissed and accordingly, it is dismissed. Consequently, connected miscellaneous petition is dismissed. However, there is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Msk To 1.The Principal District Judge, Erode 2.The II Additional Subordinate Judge, Gobichettipalayam. 1 cc To M/s.V.Sudhana Vinodhini, Advocate, SR.252 1 cc To Mr.A.K.Kumarasamy, Advocate, SR.728 S.A.No.1394 of 2008 CK (CO) RH (14.2.11) https://hcservices.ecourts.gov.in/hcservices/