E.M. Nagalingam and Others vs K. Ramachandra Naidu and Others

S. Tamilyvanans, J.—The Second Appeal in S.A. No. 846 of 2009 has been preferred against the judgment and Decree, dated 26.06.2008

made in A.S. No. 61 of 2007 on the file of the Sub-Court Ranipet, allowing the first appeal and confirming the judgment and Decree, dated

21.10.2006 made in O.S. No. 310 of 2004 on the file of the District Munsif Court, Arakonam.

The Appellant herein was the Plaintiff in the suit in O.S. No. 310 of 2004 and Defendant in the suit in O.S. No. 117 of 2004. The suit in O.S.

No. 310 of 2004 was originally numbered as R.O.S. No. 86 of 1998. The suit was filed against the Respondents herein for specific performance,

seeking a decree directing the Defendants to execute the sale deed, as per the alleged agreement for sale, dated 17.01.1983 and if the Defendants

fail to execute the sale deed, to execute the sale deed through an officer of the Court below.

Second Appeal in S.A. No. 859 of 2009 has been preferred by the Appellant, who was the Defendant in the suit in O.S. No. 117 of 2004. The

suit in O.S. No. 117 of 2004 was filed by the second Respondent, K. Ramachandra Naidu against the Appellant herein, seeking declaration of

title, delivery of possession, damages for use and occupation and other consequential relief.

It is seen that the trial court, by a common Judgment, dated 21.10.2006 decreed the suit in O.S. No. 117 of 2004 as prayed for and granted

two months time for the Appellant herein to vacate and hand over the possession of the property to the Respondent / decree-holder. The suit in

O.S. No. 310 of 2004 was dismissed without costs. The suit in O.S. No. 47 of 1998, O.S. No. 195 of 1998 and O.S. No. 43 of 1999 was also

dismissed by the common Judgment. Aggrieved by which, the Appellant herein preferred appeals in A.S. Nos. 61/07,62/07,63/07, 64/07 and

31/07.

The first appellate court by a common Judgment, dated 26.06.2008, confirmed the judgment and Decree passed by the Court below and

dismissed all the appeals preferred by the Appellant herein. Aggrieved by which, the Second Appeals have been preferred.

When the matter was taken up for final hearing, the learned Counsel appearing for the Appellant made an endorsement that the Appellant is not

pressing the appeals in S.A. Nos. 847/09,848/09 and 849/09. In view of the same, the said Second Appeals were dismissed as withdrawn.

The Appellant herein is challenging only the concurrent judgment rendered by the Courts below only in A.S. No. 61/07, relating to S.A. No.

846/09 and A.S. No. 31/07 relating to S.A. No. 850/09.

In the grounds of both the second appeals, the Appellant has raised the following questions as substantial questions of law:

Whether the Appellant has established his right to claim specific relief under the sale agreement, dated 17.01.1983 (Ex.A.1) in terms of the

Specific Relief Act ?

Whether both the courts right in rejecting the claim of the Appellant for possession from 1983, has not the Appellant proved title by adverse

possession ?

Whether or not the purchaser of suit property by the Respondents is hit by the Doctrine of lispendens ?

Whether both the courts right in relying upon the photo copies only to prove the possession of the Respondents in the absence of any

independent evidence to prove the same by the Respondents ?

In the plaint relating to the suit in O.S. No. 310 of 2004, the Appellant herein as Plaintiff has stated that the suit property belonged to the first

Respondent, Krishnalal Jain, who entered into an agreement of a sale with the Appellant / Plaintiff for the sale of the the property for the

consideration of Rs. 38,000/-, as per the agreement of sale, dated 17.01.1983. He has further stated that the first Respondent had executed a

registered power of attorney deed in his favour with regard to the said property, however, on 11.06.1984, the Appellant / Plaintiff entered into an

agreement of sale, by virtue of the power of attorney deed with one Jeyavelu Mudaliar for a sale consideration of Rs. 40,000/- and the Appellant

had also received the entire sale consideration of Rs. 40,000/- and handed over the original of Ex.A.1, sale agreement between himself and the

first Respondent, dated 17.01.1983 and also the original power of attorney deed, executed by the first Respondent in favour of the Appellant

herein. After entering into the agreement of sale with Jeyavelu Mudaliar on 11.06.1984, the Appellant / Plaintiff has no subsisting right in the

property to seek specific relief, pursuant to the agreement, dated 17.01.1983.

Mr. S. Vijayakumar, learned Counsel appearing for the Appellant submitted that the Courts below have held that the agreement of sale, dated

17.01.1983, original of Ex.A.1 entered into between the Appellant and the first Respondent is true and genuine document and therefore, the

Courts below could have granted the relief in favour of the Appellant as prayed for in the grounds of appeal. The Appellant has stated that the trial

court ought to have granted permanent injunction and declaration of title of the suit property under Specific Relief Act. There is no prayer, seeking

declaration of title and permanent injunction, further that cannot be granted under the Specific Relief Act, when the Appellant / Plaintiff himself has

filed the suit only for specific performance of the agreement, dated 17.01.1983. Learned Counsel for the Appellant further contended that the first

Respondent had unilaterally cancelled the agreement, dated 17.01.1983, without intimating the same to the Appellant.

As contended by the learned Counsel appearing for the Appellant, a party to the agreement cannot cancel the agreement unilaterally. Even if

there is any intimation to the other party, that would not be valid. However, in the instant case, the Appellant / Plaintiff himself has stated in the

plaint that he had paid the entire consideration of Rs. 38,000/- to the first Respondent, being the owner of the property on 17.01.1983, the date of

agreement between himself and the first Respondent, but subsequently, on 11.06.1984, as power of attorney, he entered into a sale agreement

with Jeyavelu Mudaliar for a sale consideration of Rs. 40,000/- and received the entire amount from him. He has further contended that he handed

over the original agreement between himself and the first Respondent and also the power of attorney deed, executed by the first Respondent in

favour of the Appellant to the said Jeyavelu Mudaliar. In such circumstances, it is clear that the Appellant / Plaintiff had lost his right in the property

and hence, he had no locus standi or cause of action to maintain the suit for specific performance.

Learned Counsel appearing for the Appellant relied on the following decisions:

1.G.D. Subramaniam v. The Sub-Registrar 2009 (1) CTC 709

2.K. Ramachandra Naidu v. The District Collector, Vellore and Ors. 2009 (3) TLNJ 317 (Civil)

Ranganayakamma and Anr. v. K.S. Prakash (D) by L. Rs and Ors.JT 2008 (8) SC 510

Chokkammal v. K. Balraj 2008 (5) CTC 690

P. Rajagurusamy Vs. The Sub Registrar and Others, . In Ranganayakamma and Anr. v. K.S. Prakash (D) by L. Rs and Ors.reported in JT

2008 (8) SC 510, the Hon''ble Apex Court has held as follows:

When a fraud is alleged, the particulars thereof are required to be pleaded. No particular of the alleged fraud or misrepresentation has been

disclosed.

We have been taken through the averments made in the plaint. The plea of fraud is general in nature. It is vague. It was alleged by the Plaintiffs

that signatures were obtained on several papers on one pretext or the other and they had signed in good faith believing the representations made by

the Respondents, which according to them appeared to be fraudulent representation. When such representations were made, what was the nature

of representation, who made the representations and what type of representations were made, have not been stated...

This Court in Chokkammal v. K. Balraj, reported in 2008 (5) CTC 690 has held that a vendor who had received the entire sale consideration

is obliged to hand over the possession of the property to the purchaser and give warranty for occupation free of disturbances. It is not possible to

attribute any grave misconduct on the part of the Plaintiff, especially in a case where the entire sale consideration has been paid to deny to him the

relief of specific performance. On the other hand, it would be inequitable to deny such a relief in view of Section 10 of Specific Relief Act, which

states that in respect of immovable property, the breach on the part of the vendor cannot be compensated by money and specific performance of

the agreement alone is the adequate remedy.

This Court in P. Rajagurusamy Vs. The Sub Registrar and Others, held that unilateral cancellation of a bilateral agreement at the instance of

one party even without other party being put on notice is not only against principles of natural justice, but also against principles of law.

However, the aforesaid decisions cited by the learned Counsel appearing for the Appellant are not applicable to the facts and circumstances of

this case, since he lost his right by way of executing a sale agreement in favour of another and also received the entire sale consideration, by virtue

of the power of attorney deed.

Learned Counsel appearing for the second Respondent cited the following decisions:

Ram Awadh v. Achhaibar Dubey 2000 (2) MLJ 42 (SC)

Arunachala Mudaliar Vs. Jayalakshmi Ammal and V.R. Rajasekharan,

Nallayya Gounder and Anr. v. P. Ramaswamy Gounder etc. and 3 Ors. 1993 2 LW 86

Lakshmiammal and Anr. v. S. Sengamalai 1996 1 LW 785

A. Ulaganatha Reddy Vs. D. Nandagoppal Chetti and Others,

A. Ganapathy Vs. S. Venkatesan,

Vallithai and Ors. v. Arulraj 2007 (4) TLNJ 1 (Civil)

8.M.K.A.K. Bowsiya Begum v. Mariam Beevi and Anr. 2009 92) TLNJ 226 (Civil)

Govindarajy v. Mohandoss and Ors. 2007 (1) TLNJ 35 (Civil)

Karuppayee Ammal and Ors. v. Pasupathi Ammal and others 2007 (1) TLNJ 46 (Civil)

The Hon''ble Apex Court in Ram Awadh v. Achhaibar Dubey, reported in 2000 (2) MLJ 42 (SC), by its Full Bench decision has held as

follows:

5... A court may not grant to a Plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform

his part of the agreement the specific performance whereof he seeks. There is therefore, no question of the plea being available to one Defendant

and not another. It is open to any Defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with

and it is for the court to determine whether it has or has not been complied with and depending upon its conclusion decree or decline to decree the

suit.

A Division Bench of the High Court in Arunachala Mudaliar Vs. Jayalakshmi Ammal and V.R. Rajasekharan, has held that even subsequent

purchaser of a property can raise defence of lack of readiness and willingness on the part of Plaintiff, in a suit for specific performance, as per

Section 16(c) of Specific Relief Act, 1963.

A Division Bench of this Court in Nallayya Gounder and Anr. v. P. Ramaswamy Gounder etc., and 3 others, reported in 1993 2 LW 86, has

held as follows:

16... In a suit for specific performance it is incumbent on the Plaintiff not only to set out agreement on the basis of which he sues in all its details, he

must go further and plead that he has applied to the Defendant specifically to perform the agreement pleaded by him but the Defendant has not

done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint

nor at any subsequent stage of the suit the Plaintiff has taken those pleas. As observed by this Court in Prem Raj v. D.L.F. Housing and

Construction (Private) Limited (1986 (3) SCR 648) that it is well settled that in a suit for specific performance Plaintiff should allege that he is

ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable.

In A. Ganapathy Vs. S. Venkatesan, , this Court has held that specific performance is an equitable relief, which could not be granted, where

evidence adduced by Plaintiff is wholly unsafe and false.

This Court in Govindarajy v. Mohandoss and others, reported in 2007 (1) TLNJ 35 (Civil), held that there is no need to interfere with the

concurrent findings of the Courts below in the absence of any manifest error or infirmity in the findings, which leads to miscarriage of justice.

In the written statement filed by the first Respondent, in paragraph number 9, the first Respondent, Krishnalal Jain has averred as follows:

This Defendant submits that after exchange of certain notices between the Plaintiff and the Defendant before 17.01.1983 itself, while the

Defendants and his friends Selvakumar had been to Thiruvelangadu for collecting certain amounts and while returning back, the Plaintiff herein and

his henchman came in an Ambassador Car bearing MSL 91 and kidnapped the Defendant and his friend. They have also assaulted this Defendant

and his friend. Later on 17.01.1983 after 5.00 p.m., under threat of life by force and without the free will and consent of this Defendant, a sale

agreement, dated 17.01.1983 and the power of attorney of the even date were obtained from this Defendant. The Plaintiff also has forcibly

removed the sum of Rs. 6,000/- from this Defendant and after coming to his place and he lodged a police complaint to Kanakamma Chatiram

Police Station on 18.01.1983 and on the same day this Defendant cancelled the sale agreement, dated 17.01.1983 and also the power of attorney

in favour of the Plaintiff.

As found by the Courts below, the first Respondent has not established that on 17.01.1983, he was forced to sign the agreement for sale and

the power of attorney under threat and coercion. According to him, on 18.01.1983, he lodged a criminal complaint before Kanakamma Chatiram

Police Station and also cancelled the agreement, dated 17.01.1983 on 18.01.1983 and also the power of attorney deed in favour of the Plaintiff.

In the light of the decision reported in JT 2008 (8) SC 510 (cited supra), first Respondent cannot suo moto cancel the agreement for sale and the

power of attorney deed executed in favour of the Appellant / Plaintiff. After executing an agreement for sale, having received the consideration

thereon, the Appellant has no legal right or grievance and I could find no justification on the part of the Appellant to maintain his suit.

As held by the Courts below, it is clear that the Appellant / Plaintiff has given up the right to purchase the property under the sale agreement,

dated 17.01.1983 from the first Respondent, after executing sale agreement in favour of Jayavel Mudaliar. Having lost his right as agreement

holder, as per his own pleading and the evidence available on record, the Appellant cannot maintain the suit for specific performance against the

first Respondent. According to the Respondent herein, on 17.12.1997 under Ex.B.10, sale deed, the property was purchased by the second

Respondent, Ramachandra Naidu and the sale deed was executed by the first Respondent, Krishnanal Jain and K.M. Jeyavelu Mudaliar, with

whom the Appellant had entered into an agreement of sale on 11.06.1984, and received the entire sale consideration of Rs. 40,000/-.

Though the Appellant / Plaintiff has specifically stated that he had entered into an agreement of sale with Jeyavelu Mudaliar on 11.06.1984, by

virtue of the power of attorney given by the first Respondent, having received the entire sale consideration of Rs. 40,000/- as per the said

agreement of sale. However, for the reasons best known to him, the Appellant has not impleaded the said Jeyavelu Mudaliar as one of the

Defendants in the suit.

As contended by the learned Counsel appearing for the Respondents 2 and 3, after executing the sale agreement in favour of Jeyavelu

Mudaliar, the Appellant / Plaintiff had no subsisting right or locus standi to maintain the suit, by producing a xerox copy of the sale agreement,

dated 17.01.1983 entered into between himself and the first Respondent, after having handed over the original to Jeyavelu Mudaliar in support of

his agreement with him. The Appellant / Plaintiff has specifically stated that he had executed the sale agreement in favour of Jeyavelu Mudaliar,

however, he failed to implead Jeyavelu Mudaliar as one of the Defendants in the suit, hence, the suit is also bad for non-joinder of necessary party.

As per the averments of the Appellant / Plaintiff, on 11.06.1984, he entered into sale agreement with the said Jeyavelu Mudaliar and received the

entire sale consideration of Rs. 40,000/- fro him and also entrusted the original agreement of sale, dated 17.01.1983 between himself and the first

Respondent and also the power of attorney deed executed by the first Respondent to the said Jeyavelu Mudaliar and therefore, he has no

subsisting right to maintain the suit for specific performance, based on the xerox copy of the sale agreement, dated 17.01.1983, the claim of the

Appellant herein has to be construed an attempt of seeking unjust enrichment and as such there is no legal cause of action in favour of the

Appellant / Plaintiff to maintain the suit in O.S. No. 310 of 2004, therefore, the first substantial question raised by the Appellant / Plaintiff is

answered against him.

The second question raised by the Appellant / Plaintiff is claiming title by way of adverse possession. Without any pleading and adducing

evidence, the Appellant / Plaintiff cannot raise a plea of adverse possession in the second appeal, stating that he is in possession and enjoyment of

the property for a statutory period, since 1983. On 17.01.1983, only by virtue of the sale agreement between himself and the first Respondent, the

Appellant / Plaintiff got the possession of the property and the relief sought for in the suit is only specific performance of the agreement, dated

17.01.1983, therefore, the Appellant / Plaintiff is not entitled to claim title by way of adverse possession. Hence, the second question of law,

seeking title by way of adverse possession, based on the possession from the year 1983 is not legally sustainable. Without specific pleading and

adducing evidence, no one can claim title by way of adverse possession and further, while seeking relief of specific performance, based on the

agreement, the Appellant / Plaintiff cannot claim title by way of adverse possession, as the plea is self contradictory to the main relief sought for in

the plaint by him.

It is a settled proposition of law that a substantial question of law cannot be framed without pleadings and supporting evidence. In the instant

case, there is no pleadings for claiming adverse possession and there is no supporting evidence and therefore, the second question of law framed

cannot be construed as substantial question of law to decide the second appeal.

As per Ex.B.10, sale deed, dated 17.12.1997 was executed by the first Respondent, Krishnalal and K.M. Jeyavalu Mudaliar in favour of the

second Respondent. It is seen that the suit was filed on 19.06.1998, subsequent to the sale deed executed by the first Respondent and Jeyavelu

Mudaliar in favour of the second Respondent, Ramachandra Naidu, therefore, the doctrine of lis pendense is not applicable to the sale. Ex.B.11,

sale deed was executed on 02.07.1999 in favour of the state on account of widening the road, which cannot be disputed by the Appellant /

Plaintiff, who has no subsisting right in the property, to seek the relief.

As per P. Ramanatha Aiyar''s, The Law Lexicon, Lis pendens is a constructive notice to the purchaser that he will be bound by a decree to be

entered in a pending suit. In other words, as per the Doctrine of Lis pendens, the purchaser is aware that his right is subject to the result of the

litigation pending before the Court.

In the instant case, pursuant to the widening of the road, a portion of the land was required for extension and that was sold by way of executing

the sale deed, dated 02.07.1999 by the first Respondent, which is not objected to by the other Respondent, who purchased the property under

Ex.B.10. Hence, the Appellant cannot claim any right, based on Ex.B.11, sale deed.

The suit in O.S. No. 117 of 2004 was filed by the second Respondent herein against the Appellant herein, seeking declaration of title to the

suit property, recovery of possession and damages for use and occupation.

It is an admitted fact that Krishnalal, the first Respondent in S.A. No. 846 of 2009 having purchased the suit property under the sale deed,

dated 24.05.1978 from one Ethirajammal become the absolute owner of the property. Accepting his title to the property, the Appellant herein had

entered into the agreement of sale, dated 17.01.1983 with him. Even according to the Appellant / Defendant, after the agreement of sale between

himself and Krishnalal Jain, the first Respondent entered into an agreement of sale with Jeyavelu Mudaliar on 11.06.1984 and received the entire

sale consideration from him, hence, the Appellant herein has no subsisting right. In order to maintain a suit, the Appellant who filed the suit must

have subsisting right to raise a cause of action against the Respondents herein. In the instant case, even as per the pleadings of the Appellant, after

entering into an agreement with Jeyavelu Mudaliar and having receiving the entire consideration, he has no subsisting right in the property. The case

of the Respondents herein is that as per the sale deed, dated 17.12.1997 marked as Ex.B.10, the property was sold to Ramachandra Naidu, the

second Respondent in S.A. No. 846 of 2009, who is the sole Respondent in S.A. No. 850 of 2009. The sale deed was executed by both

Krishnalal, who entered into an agreement of sale with the Appellant on 17.01.1983 and also Jeyavelu Mudaliar, with whom the Appellant

subsequently entered into the sale agreement, dated 11.06.1984 and received consideration.

As per Section 16(c) of the Specific Relief Act, 1963, even subsequent purchaser of the property can raise defence on the ground of lack of

readiness and willingness on the part of the Plaintiff in a suit for specific performance. As the Appellant was not ready and willing to perform his

part of the contract, while getting the sale deed executed, as per agreement, dated 17.01.1983, he entered into an agreement of sale with Jeyavelu

Mudaliar on 11.06.1983 and received the entire sale consideration from him. After entering into the subsequent sale agreement with Jeyavelu

Mudaliar, pursuant to the power of attorney deed, executed by the first Respondent, Krishnalal Jain, it is not open to the Appellant to say that he

had been ready and willing to perform his part of the contract.

Had the Appellant been ready and willing to purchase the property and perform his part of the contract, he could not have entered into the sale

agreement subsequently with Jeyavelu Mudaliar and received the entire sale consideration. On the aforesaid circumstances, there is no error on the

part of the concurrent findings of the courts below that the Appellant was not ready and willing to perform his part of the contract, as per Section

16(c) of Specific Relief Act, 1963.

It is a settled proposition of law that the relief sought for u/s 16(c) and 20 of Specific Relief Act, 1963 is a discretionary relief, for which the

Plaintiff must satisfy before the Court that he has made out a case, which is legally sustainable and must come to court with clean hands. The

equitable and discretionary relief of specific performance could not be granted where the evidence adduced by the Plaintiff is wholly unsafe and

false.

As concurrently held by the Courts below, K. Ramachandra Naidu, one of the Respondent herein has established his right by examining

witnesses and producing supporting document Ex.B.10, sale deed, which was executed by both Krishnalal Jain, who owned the property and

Jeyavelu Mudaliar with whom the Appellant entered into an agreement of sale and received the entire sale consideration.

It is well settled proposition of law that in a second appeal, this Court cannot interfere with the concurrent findings of the Court below, unless

the findings is perverse. The Findings could be construed as perverse, if the same is against evidence or without evidence. In the instant case, the

concurrent findings are supported by evidence.

As contemplated u/s 100 of the Code of Civil Procedure, if there is no substantial question of law involved, the second appeal would not be

maintainable. The Appellant has not raised any substantial question of law to be decided to maintain the second appeal. Based on the xerox copy

of the agreement, dated 17.01.1983, after receiving the entire consideration and executing the another sale agreement in favour of Jeyavelu

Mudaliar, without any subsisting right, the Appellant had filed the suit for specific performance. Therefore, even the substantial question of law ( a)

raised in the grounds of appeal cannot be construed as substantial question of law. The questions (b) (c) and (d) are also not relevant on the facts

and circumstances of the case, which cannot be construed as substantial questions of law on the findings and the evidence available on record.

Therefore, I am of the considered view that there is no substantial question of law to be decided in these Second Appeals and accordingly, both

the second appeals are liable to be dismissed.

In the result, both the second appeals are dismissed. However, no order as to costs. Considering the facts and circumstances of the second

appeals, to vacate and hand over the possession, three months time is granted for the Appellant herein from the date of this Judgment.