IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.6.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.1464 and 1465 of 2010 K.Mani ... Appellant in both the S.As./Plaintiff vs. 1.M.D.Jayavel 2.Saroja 3.Ramani 4.Sambandam 5.Porkodi 6.Kasthuri 7.Balakumar 8.Parimal ... Respondents in both the Sas./Defendants These second appeals are filed against the judge ments and decrees dated 31.8.2010 passed in A.S.Nos.1 and 13 of 2010 by the District Judge, No.II, Kancheepuram, confirming the judgement and decree dated 18.11.2008 passed in O.S.Nos.104 of 2005 and 91 of 2007 by the Subordinate Judge, Kancheepuram. For Appellant : Mr.V.Subramani in both the SAs For Respondents : Mr.Y.Jyothish Chander COMMON JUDGMENT These second appeals are focussed by K.Mani-the plaintiff in O.S.No.104 of 2005 and defendant in O.S.No.91 of 2007, animadverting upon the judgement and decrees dated 31.8.2010 passed in A.S.Nos.1 and 13 of 2010 by the District Judge, No.II, Kancheepuram, confirming the dismissal decree dated 18.11.2008 passed by the Subordinate Judge, Kancheepuram, in O.S.No.104 of 2005 for specific performance filed by the appellant herein and also in confirming the decreeing of the suit O.S.No.91 of 2007 for eviction and for recovery of possession filed by the respondents herein. 2. The parties, for the sake of convenience are referred to hereunder according to their litigative status and ranking before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 3. A summation and summarisation, avoiding discursive delineation, of the relevant facts absolutely necessary and germane for the disposal of these second appeals, would run thus: (i) The appellant herein/Mani filed the suit O.S.No.104 of 2005 for specific performance of an agreement to sell, with the following prayer: "a) to direct the defendants to execute and register the sale deed in respect of the suit property in favour of the plaintiff at his costs after receipt of the balance of sale consideration of Rs.2,78,999/- within a time to be fixed by this Court." (extracted as such) (ii) The respondents herein filed the written statement resisting the said suit. (iii) In turn, the respondents herein, namely, Jayavel and 7 others, as plaintiffs filed the suit O.S.No.91 of 2007 for evicting the appellant herein/Mani on the ground that the tenancy in favour of Mani was terminated by the plaintiffs/landlords and that he should vacate and hand over possession. (iv) The following are the reliefs found set out in O.S.No.91 of 2007: "to evict the defendant from the suit property and to order recovery of possession of the same in favour of the plaintiffs, directing to pay a sum of Rs.6,600/- as the arrears of rents for the period from 1.2.2002 to 30.9.2004 in favour of the plaintiffs, directing an enquiry for determination of the mesne profits for the unlawful use and occupation of the suit property by the defendant from the date of the suit at the rate of Rs.500/- per month till delivery of possession in favour of the plaintiffs and for costs of the suit." (extracted as such) (v) Written statement was filed by the appellant/Mani resisting the suit. (vi) A joint trial was conducted by the trial Court, after framing issues. (vii) The first plaintiff in O.S.No.91 of 2007 examined himself as P.W.1 and marked Exs.A1 to A13. Mani/the appellant herein examined himself as D.W.1 and marked Exs.B1 to B10. (viii) Ultimately, the trial Court dismissed the suit O.S.No.104 of 2005 filed by the appellant/Mani and decreed the suit O.S.No.97 of 2007 filed by the respondents/Jayavel and others. https://hcservices.ecourts.gov.in/hcservices/ (ix) As against those judgement and decrees, two appeals were filed by the appellant/Mani for nothing but to be dismissed by the first appellate Court, confirming the judgement and decrees of the trial Court. 4. Being aggrieved by and dissatisfied with the said judgement and decrees, these second appeals have been filed by Mani on various grounds and also suggesting the following substantial questions of law: S.A.No.1464 of 2011: "(a) Whether the Courts below are correct in holding that the appellant was not ready and willing to perform his part of the contract, contrary to the provisions contained in explanation I and II of Section 16(c) of the Specific Relief Act? (b) Whether the Courts below were correct in holding that there is material alteration in the sale agreement in Ex.B1? (c) Whether the Courts below were correct in presuming the month as 'May' and the period stipulated as 12 in the absence of any evidence? (d) Whether the Courts below were correct in interpreting the sale agreement Ex.B1 as materially altered as it is not reasonably possible to make an alteration of such nature, which is impossible in a computer printed out documents Ex.B1? (e) Whether the appellant is not entitled to the benefit conferred under Section 53A of the Transfer of Property Act having satisfied the requirements of the said provisions?" S.A.No.1465 of 2011: "a) Whether the tenancy was subsisting on the date of plaint in O.S.No.91 of 2007 on the file of Sub Court, Kancheepuram? b) Whether the suit for eviction based on the tenancy is maintainable? c) Whether the notice of termination under Ex.A7 is valid in law? https://hcservices.ecourts.gov.in/hcservices/ d) Whether the respondents are not barred from enforcing any right in respect of the suit property other than the rights conferred under sale agreement Ex.B1 in terms of Section 53A of Transfer of Property Act? e) Whether the jurisdiction of the civil Court is not barred in view of the provisions contained in Tamil Nadu Buildings (Lease and Rent Control) Act 1960? f) Whether the suit is maintainable as framed without proper power or authority?" 5. I hark back to the principles as found embodied in the following judgement of the Honourable Apex Court: (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL; "24. ........(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." and the other precedents emerged in this regard. (ii) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. https://hcservices.ecourts.gov.in/hcservices/ (iii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iv) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYA: 6. A bare and plain perusal of the above precedents would exemplify and demonstrate that unless there is any perversity or illegality in the decisions rendered by the Courts below, the question of interfering in second appeal on the finding of facts would not arise and there should be valid legal grounds also for interference. 7. It is therefore just and necessary to find out as to whether any substantial question of law is involved in this matter. 8. The learned counsel for the second appellant/Mani would put forth and set forth his arguments, which could tersely and briefly be set out thus: (i) Consequent upon Ex.B1-the sale agreement, which emerged admitted between the landlords i.e. Jayavel and others and Mani, the tenancy in favour of Mani got extinguished automatically and the possession of Mani elating to the suit property got itself converted into possession of agreement holder under the said agreement to sell and in such a case, the question of terminating the tenancy and seeking eviction on the part of Jayavel and others was not at all possible, but even then, the Courts below simply treated the possession of Mani as that of tenant and they held as though the said tenancy was terminated etc. (ii) The findings of the Courts below that the agreement to sell was materially altered is not supported by any evidence. Only on conjectures and surmise, the Courts below held as though the agreement to sell was tampered with at the instance of Mani. (iii) The question of ushering in limitation also does not arise as there was no tampering with the agreement to sell. (iv) The Courts below did not take into account the legal position as laid down by the Honourable Apex Court in various decisions. Accordingly, the learned counsel for the appellant would pray for setting aside the judgements and decrees of the Courts below and for decreeing the suit O.S.No.104 of 2005 filed by Mani/the second appellant and for dismissing the suit O.S.No.97 of 2007 filed by the respondents herein. https://hcservices.ecourts.gov.in/hcservices/ 9. In a bid to torpido and pulverise the arguments as put forth and set forth on the side of the second appellant, the learned counsel for the respondents would advance his arguments which would succinctly and precisely run thus: (a) Ex.B1-the agreement to sell would ex facie and prima facie exemplify and demonstrate that it was tampered with, at the instance of Mani. (b) The Courts below taking into account the reality held that such agreement to sell was unenforceable, warranting no interference in second appeals. (c) The findings rendered by the Courts below are mainly based on finding of facts and in such a case, unless there is any perversity or illegality, the question of interfering with it, in the second appeal is a well-neigh impossibility. (d) Nowhere in the said agreement to sell, it is found specified that the possession of the erstwhile tenant Mani got converted into one of an agreement holder and in such a case, the decisions cited on the side of the second appellant are not relevant and germane. Accordingly, the learned counsel for the respondents would pray for dismissal of the second appeals. 10. At the outset itself I would like to point out that Section 53A of the Transfer of Property Act cannot be ushered in, in view of Section 17(1-A) of the Registration Act 1908, which is extracted hereunder for ready reference. "17. Documents of which registration is compulsory - . . . . . . . . . . (1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, and if such documents are not registered on or after such commencement then, they shall have no effect for the purposes of the said section 53-A." 11. The said sub-section was inserted in the statute book with effect from 24.9.2001 by Act 48 of 2001. Whereas, the agreement to sell Ex.B1 was of the year 2002. 12. Admittedly, the said agreement to sell is not a registered one and in such a case, the question of invoking Section 53A of the Transfer of Property Act would not arise at all and the contentions https://hcservices.ecourts.gov.in/hcservices/ of the appellants based on Section 53A, have to be rejected in limini. 13. I would also incidentally point out that the Courts below as well as both sides fell into error in not noting the fact that the very agreement to sell Ex.B1 itself was not sufficiently stamped. As per Article 5(j) to Schedule-I of the Indian Stamp Act, which is extracted hereunder, "Art.5. Agreement or Memorandum of an Agreement - (a) . . . . . (b) . . . . . . . . (j) If not otherwise provided for; Twenty rupees the appropriate minimum stamp duty payable was Rs.20, as that has been the law ever since 11.7.2001. Without any demur or objection from any quarter, the said agreement to sell was mechanically marked, which in my opinion was not correct. 14. The implication of Ss.35 and 38 and other provisions of the Indian Stamp Act are well known and axiomatic. Be that as it may; now, it has to be seen as to whether such an agreement to sell was tampered with or not. 15. A mere poring over of the said agreement to sell-Ex.B1 would reveal that corrections were made thereon. The averments including the corrections found in Ex.B1-the agreement to sell vis-a-vis the deposition of Mani-D.W.1, if taken into account, they do not go hand in hand or hang together. The explanation given by Mani tantamounts to putting a square peg in a round hole. 16. D.W.1 Mani the appellant herein, in his deposition would project and portray as though as on the date of purchase of the stamp papers, the said document-Ex.B1 was scribed. A perusal of Ex.B1 would demonstrate and display that it is found written on four sheets of papers and out of them two sheets are embossed stamp papers of the value of Rs.5/- each. Those embossed stamp papers would bear the date of sale of such papers as 25.3.2002. If it is so, then in the agreement the date 25.3.2002 should have found reflected. However strikingly Ex.B1 would read as though the date of scribing of it was 1.12.2002. As such, there is incoherence and inconsistency between the deposition of D.W.1 and the versions as found in Ex.B1. The word 'December' is found inserted by different mechanism; however, the rest of the words are the artifact of computer device. 17. The learned counsel for the appellant would try to explain and expound by pointing out that after getting the agreement-Ex.B1 scribed, it was handed over to Jayavel for getting signatures of Jayavel and 7 others-the landlords concerned and in that process what actually happened was not known to Mani, as it was done on Q.T. https://hcservices.ecourts.gov.in/hcservices/ 18. In fact, the records would speak, pellucidly and palpably that the landlords were residing in Chennai; whereas, Mani the appellant herein was residing in Keelottivakkam Village. It is also precisely not known as in which location the signatories put their signatures and as to how the witnesses two in number also were present and put their signatures, after witnessing the signatories putting their signatures. 19. The learned counsel for the second appellant would submit that the factum of the execution of the agreement-Ex.B1 is not a disputed one and in such a case, this Court may not go into that aspect; the only issue that has to be probed into is as to whether there was any tampering with Ex.B1 or not. Even assuming that such an argument is tenable, the appellant is duty bound to explain as to why the said correction in the form of inserting the word 'December' emerged in Ex.B1. 20. Over and above that the period of performance, in sheet No.3 of Ex.B1, is found corrected as '12 months'. Both the corrections were not attested by any one. The Courts below appropriately and appositely, correctly and convincingly, applying the preponderance of probabilities and the appropriate ratiocination held that those were all alterations. 21. The question arises as to whether those are all material alterations effected unauthorisedly. 22. It is readily understandable and legally inferable that such corrections relating to the date and the month of execution of a document and the period of performance of the contract contemplated therein should necessarily be taken as material ones and that too in the peculiar facts of this case. The Court cannot be expected to cut some slack in favour of the appellant. In view of such unauthorised material corrections, it was virtually held by both Courts that Ex.B1 had disaster whither all over and that the probability of specifically enforcing it had become a well neigh impossibility. 23. The respondents herein would claim that in fact, the said agreement emerged on 1.12.2002 and the suit O.S.No.104 of 2005 itself was filed on 22.11.2005. According to them only six months' time was contemplated as the period of performance. As on the date of presentation of the plaint, even after excluding the said six months' period, three years limitation period got expired as per Article 54 of the Limitation Act, 1963. As such, the said material alteration affected the very maintainability of the case. 24. The Courts below au fait with law and au courant with facts and also taking into account the oral as well as documentary evidence https://hcservices.ecourts.gov.in/hcservices/ arrived at the just conclusion that the said agreement-Ex.B1 was materially and that too unauthorisedly altered. It beats me as to how the appellant could justify his grounds. 25. The learned counsel for the appellant cited the following precedent. AIR 1997 SUPREME COURT 336 – LOONKARAN SETHIA ETC., V. MR.IVAN E.JOHN AND OTHERS ETC., certain excerpts from them would run thus: "23. Question 5 : Before proceeding to determine this question, it would be well to advert to the legal position bearing on the matter. As aptly stated in para 1378 of Volume 12 of Halsbury’s Laws of England (Fourth Edition) “if an alteration (by erasure, interlineation, or otherwise) is made in a material part of a deed, after its execution, by or with the consent of any party to or person entitled under it, but without the consent of the party or parties liable under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorised the alteration, and those claiming under him, from putting the deed in suit to enforce against any party bound by it, who did not consent to the alteration, any obligation, covenant, or promise thereby undertaken or made. A material alteration, according to this authoritative work, is one which varies the rights, liabilities, or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void, or which may otherwise prejudice the party bound by the deed as originally executed. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed. 30. As the abovementioned alterations substantially vary the rights and liabilities as also the legal position of the parties, they cannot be held to be anything but material alterations and since they have been made without the consent of the defendants first set, they have the effect of cancelling the deed. Question 5 is, therefore, answered in the affirmative" 26. There is no quarrel with the proposition as found enunciated and laid down in the cited decision; but the factual and legal discussion supra would convey and cannote that the said decision has been cited out of context and it would not enure to the benefit of https://hcservices.ecourts.gov.in/hcservices/ the appellant herein. 27. The learned counsel for the appellant, by inviting the attention of this Court to the averments in Ex.B1 and also the oral evidence on record, would develop his arguement that ever since the date of emergence of Ex.B1, the possession of the appellant got itself converted into one of an agreement holder and not that of a lease holder and accordingly, he would cite the following decisions. (i) (1973) 2 SUPREME COURT CASES 197 – ARJUNLAL BHATT MALL GOTHANI AND OTHERS V. GIRISH CHANDRA DUTTA AND ANOTHER, certain excerpts from it would run thus: "5. We are satisfied that both the courts below have arrived at the correct conclusion that there is no evidence at all to justify an inference that the agreement in question was obtained from the appellants under undue influence or coercion. None of the instalments were paid as agreed upon. The application made by the appellants on March 31, 1960, as well as the application made subsequently are patently dishonest attempts at avoiding payment of the instalments as agreed upon. Under clause (5) of the agreement the question of giving notice arises only if the vendor wanted to forfeit the instalments paid by the purchaser. Not even one instalment having been paid the question of forfeiture does not arise and no notice was necessary for cancelling agreement. It stood automatically cancelled. It was sought to be argued before us that once the agreement stood cancelled the appellants stood restored to their original position as tenants and the suit could not be filed without giving notice under the Transfer of Property Act. We are of opinion that when the agreement, dated June 7, 1959, was entered into the old relationship of landlord and tenant came to an end. The rights and liabilities of the parties have to be worked out on the basis of that agreement. This is obvious from the fact that there was no provision for payment of any rent till the whole purchase money was paid or even for the balance of the purchase money that may be due after one or more instalments were paid. There was no provision even for payment of interest in respect of the whole of the purchase money or any of the instalments. Therefore, when the agreement stood cancelled the plaintiff was automatically entitled to possession under the terms of the agreement." (ii) AIR 2003 SUPREME COURT 4149 – R.KANTHIMATHI AND OTHER V. MRS.BEATRICE XAVIER, certain excerpts from it would run thus: "5. Submission for the tenant is after entering into the agreement, the landlady accepted Rs 20,000 confirming https://hcservices.ecourts.gov.in/hcservices/ delivery of possession in this context which already constitutes the clear intent of the landlady of entering into a new relationship with the tenant under it. On the other hand, learned counsel for the respondent submits that the words “already been surrendered” therein, only refer to the existing possession of the tenant and nothing more. So far as this submission for the respondent is concerned we have no hesitation to reject the same. The reference of the words “already been surrendered” has been incorporated with consciousness. This is to be construed in the background of the landlady having received a major amount of sale consideration and as normally, if a substantial sum is received by the seller, the purchaser is put in possession of the property hence to fall in the same lines the said words were used to confirm this possession in this context. There could be no other reason to record therein as such. Even if it be said to refer to the possession as a tenant the reassertion in the agreement of sale is only for the purpose of denoting possession given in pursuance of this agreement of sale. 6. Any jural relationship between two persons could be created through agreement and similarly could be changed through agreement subject to the limitations under the law. Earlier when the appellants were inducted into tenancy it only means both agreed that their relationship was to be that of landlord and tenant. Later when the landlord decided to sell this property to the tenant and the tenant agreed by entering into agreement, they by their positive act changed their relationship as purchaser and seller. When the seller-landlord accepts the sum he actually acts under this agreement. This acceptance preceded by agreement of sale changes their relationship. This is how they intended. Once accepting such a change, their relationship of landlord-tenant ceases." (iii) (2006)4 MLJ 1634 – S.GURUMURTHY V. N.RAMAN, certain excerpts from it would run thus: "(A) Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), Section 10(2)(i) –