1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:20.01.2011 CORAM: THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A(MD)NO.30 of 2011 P.Thavamani ...Appellant/Plaintiff .vs. 1. P.Madasamy 2. P.Aasaithambi ...Respondents/Defendants PRAYER : Second Appeal filed under Section 100 of Civil Procedure Code, praying this Court to set aside the judgement and decree made in A.S.No.6 of 2002,dated 06.08.2003, on the file of the Principal Subordinate Judge,Madurai confirming the judgment and decree made in O.S.No.282 of 1999, dated 10.10.2001, on the file of the District Munsif,Madurai Taluk. For Appellant :M/s.S.Rengasamy JUDGMENT The unsuccessful plaintiff who failed in the trial court and in the first appellate court to get a decree for specific performance based on an agreement, dated 03.10.1999 allegedly executed by the first respondent herein/first defendant in favour of the appellant herein/plaintiff has brought forth this second appeal against the decree, dated 06.08.2003, passed by the Principal Subordinate Judge, Madurai in A.S.No.6 of 2002, confirming the decree, dated 10.10.2001, passed by the District Munsif, Madurai Taluk in O.S.No.282 of 1999. 2. The respondents 1 and 2 herein and one Paulraj were the sons of Padugamuthu Nadar. The suit property and the adjacent properties originally belonged to the family consisting of Padugamuthu Nadar and his sons. Padugamuthu Nadar, during his lifetime itself, effected a partition of the family properties and in such partition, the suit property was allotted to the share of the first respondent/first defendant herein, namely Madasamy. After partition, the suit property was in exclusive possession and enjoyment of the said Madasamy. The appellant/plaintiff is none other than the wife of Paulraj, the other brother of the respondents herein. All the above said facts have not been disputed and on the other hand, have been admitted. 3. Contending that the first respondent Madasamy agreed to sell https://hcservices.ecourts.gov.in/hcservices/ 2 the suit property to the appellant/plaintiff for a sum of Rs.25,000/- and executed an unregistered sale agreement on 03.10.1999 in favour of the appellant/plaintiff on which day itself a sum of Rs.15,000/- was paid as advance; that the transaction was agreed to be completed within three months; that the first respondent/Madasamy evaded execution of the sale deed which made the appellant/plaintiff to issue a Lawyer's notice on 22.11.1999; that the first respondent did not receive the said notice and that hence, the appellant/plaintiff was constrained to file a suit for specific performance, the appellant/plaintiff filed original suit O.S.No.282 of 1999 on the file of the learned District Munsif, Madurai Taluk at Madurai against the first respondent/Madasamy alone. 4. The suit was resisted by the first respondent(Madasamy) denying execution of the suit sale agreement and the other plaint allegations regarding the terms of the agreement. It was also contended in the written statement of the first respondent/first defendant that on 18.08.1999 itself, the first respondent entered into an agreement with Aasaithambi(second respondent) to sell the suit property to him for a sum of Rs.20,000/-; that pursuant to the said sale agreement on 22.11.1999, a sale deed was executed in his favour conveying the suit property to him; that the appellant/plaintiff having got full knowledge of the said sale transaction, suppressing the said fact and concocting the suit sale agreement, approached the court for specific performance and that the suit was bad for non-joinder of necessary party insofar as Aasaithambi was not made a party. It had also been contended therein that pursuant to the sale made on 22.11.1999, Aasaithambi was having possession and enjoyment of the suit property. 5. Subsequently, the appellant/plaintiff filed I.A.No.160 of 2001 for impleading Aasaithambi and by virtue of an order, dated 20.02.2001 made in the said interlocutory application, Aasaithambi was impleaded as second defendant. Aasaithambi, after having been impleaded as second defendant, filed a written statement denying the plaint allegations and contending that he had purchased the property from the first respondent and was in possession and enjoyment of the same. He had also contended that the suit agreement for sale dated 03.10.1999 was a fraudulent and fabricated document. The second respondent Aasaithambi also contended that irked by the act of the first respondent, the appellant/plaintiff tried to cause disturbance to the second respondent's peaceful possession and enjoyment of the suit property, which lead to the lodging of a complaint with the police. Based on the said averments, the second respondent/second defendant also prayed for the dismissal of the suit filed by the appellant/plaintiff. 6. In addition to resisting the suit filed by the appellant/plaintiff, the second respondent Aasaithambi also filed a suit on the file of the trial court in O.S.No.125 of 2000, seeking the relief of perpetual injunction against the husband of the appellant herein and appellant herein not to disturb his peaceful possession and enjoyment of the suit property. Allegations similar to the averments found in the plaint in this case were made by the appellant herein and her husband Paulraj in their written statement filed in the said suit for perpetual injunction. https://hcservices.ecourts.gov.in/hcservices/ 3 7. Both the suits were tried jointly and in fine, the trial court dismissed the suit filed by the appellant herein for the relief of specific performance holding that the suit agreement for sale, dated 03.10.1999 was not proved to be genuine and decreed the sut O.S.No.125 of 2000 filed by the second respondent and granted the relief of permanent injunction as sought for. 8. As against the decree granted in O.S.No.125 of 2000 filed by the second respondent herein (Aasaithambi), no appeal seems to have been filed. On the other hand, the appellant/plaintiff chose to prefer an appeal in A.S.No.6 of 2002, on the file of the first appellate court challenging the decree passed in O.S.No.282 of 1999 dismissing the said suit filed by the appellant herein/plaintiff. The learned Principal Subordinate Judge, Madurai(first appellate judge), after hearing, confirmed the decree passed by the District Munsif, Madurai Taluk(trial court). As against the decree of the first appellate court passed in A.S.No.6 of 2002 confirming the decree passed by the trial court in O.S.No.28 of 1999, the present second appeal has been preferred by the appellant herein/plaintiff on various grounds set out in the memorandum of appeal. 9. A second appeal against a decree passed by a court subordinate to the High Court in an appeal suit shall lie to the High Court under Section 100 of Civil Procedure Code only on a substantial question of law. Questions of facts cannot be the basis on which the second appeal can be entertained unless such finding of fact is proved to be perverse,in which case it will get elevated to the level of a substantial question of law. 10. The appellant had prayed for the relief of specific performance of a contract under the suit agreement for sale, dated 03.10.1999. The suit agreement has been produced as Ex.A1. A copy of the lawyer's notice, dated 22.11.1999, allegedly sent by the plaintiff through her lawyer to the first respondent and the unserved cover have been produced as Ex.A2 and Ex.A3 respectively. Apart from the three documents, no other document was produced by the appellant/plaintiff on her side. The respondents have produced seven documents and marked them as Ex.B1 to Ex.B7. They are partition deed evidencing the admitted partition in the family of Padugamuthu Nadar, patta granted based on the partition, sale agreement between the first and second respondents, sale deed dated 22.11.1999 executed by the first respondent in favour of the second resondent, subsequent patta issued in the name of the second respondent, property tax receipts in the name of the first respondent and copies of a police complaint and receipt thereof. All those documents relate to the claim of the respondents that there was a valid sale agreement which was followed by a valid registered sale in favour of the second respondent and that the second respondent get possession under the said sale. 11. It is not in dispute that a sale had taken place under Ex.B4 in respect of the suit property in favour of the second respondent. The learned counsel for the appellant would contend that though the sale deed Ex.B4 is dated 22.11.1999, the same was registered only in March 2000 and that hence, the said sale transaction should be construed to be a transaction that took place after the filing of the suit and hence shall https://hcservices.ecourts.gov.in/hcservices/ 4 be hit by the doctrine of lis pendens. A sale that takes place during the pendency of the suit is not void. The doctrine of lis pendens does not invalidate the transactions that take place pending adjudication of the lis. On the other hand, the cordinal principle embedded therein is that such transactions pendente lite shall be subject to the result of the pending litigation and the person who derive title from a party to the said litigation shall be bound by the decree passed in the case even though he might not have been made a party to that proceedings for the simple reason enters into the transaction with a party to the pending the proceedings. 12. In this case, we need not and cannot go into the question of validity of the sale that took place in favour of the second respondent under Ex.B4. We have to see whether the second respondent also is bound by the contract allegedly entered into by the first respondent with the appellant/plaintiff under Ex.A1. In order to successfully hold the subsequent purchaser also liable under the agreement, the person propounding the agreement should be in a position to prove the agreement and his/her readiness and willingness to perform his/her part of obligation under the agreement. In this case, the very execution of Ex.A1 has been denied and disputed. Its genuineness has also been disputed. Therefore, the burden is on the appellant/plaintiff to prove the genuineness of Ex.A1 agreement. In order to prove the suit agreement, the appellant/plaintiff, besides examining herself as P.W.1, has also chosen to examine the scribe of Ex.A1 as P.W.2. No other witness has been examined on her side. On the other hand, the first respondent has been examined as D.W.1 who has totally denied the plaint allegations regarding the alleged execution of Ex.A1 agreement for sale. The second respondent has spoken about Ex.B3 agreement preceeding Ex.B4-sale and also his possession and enjoyment of the suit property pursuant to the purchase made by him under Ex.B4. It should also be noticed that Padugamuthu Nadar, the father of the respondents 1 and 2, who is also the father-in- law of the appellant/paintiff, figured as D.W.3 and deposed in support of the case of the respondents. It is also pertinent to note that one of the attestors of Ex.A1 agreement was examined as D.W.4. 13. The courts below have closely scrutinised the evidence of the witness as examined on both sides and came to the conclusion that excepting the ipsi dixit of P.W.1/appellant herein, the evidence of other witness are not in favour of her claim. The scribe of Ex.A1 who was examined as P.W.2, in his evidence, stated that he prepared Ex.A1 document without naming the purchaser and vendor under the said agreement. Therefore courts below have rightly held that the evidence of P.W.2 would not be helpful to the appellant/plaintiff to prove the due execution of Ex.A1. As pointed out supra, none of the attestors of Ex.A1 was examined on the side of the appellant/plaintiff. On the other hand, one of the attestors was examined on the side of the defendants as D.W.1. Of course, it is true that he would admit that the signature found in Ex.A1 in the attesting column is that of his. But, he would further state that when he signed as an attestor, the document did not contain the signature of the first respondent/Madasamy and that it contained only the signature of the appellant/plaintiff. This aspect was rightly commended upon by the courts below and held to be detrimental to the plaintiff's case. Apart from the fact that no other evidence is available to prove due execution of Ex.A1 excepting the interested https://hcservices.ecourts.gov.in/hcservices/ 5 testimony of P.W.1, the courts below have also held that the Ex.B3- agreement and Ex.B4-sale deed were true since the father of the parties themselves attested the said agreement. The plaintiff was non-suited by the trial court for the relief of specific performance mainly on the ground that she was not able to prove Ex.A1-agreement to be true. 14. Of course, it is true that the lower appellate court while dealing with the appeal has also made an observation that the findings recorded in respect of O.S.No.125 of 2000 filed by the second respondent remained unchallenged and the same would amount to resjudicata. As pointed out supra, the finding and decree rendered in O.S.No.125 of 2000 to the effect that the sale transaction in favour of the second resondent was genuine and the second respondent was in possession and enjoyment of the suit property pursuant to the said sale and that shall not have any bearing on the decision to be rendered in respect of the prayer for specific performance made by the appellant in her suit in O.S.No.282 of 1999. At the cost of repetition, this Court once again reiterates the point that the relief of specific performance was declined by the trial court and the same was confirmed by the first appellate court, mainly on the ground that the plaintiff was not able to prove the genuineness of Ex.A1 agreement for sale. The said result is based on the concurrent findings of fact rendered by the courts below on a pure question of facts. The said finding is supported by reasonings which cannot be said to be perverse. Therefore, this Court comes to the conclusion that this second appeal does not even merit admission as no substantial question of law is involved in the second appeal. 15. Accordingly the second appeal is dismissed. No costs. Sd/- Assistant Registrar(Crl.Side) /True Copy/ Sub Assistant Registrar To 1. The Principal Subordinate Judge, Madurai. 2. The District Munsif, Maduri Taluk. +1 CC TO MR. V. RAMAKRISHNAN, ADVOCATE S.R NO. 2233 S.A(MD)NO.30 of 2011 20.01.2011 vsn PAM 18.05.2011/4C/5P https://hcservices.ecourts.gov.in/hcservices/