IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.03.2011 CORAM THE HONOURABLE MS. JUSTICE R. MALA Appeal Suit Nos.387 and 388 of 2008 and M.P.No.1 of 2008 1. Mumtaj 2. Syed Hassan Basha 3. Haseena 4. Reshma .. Appellants in A.S.No.387/2008/ Defendants 1 to 4 1. Mumtaj 2. Syed Hassan Basha 3. Haseena .. Appellants in A.S.No.388/2008/ Plaintiffs .. Vs .. 1. K.P. Ramasamy Gounder 2. Mylathal 3. Udumalpet Co-operative Land Development Bank, Represented by its Secretary, Udumalpet Taluk, Coimbatore District. ... Respondents in A.S.No.387/2008/ Plaintiff & Defendants 5 & 6 K.P. Ramasamy Gounder ... Respondent in A.S.No.388/2008 / Defendant Prayer in both Appeals : The First Appeals have been filed under Section 96 of C.P.C against the judgment and decree dated 16.07.2007 passed in O.S.Nos.228 of 2004 and 531 of 2006 respectively, by the learned Additional District Judge, Fast Track Court No.1, Coimbatore and to set aside the same with exemplary costs to the appellants. For Appellants : Mr.P.V.sanjeev For R-1in both the Appeals : Ms.P.T.Asha for M/s. Sarvabhauman Associates For RR-2 & 3 in Appeal 387/08 : No appearance https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT Both the appeals have been arising out of the judgment and decree dated 16.07.2007 passed in O.S.Nos.228 of 2004 and 531 of 2006 respectively, by the learned Additional District Judge, Fast Track Court No.1, Coimbatore. 2. The averments made in the plaint in O.S.No.228 of 2004 are as follows:- The suit property is originally belonging to one Ibrahim, who is none other than the husband of the first defendant and father of defendants 2 to 4. The said Ibrahim got the property under a Settlement Deed executed by his mother Rokkiyabeevi on 17.06.1968 and he was in possession till his death. He died on 07.05.1998 leaving behind the defendants 1 to 4 as his sole heirs. On 11.05.2003, the plaintiff and defendants 1 to 4 have entered into a Sale Agreement and the sale price was fixed at Rs.10,00,000/-. On that date, a sum of Rs.1,00,000/- has been paid to the defendants 1 to 4 as an advance. It is agreed to pay a sum of Rs.3,00,000/- within a week. After, it is also agreed by both parties that the possession has been handed over to the plaintiff on receipt of Rs.3,00,000/-. Six months time has been granted for taking the balance sale consideration and got the Sale Deed to be executed. On 14.05.2003, the plaintiff has paid a sum of Rs.3,00,000/- to defendants 1 to 4 and obtained the possession of the property. The property in possession was leased out to one Kanjimalai and Selvaraj for seven years, and a sum of Rs.25,000/- was fixed as an lease amount for one year. On 20.08.2001, a Lease Deed was also registered about the same. The said Kanjimalai and Selvaraj have filed a Suit against the defendants 1 to 3 for permanent injunction. Hence, a panchayat has been convened in the presence of Udumalpet Chairman Mr.T.T.Gnana Murugan and Dhali Village Panchayat President Mr.Kumaravel. In that, it was agreed that they will release the lease hold right on receipt of Rs.3,00,000/-. In pursuance of that, Rs.3,00,000/- has been paid by the plaintiff and the defendants 1 to 3 have agreed to take it as an advance and got the Lease Release Deed in favour of defendants 1 to 3. The lessor has removed the electrical starter wires and Ose pipes. So, the plaintiff, after taking possession of the property, has purchased new electrical starter wires and other ose pipes, out of his own money. The plaintiff has also renovated the well situated in the suit property. The plaintiff has spent a sum of Rs.1,50,000/- for reclaiming the 8 acres of suit property. So, that amount of Rs.1,50,000/- ought to have been repaid by the defendants 1 to 4. After 1 ½ of months, the defendants 1 to 4 have received a sum of Rs.1,25,000/- on 29.06.2003 and they have also made an endorsement to that effect. So far, as on 29.06.2003, defendants 1 to 4 have received a sum of Rs.5,25,000/-. Subsequently, they https://hcservices.ecourts.gov.in/hcservices/ have received a sum of Rs.15,000/- for medical expenses. In total, the plaintiff has paid a sum of Rs.5,40,000/- to the defendants 1 to 4. The balance is only Rs.4,60,000/-. (ii) The plaintiff was and is always ready and willing to perform his part of contract. When the plaintiff demanded the Encumbrance Certificate, the defendants 1 to 4 have not given the same. Therefore, the plaintiff has filed a petition before the Komangalam Sub Registrar's Office for getting the Encumbrance Certificate and on 22.08.2003, he has received the same. Then only the plaintiff came to know that the property was mortgaged to Udumalpet Co-operative Land Development Bank for Rs.50,900/- and also the defendants 1 to 4 have entered into a Sale Agreement with Mayilathal, who is the fifth defendant. When the plaintiff has made an enquiry about the Sale Agreement with Mayilathal, the defendants 1 to 4 said that they received a sum of Rs.1,00,000/- as a loan from the said Mayilathal. That Sale Agreement has been executed only for a security for the amount lent. Since the defendants are taking steps to alienate the property, the plaintiff had issued a notice through his counsel on 27.08.2003 to the defendants 1 to 5. Even though defendants 1, 3, 4 and 5 have received the notice, the fourth defendant alone has issued a reply notice with false allegations. On 08.09.2003, the plaintiff has sent another notice. But the defendants 1 to 3 have not received the same. The fourth defendant alone has received the notice. The plaintiff was present in the Registration Office for getting Sale Deed from the defendants, who never turned out. The plaintiff was always ready and willing to perform his part of contract. Now, the defendants 1 to 4 along with fifth defendant have taking steps to eject the plaintiff from the suit property. Hence, the plaintiff has constrained to file a suit for specific performance and also alternatively for refund of advance amount paid and prayed for a decree. 3. The gist and essence of the written statement filed by the first defendant, adopted by D.2, D.3 and D.5 is as follows:- The suit property was joint family property. The defendants 1 to 3 have already entered into a Sale Agreement with the fifth defendant-Mayilathal on 03.04.2003. The property was leased out to one Kanjimalai and Selvaraj. Annual lease amount was fixed at Rs.25,000/-. Lease period is seven years. So, they are in possession. Lessees have filed a suit in O.S.No.340 of 2001 before the learned District Munsif, Udumalpet, praying for permanent injunction. On 01.04.2003, a panchayat has been convened in the presence of Udumalpet Chairman Mr.T.T.Gnanamurugan and Dhali Village Panchayat President Mr.Kumaravel. In that panchayat, Mr.Shanmugavel, who is relative of plaintiff, is also participated. In the panchayat, it was https://hcservices.ecourts.gov.in/hcservices/ decided that the defendants 1 to 3 have to pay a sum of Rs.1,50,000/- each to the lessees. So, to settle that amount, defendants 1 to 3 have entered into a Sale Agreement with the fifth defendant-Mayilathal for Rs.2,00,000/-. On the date of agreement, defendants 1 to 3 have received Rs.1,00,000/- as an advance and on 05.06.2003 they paid the balance amount to the lessees and got the Registered Surrender Deed and taken possession of the property. So, the defendants 1 to 3 are in possession and enjoyment of the same. The suit property was consisting of 400 coconut trees. The value of the property was more than Rs.20,00,000/-. When the plaintiff has demanded sale of the property, the defendants 1 to 3 refused to do so. The first defendant was a widow. On 02.04.2001, the second defendant met with an accident and therefore, he was bedridden. Taking note of the defendants pitiable condition, the plaintiff, with the help of his close relatives of Gnanamurugan, Kumaravel and Arumugam, concocted and fabricated Sale Agreement-Ex.A.1 as if the sale price has been fixed at Rs.10,00,000/-; on the same day, a sum of Rs.1,00,000/- has been paid as an advance; after one week, a sum of Rs.3,00,000/- alleged to have been paid and later a sum of Rs.1,25,000/- has been paid to the defendants. The defendants have never executed any sale agreement in favour of the plaintiff. On 10.12.2003, the plaintiff, along with his relatives, attempted to interfere with the peaceful possession and enjoyment of the defendants. So, the defendants have constrained to file a suit for Permanant injunction in O.S.No.283 of 2004 on the file of the District Munsif Court, Udumalpet. The plaintiff has no prima facie case. Hence, the defendants have prayed for dismissal of the suit. 4. The gist and essence of the additional written statement filed by the defendants 1, 2 and 3 is as follows:- The suit property was leased out to one Kanjimalai and Selvaraj on 20.08.2001 for seven years. Annual lease amount was fixed at Rs.25,000/-. One of the lessees viz., Kanjimalai was closely related to one Mr.Kannaiyan @ Shanmugavel. The plaintiff's daughter was given in marriage to Shanmugavel's son. At the instance of Kanjimalai, the dispute between the defendants 1 to 3 and the cultivating tenants was mediated in the presence of Shanmugavel, Gnanamurugan, Union Chairman of Udumalpet, Mr.Kumaravel, President of Dhali Panchayat and Dubai Arumugam. Later, the plaintiff also joined in the mediation. As per the panchayat held on 01.04.2003, it was agreed that the tenants should vacate the property and in turn, defendants 1 to 3, should pay a sum of Rs.3,00,000/- to them. The said Mr.Shanmugavel owned 2 acres of Nanja lands near the suit property. At the time of panchayat, Mr.Shanmugavel requested the defendants 1 to 3 to sell the property for which the latter refused. The fourth defendant was not in cordial terms with the defendants 1 and 2 in https://hcservices.ecourts.gov.in/hcservices/ the year 2001 after her marriage. She was residing at Angalakurichi along with her husband. (ii) In order to pay off the amount to the tenants and take possession, the defendants 1 to 4 have approached the fifth defendant for getting loan of Rs.2,00,000/-, for which, the latter also agreed. However, the fifth defendant and her husband want to register a sale agreement in respect of the suit property to lend money. However, they assured to cancel the agreement on repayment of loan of Rs.2,00,000/- with interest thereto. So, a Sale Agreement in favour of the fifth defendant has been executed and registered by the defendants 1 to 4 on 03.04.2003. On that date, a sum of Rs.1,00,000/- has been received by the defendants 1 to 4 as an advance. All the panchayadars inclusive of Dubai Arumugam and Mr.Shanmugavel and the plaintiff were present. Accordingly, the deed of surrender of lease was prepared on the day. Mr.Shanmugavel, colluding with Dubai Arumugam and plaintiff, had illegally schemed to grab the suit property from the defendants 1 to 4 as they refused to sell. On 19.05.2003, on the guise of obtaining signatures in the deed of surrender of lease in favour of the tenants, signatures of the defendants 1 to 4 were obtained in a prepared agreement for sale in the name of the plaintiff which the defendants 1 to 4 had no knowledge. The first defendant is an illiterate. Defendants 2 to 4 were not well educated. Bona fide believing that they were signing the surrender deed and documents connected thereto for registration, they put their signature in all the papers. Mr.Shanmugavel, the plaintiff and the attestors could have fraudulently obtained the signature of the defendants 1 to 4 in the agreement for sale. Mr.Shanmugaval and the plaintiff were well aware of the registered Sale Agreement dated 03.04.2003. The fifth defendant could not pay the agreed amount of Rs.1,00,000/-. Hence, the registration could not be done on 19.05.2003. Subsequently, on 05.06.2003, the fifth defendant has paid a sum of Rs.1,00,000/- to the defendants 1 to 4. Therefore, registration was completed on 05.06.2003. The suit agreement for sale is a fabricated one. So, the plaintiff is not entitled to decree of specific performance. The defendants 1 to 4 have absolutely no intention to sell the property. Mr.Shanmugavel and the plaintiff have obtained the signatures of the defendants on the reserve of the 1st two sheets of agreement with no recital therein which have been fabricated into endorsement dated 14.05.2003 and 29.06.2003. The plaintiff has paid no amount to the defendants 1 to 4 on the respective dates. The deed of surrender has been executed on 19.05.2003 and it was registered on 05.06.2003. The defendants 1 to 4 took possession of the property from the tenants only on 05.06.2003. So, the plaintiff was not put into possession on 14.05.2003. Thus, the plaintiff has pleaded a false case and approached the Court with unclean hands. Hence, he is not https://hcservices.ecourts.gov.in/hcservices/ entitled to equitable relief of specific performance. He is also not entitled to alternate relief of refund of advance amount, as he did not pay any amount to the defendants. The averement that the plaintiff has reclaimed the land and also purchased wires and pipes and installed in the suit property is absolutely false and baseless. The plaintiff has not paid any amount to the defendants 1 to 4 to meet out the medical expenses for the first defendant. (iii) Without prejudice to the above contentions, the defendants submit that the alleged readiness and willingness pleaded in the plaint are only "make believe" allegations intended to defraud the defendants and grab their property. The defendants never intended to sell the suit property. Hence, the defendants have prayed for dismissal of the suit. 5. The averments made in the plaint in O.S.No.531 of 2006 are as follows:- The suit property was owned by one Ibrahim, who got the same by way of settlement deed dated 17.06.1968 executed by his mother. From the date of settlement deed till his death he was in possession and enjoyment of the property. In the year 1998, he died intestate leaving behind the plaintiffs as his sole heirs i.e., the first plaintiff is his wife and the plaintiffs 2 and 3 are his children. The plaintiffs 1 to 3 are leased out the property to one Kanjimalai and Selvaraj on 20.08.2001, for seven years under a Registered Lease Deed. So, the lessees are in possession and enjoyment of the same. There was a dispute between the Tenants and the plaintiffs. So, the Tenants have filed a suit in O.S.No.340 of 2001 for bare injunction in respect of the suit. A panchayat was convened on 01.04.2003 in the presence of plaintiff K.P.Ramasamy Gounder and his Sammanthy R.Shanmugavel along with Udumalpet Union Chairman Gnanamurugan and Dhali Grama Panchayat President Kumaravel. In the Panchayat, it was decided that the plaintiffs ought to have paid a sum of Rs.1,50,000/- each to the tenants and after receipt of the amount, the tenants must hand over the possession to the plaintiffs. In pursuance of that, the plaintiffs entered into an agreement of sale with one Mayilathal on 03.04.2003 for Rs.2,00,000/- and received a sum of Rs.1,00,000/- on the same day. The balance sum has been received in the month of June and paid a sum of Rs.3,00,000/- to both Kanjimalai and Selvaraj and obtained a Registered Lease of Surrender Deed and obtained the possession. Now, the suit property is in possession and enjoyment of the plaintiffs. The value is more than Rs.20,00,000/-. The plaintiffs have refused to give the suit property to the defendant. The first plaintiff was a widow. On 02.04.2001, the second plaintiff met with an accident and therefore, he was bedridden. Taking note of their pitiable https://hcservices.ecourts.gov.in/hcservices/ condition, the defendant, with the help of his close relatives of Gnanamurugan, Kumaravel and Arumugam, concocted a fabricated Sale Agreement, dated 11.05.2003 as if the sale price has been fixed at Rs.10,00,000/-; on the same day, a sum of Rs.1,00,000/- has been paid as an advance; after one week, a sum of Rs.3,00,000/- alleged to have been paid and later a sum of Rs.1,25,000/- has been paid by the defendant to the plaintiffs. There is no such sale agreement. The plaintiffs have never received any amount from the defendant. The defendant has filed a suit in O.S.No.229 of 2003 for specific performance. On 10.12.2003, the defendant, along with his relatives, attempted to interfere with the plaintiffs' peaceful possession and enjoyment. Hence, the plaintiffs are constrained to file a suit for baree injunction restraining the defendant from interfering with their possession. 6. The gist and essence of the written statement filed by the defendant in O.S.No.531 of 2006 is as follows:- The plaintiffs and the defendant and one Reshma have entered into a sale agreement on 11.05.2003 for Rs.10,00,000/-. They received a sum of Rs.1,00,000/- on the date. The second instalment of Rs.3,00,000/- has been paid and facilitating to hand over Rs.3,00,000/- to one Kanjimalai and Selvaraj and obtained an endorsement from the plaintiffs that Surrender Deed also handed over to the defendant. So, contra to these are false and imaginary, the defendant has spent a sum of Rs.1,50,000/- for improving the suit property. The plaintiffs never in possession and enjoyment of the same. The value mentioned by the plaintiffs is not correct. It is also false to contend that the sale agreement was concocted by the defendant with the help of his relatives and seized the documents with the help of his relatives has been totally false and baseless. The Sale Agreement is true and genuine one. The plaintiffs and the said Reshma have accepted and consented for entered into a sale agreement and received a portion of the sale consideration and handed over the possession and made an endorsement. No cause of action for the suit. Hence, the defendant had prayed for dismissal of the suit. 7. The learned trial Judge, after considering the arguments advanced by the learned counsel on either side as well as the averments both in the plaint and written statement filed by defendants in both the suits, had framed three issues in O.S.No.228 of 2004 and four issues in O.S.No.531 of 2006. Joint trial was ordered. After considering the oral evidence of P.Ws.1 and 2 and D.Ws.1 to 3 and the documentary evidence of Exs.A.1 to A.20 and Exs.B.1 to B.4, the learned trial Judge had dismissed the suit in O.S.No.531 of 2006, against which A.S.No.388 of 2008 has been preferred by the plaintiffs. In O.S.No.228 of 2004, the learned Judge has granted a decree of specific performance in favour of the plaintiff and three months time has been granted, https://hcservices.ecourts.gov.in/hcservices/ against which, the defendants in the trial Court has come forward with A.S.No.387 of 2008. 8. After Considering the arguments advanced by the learned counsel on either side, this Court had framed the following points for consideration:- "1. Whether the trial Court is correct in holding that Ex.A.1-Sale Agreement is true and genuine? 2. Whether the trial Court is correct in granting decree of specific performance? 3. Whether the trial Court is correct in dismissing the suit for injunction filed by the appellants? 4. To what relief the appellants are entitled to in both the appeals?" 9. The learned counsel appearing for the appellants would submit that the suit property is originally owned by Ibrahim, H/o. the first appellant, who got the same by settlement deed executed by his mother under Ex.A.7. He died intestate. So, the appellants as well as Reshma inherited the property. They are the owners of the property. The appellants have entered into a lease agreement under Ex.A.4 with one Kanjimalai and Selvaraj. That Kanjimalai and Selvaraj have filed a suit in O.S.No.340 of 2001 on the file of the District Munsif Court, Udumalpet. Along with the suit, they have also filed an application in I.A.No.1641 of 2001 and obtained an order of interim injunction against the appellants on 22.11.2001. So, a panchayat has been convened. In that panchayat, it was agreed that the appellants ought to pay a sum of Rs.1,50,000/- each to Kanjimalai and Selvaraj for the reason that they entered into a sale agreement with the fifth defendant Mayilathal under Ex.B.2 for Rs.2,00,000/-. A sum of Rs.1,00,000/- has been received as an advance. Subsequently, in the month of June, he paid another sum of Rs.1,00,000/- and the appellants have paid a sum of Rs.3,00,000/- to the said Kanjimalai and Selvaraj and obtained a Registered Surrender Deed- Ex.A.3. They are in possession and enjoyment of the property, while obtaining the signature, in the Surrender Deed, the respondent K.P.Ramasamy and his Sammanthi Shanmugavel and his close associates and relatives Gnanamurugan, Kumaravel and Dubai Arumugam have obtained the signatures from the appellants and fabricated the documents Exs.A.1, A.2 and A.5. So, the trial Court has not considered that Exs.A.1, A.2 and A.5 are fabricated documents. 10. The learned counsel appearing for the appellants has https://hcservices.ecourts.gov.in/hcservices/ further submitted that the value of the property is more than Rs.20,00,000/-. The adjacent to suit property was belonging to one Shanmugavel, who is none other than the Sammanthi of the respondent K.P.Ramasamy. So, in the panchayat, they stealthily obtained the signatures from the appellants and fabricated it as a Sale Agreement. They have concocted Ex.A.1 to grab the suit property from the appellants. Dubai Arumugam, who is an attestor of Ex.B.2, is also an attestor in the Sale Agreement dated 11.05.2003. So, he was examined as P.W.2, who was well aware of the Sale Agreement-Ex.B.2. Even on the date of alleged Sale Agreement-Ex.A.1, the property was mortgaged with the 6th defendant viz., Udumalpet Co-operative Land Development Bank. So, all these facts have not been mentioned in Ex.A.1, which clearly proved that the document has been fabricated, taking advantage of pitiable condition of the appellants. So, the learned counsel appearing for the appellants submits that the trial Court has committed error in deciding that Ex.A.1 is true and genuine document. The learned counsel has further submitted that non-impleading of the Reshma in the suit was fatal to the case of dismissal of the injunction is not correct. Admittedly, the appellants are in possession of the suit property. The trial Court ought to have granted injunction. So, the non impleading of co-owner will not in any way affect the case. The said fact has not been considered by the trial Court. Hence, the learned counsel appearing for the appellants had prayed for allowing of both the appeals. He further submitted that he never ready and willing to perform his part of contract and he relied upon the decisions of this Court and Hon'ble Apex Court. 11. Repudiating the same, the learned counsel appearing for the first respondent would submit that Ex.A.1 is a true and genuine document. To prove the same, P.W.2 was examined, who is the attestor of Ex.A.1. The payment of Rs.3,00,000/- has been evidenced by Ex.A.2 and payment of Rs.1,25,000/- has been evidenced by Ex.A.6. The original Surrender Deed and original Lease Deed Exs.A.3 and A.4 also filed by the appellants, which shows that the suit property was and is in possession and enjoyment of the first respondent. The learned counsel has further submitted that Ex.B.2 is only a security for the loan, that has been corroborated by the evidence of D.W.2/the fifth defendant, who is the agreement holder under Ex.B.2. So, the trial Court has considered all the aspects in proper perspective and came to the correct conclusion. Hence, the learned counsel appearing for the first respondent had prayed for dismissal of both the appeals. Point No:1 https://hcservices.ecourts.gov.in/hcservices/ 12. The suit property was originally belonging to Rockiya Beevi. She executed a Settlement Deed under Ex.A.7 on 17.06.1968. In pursuance of that, Ibrahim, who is husband of the first appellant and father of appellants 2 and 3, was in possession and enjoyment of the suit property till his death. After his death, the appellants and Reshma succeeded the property. There is no dispute in respect of ownership of the property. 13. Admittedly, the Encumbrance Certificate has been marked as Ex.A.6 in between 1.1.1989 to 21.08.2003, which mentioned six transactions and out of six, two