IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.04.2010 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Appeal Suit No.1226 of 2001 P.K.Ravichandran ...Appellant(Plaintiff) Vs. V.Govindaraj ... Respondent(2nd Defendant) Appeal filed under Section 96 of Civil Procedure Code against the judgment and decree dated 12.11.2001 made in O.S.No.34 of 1997 on the file of the learned Second Additional Subordinate Judge, Erode. For Appellant :Ms.AL.Gandhimathi For Respondent : Mr.S.V.Jayaraman Senior Counsel for Mr.V.Bharathidasan ------- JUDGMENT The unsuccessful plaintiff is the appellant herein. Original Suit No.34 of 1997 was filed by the appellant on the file of the Court of II Additional Subordinate Judge, Erode for specific performance based on an agreement for sale dated 07.9.1996 and in the alternative for refund of the advance amount with interest and also for the relief of permanent injunction. 2.The appellant/plaintiff in his plaint had made the following averments: The suit property was one belonging to the respondents/defendants as their ancestral property. Deceased 1st plaintiff K.Venkatachala Gounder was the father of V.Govindaraj, respondent herein / 2nd defendant. The respondent and his father agreed to sell the suit property for a total consideration of Rs.3,60,000/-, received a sum of Rs.3,00,000/- as advance and part of the sale consideration and executed an agreement in favour of the appellant/plaintiff on 07.9.1996. As per the terms of the agreement, the appellant/plaintiff should make payment of the balance consideration within four months from the date of agreement. Possession of the suit property was also delivered to the https://hcservices.ecourts.gov.in/hcservices/ appellant/plaintiff in part performance of the contract of agreement for sale. Three years prior to the date of agreement, the appellant's father P.K.Kalianna Gounder got the property on lease from the respondent and his father / defendants 1 and 2 on a monthly rent of Rs.50/- making a payment of Rs.500/- as advance. After the death of the above said P.K.Kalianna Gounder, the appellant/plaintiff, who is his sole legal representative, started enjoying the suit property as lessee. He put up a thatched shed in the suit property and used it as a cattle shed (Thundupatti). After the suit agreement was entered into on 07.9.1996, the appellant/plaintiff continued to be in possession of the suit property both as a lessee and as the proposed purchaser under the suit agreement for sale. The appellant/plaintiff was ever ready and willing to perform his part of the contract under the suit agreement. Per contra, the respondent and his father / defendants 1 and 2 showed reluctance to execute the sale deed in favour of the appellant/plaintiff despite a specific demand made by the appellant/plaintiff. In addition to that, the respondent and his father / defendants 1 and 2 came to the suit property with their men on 23.1.1997 and insisted upon the appellant/plaintiff vacating the suit property, which was rightly declined by the appellant/plaintiff. Hence, the appellant/plaintiff was constrained to file the suit for the above said reliefs. 3.After the filing of the suit K.Venkatachala Gounder, the 1st defendant passed away. The respondent herein, who figured as the 2nd defendant and happened to be the sole legal heir of the 1st defendant, contested the suit filing a written statement containing the following allegations:- The suit of the appellant / plaintiff is not maintainable. The respondent and his father (defendants) never agreed to sell the suit property to the appellant/plaintiff. The suit agreement is not a valid one as the same is forged. The signatures found in the suit agreement are not that of the defendants. The appellant/plaintiff was never put in possession of the suit property. No agreement was executed in favour of the appellant/plaintiff by the respondent and his father on 07.9.1996. Hence, there is no question of the appellant/plaintiff being ready to make payment of the balance consideration. The plaint averment that the respondent and his father /defendants insisted upon the plaintiff vacating the suit property is nothing but an imagination of the appellant/plaintiff invented for filing the suit. There is no cause of action and the cause of action cited in the plaint is false. The appellant/plaintiff is not entitled to any one of the reliefs sought for and hence the suit should be dismissed with cost. 4.Based on the above said pleadings, the learned trial Judge framed four issues which read as follows; https://hcservices.ecourts.gov.in/hcservices/ 1.Whether the suit agreement dated 07.09.1996 is true and valid? 2.Whether the plaintiff is entitled to the alternative relief of refund of advance amount of Rs.3,00,000/- with interest. 4.Whether the plaintiff is entitled to get an injunction against the defendants not to interfere with his possession and enjoyment of the suit property in his capacity as a lessee and also as a proposed purchaser under the agreement for sale? 6.To what relief the plaintiff is entitled? 5.During the course of the trial three witnesses were examined as Pws 1 to 4 and two documents were marked as Exs. A1 and A2 on the side of the appellant herein/plaintiff. Likewise, three witnesses were examined as Dws 1 to 3 and 11 documents were marked as Exs. B1 to B11 on the side of the defendants. At the conclusion of the trial, the learned trial Judge heard the arguments advanced on either side, considered the pleadings and evidence in the light of the points raised in such argument and upon such consideration, dismissed the suit holding the suit agreement to be a forged one by his judgment and decree dated 12.11.2001. Aggrieved by and questioning the correctness of the decree dismissing the suit, the appellant has brought forth this appeal on various grounds set out in the memorandum of appeal. 6.The points that arises for consideration in this appeal are as follows: (i)Whether the suit agreement is genuine as claimed by the plaintiff or is a forged one as claimed by the respondent/2nd defendant? (ii)Whether the appellant/plaintiff is entitled to the relief of specific performance? (iii)Whether the appellant/plaintiff is entitled to the alternate relief of refund of the advance amount with interest? (iv)Whether the appellant/plaintiff is entitled to the relief of permanent injunction as prayed for? (v)What relief the appellant/plaintiff is entitled? 7.This Court heard the submissions made by Mr.S.V.Jayaraman, learned counsel for the appellant/plaintiff and Mr.V.Bharathidasan, learned counsel for the respondent/2nd defendant. The materials on record were also perused. This Court being the final Court of appeal on facts, also perused the evidence and arrived at the conclusion, which are incorporated in the following paragraphs showing re- appraisal of the entire facts. https://hcservices.ecourts.gov.in/hcservices/ 8.Plaintiff in the Original Suit is the appellant. Originally there were two defendants. 2nd defendant is the respondent herein. The deceased 1st defendant was none other than the father of the respondent herein/2nd defendant in the original suit. It is also not in dispute that the suit property belonged to the respondent and his father while his father was alive and after the death of his father, the respondent alone became the owner of the suit property. Claiming that the respondent and his father agreed to sell the suit property for a sum of Rs.3,60,000/- and received a sum of Rs.3,00,000/- as advance, which is evidenced by the agreement between the parties dated 07.9.1996, the appellant/plaintiff has approached the trial Court by way of the suit for specific performance and in alternative for the refund of the advance amount with interest and for permanent injunction. It is the case of the appellant/plaintiff that possession of the suit property remained with the appellant/plaintiff for over three years prior to the date of agreement as lessee and that after the agreement was entered into, the appellant/plaintiff continued to be in possession of the suit property in his capacity as a lessee as well as proposed purchaser under the agreement for sale. Based on the said contention coupled with a further contention that the defendants who showed reluctance to execute the sale deed in accordance with the sale agreement, wanted the appellant/plaintiff to vacate and hand over possession of suit property to them and on refusal by the appellant/plaintiff, the defendants collected their men and made an attempt to disturb the peaceful possession and enjoyment of the suit property by the appellant/plaintiff, the appellant/plaintiff has prayed for a permanent injunction restraining the defendants from interfering with the appellant's alleged possession and enjoyment of the suit property. Two sets of pleadings have been made regarding the capacity of the appellant to be in possession of the suit property and for seeking injunction against the admitted owners of the suit property. The first one is that the suit property was leased out to the father of the appellant/plaintiff three years prior to the date of suit agreement and the enjoyment as lessee continued till the date of suit agreement. Pleading is lacking as to what transpired at the time of entering into the alleged agreement for sale regarding the nature of future possession of the suit property by the appellant/plaintiff. The appellant/plaintiff in his plaint has also pleaded that from the date of suit agreement viz., 07.9.1996, he continued to be in possession of the suit property as a lessee as well as a purchaser under the suit agreement for sale. In case it was agreed between the parties that the plaintiff should continue to possess the property from the date of agreement as agreement holder in part performance of the contract for sale, then, it must be presumed that his alleged possession as lessee came to an end. On the other hand, if he claims to continue to be in possession as lessee even after the suit agreement for sale, the claim of the plaintiff that he is in possession as the https://hcservices.ecourts.gov.in/hcservices/ agreement holder as well has got to be rejected as untenable. By making such a nebulous pleading regarding possession, the appellant/plaintiff has sought for a permanent injunction against the respondent and his father / defendants. Even in evidence it has not been made clear in which of the two capacities, viz., lessee and agreement holder, the appellant/plaintiff is in possession of the suit property. When that is so, the prayer for injunction is necessarily bound to fail. Point No.1 is answered accordingly. In the above said background, we have to approach the other issues of the case. 9. The contention of the plaintiff that the suit property was agreed to be sold to him by the defendants pursuant to which the suit agreement was entered into has been stoutly denied by the respondent/2nd defendant. The alleged payment of advance has also been denied. The alleged delivery of the suit property in part performance of the contract of agreement has also been denied. In this regard, we have already seen that the plea of the plaintiff is nebulous insofar as he has not stuck on to one or the other stand, namely possession as a tenant or possession in part performance of the agreement for sale. The appellant/plaintiff, as rightly contended by the learned counsel for the respondent seems to have claimed to be a tenant having got the property on lease ten years prior to the date of suit agreement as he was not confident of proving delivery of possession in part performance of the contract for sale. The plaint contains an averment to the effect that possession of the property was delivered to the plaintiff on the date of agreement. If at all the appellant/plaintiff had been in possession ten years prior to the date of agreement upto the agreement, there won't be any necessity to hand over possession on the date of agreement and it would be sufficient to make a recital in the agreement that the proposed purchaser under the agreement shall thereafter cease to be a tenant and continue to possess the property in part performance of the contract for sale. However it is noticed from Ex.A1-suit sale agreement dated 07.9.1996 that the parties agreed for the plaintiff to continue to be in possession from the date of agreement in part performance of the contract for sale. Though there is a recital in the agreement that the property was already in the possession of the appellant/plaintiff for about three years prior to the date of agreement as his father P.K.Kalianna Gounder had got the property on lease ten years prior to the date of agreement, the above said recital is capable of showing that the parties mutually agreed for termination of possession of the appellant as tenant and possession of the appellant from the date of agreement was accepted by the defendants to be in part performance of the contract. Under such circumstances, as pointed out supra, the claim of the appellant/plaintiff that from the date of agreement he continued to be in possession not only in part performance of the contract but https://hcservices.ecourts.gov.in/hcservices/ also as tenant under the earlier tenancy agreement cannot be accepted and such a contention is highly untenable. This Court hasten to add that the above said observation is made without accepting the contention of the plaintiff and assuming, without admission, that the suit agreement is genuine. 10.Even the contention of the appellant/plaintiff that he was in possession of the suit property as a tenant is not substantiated by reliable evidence. From the testimony of PW1, the plaintiff himself, in this regard is to be approached with caution as the same is an interested testimony of a party to the suit. Though PW1 would have asserted in his evidence in chief examination that he is in possession of the suit property for about 14 years and the same was used as a cattle shed and that he and his father were enjoying the suit property as tenants paying a monthly rent of Rs.50/- besides a sum of Rs.500/- paid by the father of the appellant as advance at the time of inception of the tenancy, during cross examination he has admitted that there is no document evidencing either such lease or payment of rent. No rental receipt has been produced. PW2 is an attestor of Ex.A1 agreement. He does not speak about the plaintiff's possession of the property as tenant prior to the date of agreement. PW3 is the scribe of Ex.A1. He also does not speak anything about the alleged tenancy and payment of rent. One Semiliappan has been examined as PW4. He claims to be a neighbour who has got knowledge of the possession of the suit property by the appellant/plaintiff and his enjoyment of the same as cattle shed for about 15 years. Though PW4 has chosen to state that the suit property was in possession of the appellant/plaintiff for about 15 years, he has not stated anything about the alleged tenancy or payment of rent. Even as per the evidence of PW1, plaintiff's father was in possession as a tenant till his death about three years prior to the date of suit agreement and the plaintiff came to possess the property after the death of his father. The suit sale agreement is dated 07.9.1996, three years prior the date of agreement will take us to 1993. PW4 was examined on 22.6.2001. Therefore, the period during which the plaintiff had been in possession, shall be only 8 years. But PW4 in his evidence would state that the plaintiff himself was in possession of the suit property for about 15 years. He does not speak about possession of the suit property as a tenant by the father of the plaintiff upto the date of his death. That itself will show that PW4 has come to the Court in order to oblige the plaintiff and depose falsely to support the plaintiff's case. 11. On the other hand, the respondent/2nd defendant has taken a stand that the property was never leased out to the father of the plaintiff; that no agreement for sale was executed in favour of the plaintiff and that the suit agreement for sale viz., Ex.A1 is nothing but a forgery. Except Ex.A1 - the suit agreement, the https://hcservices.ecourts.gov.in/hcservices/ genuineness of which has been disputed and Ex.A2, no other document has been produced on the side of the appellant/plaintiff. As such the present position is that there is no other evidence excepting ipse dixit of PW1 and the recital found in Ex.A1 to prove the alleged tenancy prior to the date of agreement. In order to show that the signatures of the defendants were available to the plaintiff in another document, xerox copy of the sale deed dated 06.9.1993 has been produced and marked as Ex.B1. The said sale deed relates to another property which was purchased by the plaintiff from the respondent and his father/defendants in 1993. There is clear evidence to the effect that the said property originally belonged to the father of the appellant /plaintiff and he had sold the same to the deceased 1st defendant K.Venkatachala Gounder in 1974 and that the same was reconveyed to the plaintiff by the defendants under the original of Ex.B1. The same has also been admitted by the PW1. The plaintiff as PW1 has admitted the execution of such a sale deed on 06.9.1993. He has also admitted that the original sale deed was available with him and he could produce the same. However, the plaintiff has chosen not to produce the said original sale deed. The respondent/2nd defendant has also produced House Tax Receipts and other documents marked as Exs.B2 to B11 to show that the Door Number of the property in which he is residing had been changed prior to the date of agreement and the plaintiff while creating the suit agreement mentioned the address of the defendants as found in the original of Ex.B1 sale deed. The admission made by PW1 is as follows:- "1974 y; 42 V1 vd;w fjt[ vz; bfhz;l tP;l;il bt';flhryjpf;F vdJ je;ij tpw;W tpl;lhh;/ 6/9/93k; njjpapy; ehd; mnj tPl;il bt';flhry ft[z;lhpkpUe;J tpiyf;F th';fpndd;/ me;j fpiuag; gj;jpuk; vd;dplk; ,Uf;fpwJ/ ePjpkd;wj;jpy; xg;gilf;f Koa[k;/ jw;nghJ mJ t';fpapy; ,Uf;fpwJ/" Ex.B1 is the copy of the sale deed dated 06.9.1993 under which another property which the father of the appellant had sold to the deceased 1st defendant in 1974 itself was reconveyed to the plaintiff. In the said document Ex.B1, the address of the deceased 1st defendant K.Venkatachala Gounder is given as Erode Village, Veerappan Chatram, Asokapuram, 72-B, Bavani Main Road. The very same address is given as the address of the defendants in the suit sale agreement namely Ex.A1. An attempt has been made on the side of the respondent to show that the door number had already been changed and not having any knowledge of change of door number and new number, the plaintiff created the suit agreement in which the address found in the original of Ex.B1 has been copied as the address of the defendants. https://hcservices.ecourts.gov.in/hcservices/ 12.In this regard the evidence of DW2 is relevant. DW2 is a person employed as a Junior Assistant in the concerned Panchayat Office, namely Veerappan Chatram Town Panchyat. According to his evidence, Door No.72B, Bavani Main Road within Veerappan Chatram Town Panchayat was changed into Door Nos.104 and 105 in the year 1991 itself; that the entry in the property tax register for the said property has been made in the name of Venkatachala Gounder (deceased 1st defendant) and after his death, in 1997-98, the same was changed in the name of the respondent/2nd defendant. It is the further evidence of DW2 that the door numbers again have been changed into Door Nos.23 and 25 from Door Nos.104 and 105 respectively. The said change of door number, according to the DW2's evidence, was made in 1999. It is obvious from the consideration of the evidence of DW2 and Ex.B1 that the first defendant K.Venkatachala Gounder's residence was door number 72B, Bavani Main Road which had then been changed into Door Nos.104 and 105. Therefore, it is quite obvious that the changed number was not given effect to by the first defendant while executing a sale deed in 1993, i.e., even after two years subsequent to the change of door number. Therefore, there is no wonder in finding the very same address as the address of the defendants in Ex.A1 dated 07.9.1996. On the mere ground that old door number, as found in Ex.B1, has been cited while noting the address of the defendants in Ex.A1 will not be enough to prove the contention of the respondent/2nd defendant that the suit agreement was forged. But a consideration of the other evidence adduced in this case on both sides, without taking into consideration the above said contention of the respondent, will make it clear that the appellant/plaintiff has not proved the genuineness of the suit agreement for sale marked as Ex.A1 and passing of consideration under the said agreement. 13. Before going into the question of proof of signature found in the disputed document, let us consider the evidence regarding passing of consideration. The passing of consideration under Ex.A1 sale agreement has been totally denied by the respondent /2nd defendant. Admittedly, the plaintiff was doing business and was an Income Tax Assesse during the relevant period. PW1 specifically admitted that he was doing business in Chemicals and that he had an annual income of more than 2 lakhs in 1995-96 and more than 3 lakhs in 1996-97. He has also admitted in his evidence that he could produce copies of his Income Tax returns pertaining to the assessment years 1995-96 and 1996-97. However, after giving such an answer during cross examination, he failed to produce the Income Tax returns pertaining to the above said assessment years to show that the payment of Rs.3,00,000/- as advance was reflected in one of the Income Tax returns. 14.In addition to that, it is an admission made by PW1 that the extent of suit property is 4800 sq.ft. He was not in a https://hcservices.ecourts.gov.in/hcservices/ position to deny the suggestion that the market value of the suit property on the date of agreement was more than Rs.150/- per sq.ft. On the other hand, he simply pleaded innocence as to whether the market value of the suit property as on the date of suit agreement was Rs.150/- per sq.ft. Therefore, we have to take it as an admission regarding the market value. If the market value is calculated on the above said basis, the value of the suit property will come to Rs.7,20,000/-. The appellant/plaintiff claims to have entered into an agreement with the defendants for purchasing the property for a sum of Rs.3,60,000/- which is 50% of the market value. It is highly improbable that the defendants would have agreed to sell the property for 50% of the market value. It is the assertion made by PW1 in his evidence that even on the date of agreement viz., 07.9.1996, he had Rs.4,00,000/- with him. It is the case of neither party that there was any encumbrance in favour of a third party in respect of the suit property so that the defendants would have got time for clearing the encumbrance before executing the sale deed. Though the appellant/plaintiff might have stated that he was in possession of the property as tenant also, it is not his case that 50% of the market value was reduced for his giving up his tenancy rights. In such circumstances, there is no explanation as to what was the impediment for the plaintiff to get a sale deed straight away, when he was having the necessary cash namely Rs.4,00,000/-. 15.Apart from that, there is a contradiction in the evidence of PW1 itself. At one place he said he was having Rs.4,00,000/- on the date of agreement and at another place he admits that he prayed for six months time to pay the balance consideration of Rs.60,000/- as he was not in a position to make payment of the entire sale consideration. It is also his admission that the sum of Rs.3,00,000/- alleged to have been paid as advance under the agreement was neither shown in his account books nor shown in the Income Tax returns. In this regard, though PW2 and PW3 would have chosen to support