Jeyabarathi vs Shanmugam

A. Selvam, J.—The concurrent Judgments and decrees passed in Original Suit No. 29 of 2005 by the District Munsif Court, Mudhukulathur and in Appeal Suit No. 2 of 2011 by the Sub Court, Paramakudi are being challenged in the present second appeal.

The appellant herein as plaintiff has instituted Original Suit No. 29 of 2005 on the file of the trial Court for the relief of specific performance, wherein the present respondents have been shown as defendants.

In the plaint it is averred that the suit property has been purchased by the plaintiff by virtue of sale deed dated 11.11.1996 from one Shanmugavel and since then she has had enjoyed the same as an absolute owner and the plaintiff has voluntarily sold the suit property in favour of the first defendant by virtue of sale deed dated 02.06.1999. On the same day, the first defendant has agreed to sell the suit property in favour of the plaintiff and allowed her to retain possession of the same and to that extent the suit sale agreement has come into existence and despite of repeated demands made by the plaintiff, the first defendant has not come forward to execute a sale deed in favour of the plaintiff. Under the said circumstances, the present suit has been instituted for the relief sought for in the plaint.

In the written statement filed on the side of the defendants, it is averred that the suit property is originally belonged to the plaintiff and she sold the same in favour of the first defendant for valuable consideration by virtue of sale deed dated 02.06.1999 and since then the first defendant has been in possession and enjoyment of the same as rightful owner. It is false to aver in the plaint that on 02.06.1999 itself, the first defendant has agreed to sell the suit property in favour of the plaintiff and to that extent he has executed the suit sale agreement. The suit sale agreement is nothing, but concoction and there is no merit in the suit and the same deserves to be dismissed.

On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No. 2 of 2011 on the file of the first appellate Court.

The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal whereby and whereunder confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the plaintiff as appellant.

As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission.

On the side of the appellant/plaintiff, the following substantial questions of law have been raised for consideration:

a)Whether the Judgment and decree of the Courts below is vitiated for non-consideration of the oral and documentary evidence in proper perspective?

b)Though the possession of the appellant is established beyond reasonable doubt by relevant documents how the non award of injunction against the 1st respondent can be justified?

c)Whether the Courts below had correctly appreciated the facts and law?

The short point that arises for consideration in the present second appeal is as to whether the suit sale agreement dated 02.06.1999 alleged to have been executed by the first defendant in favour of the plaintiff is a genuine document?

The learned counsel appearing for the appellant/plaintiff has strenuously contended that the suit property is originally belonged to the plaintiff and she purchased the same by virtue of sale deed dated 11.11.1996 and since then she has had enjoyed the same as a rightful owner and on 02.06.1999 she sold the suit property in favour of the first defendant and on the same day, the first defendant has agreed to sell the suit property in favour of the plaintiff and under the said circumstances he allowed her to retain possession of the suit property and to that extent the suit sale agreement has come into existence and despite of repeated demands made by the plaintiff, the first defendant has not come forward to execute a sale deed in favour of the plaintiff and under the said circumstances the present suit has been instituted for the relief sought for in the plaint, but the Courts below without considering the voluminous documents filed on the side of the appellant/plaintiff have erroneously non-suited her and therefore the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with.

Per contra, the learned counsel appearing for the respondents/defendants has contended that the suit property has been purchased by the first defendant by virtue of sale deed dated 02.06.1999 and as per recitals mentioned therein, possession of suit property has been given to the first defendant and the first defendant has not executed the suit sale agreement on the same day in favour of the plaintiff and the suit sale agreement is nothing, but a forged document and the Courts below after considering evil design of the plaintiff have rightly non-suited her and therefore the concurrent Judgments and decrees passed by the Courts below are not liable to be interfered with.

It is an admitted fact that the plaintiff has purchased the suit property by virtue of sale deed 11.11.1996 and the same has been marked as Ex.A.2. It is also equally an admitted fact that the plaintiff has sold the suit property in favour of the first defendant by virtue of sale deed dated 02.06.1999 and the same has been marked as Ex.B.1. In Ex.B.1, clear recitals are found place with regard to handing over of possession to the purchaser viz., first defendant herein.

The suit sale agreement dated 02.06.1999 alleged to have been executed by the first defendant in favour of the plaintiff has been marked as Ex.A.6.

The consistent case put forth on the side of the appellant/plaintiff is that on the date of execution of Ex.B.1, Ex.A.6 has come into existence.

The learned counsel appearing for the appellant/plaintiff has contended that even though Ex.B.1 has been executed by the plaintiff in favour of the first defendant, possession of the suit property has not been given to the first defendant and the plaintiff has been allowed to retain possession.

It is a settled principle of law that if a registered document is in existence, any alteration or modification of its recitals can be done only by a registered instrument.

The specific case put forth on the side of the appellant/plaintiff is that on the date of execution of Ex.A.1, Ex.A.6 has come into existence. If really such sale agreement has come into existence, on the date of execution of Ex.A.1, definitely necessary recitals would have been mentioned either in Ex.B.1 or the subsequent document should be in existence between the parties by way of registering the same. In the instant case, Ex.A.6 is nothing, but an unregistered document.

The learned counsel appearing for the respondents/defendants has contended to the effect that even though Ex.B.1 has been registered on 02.06.1999, number has been given only on 04.06.1999, but in Ex.A.6 number has been mentioned and therefore Ex.A.6 is nothing, but a forged document.

As rightly pointed out on the side of the respondents/defendants, this Court has analysed Ex.A.6, wherein registration number has been given, but actually the said number has been given on 04.06.1999 in Ex.B.1. Therefore it is needless to say that Ex.A.6 is nothing, but a forged document and on the basis of Ex.A.6, the Court cannot grant discretionary relief of specific performance in favour of the plaintiff.

The Courts below after considering the nature of evidence available on record, have rightly non-suited the plaintiff and in view of the discussion made earlier, this Court has not found any force in the contention put forth on the side of the appellant/plaintiff and all the substantial questions of law raised on the side of the appellant/plaintiff are not at all relevant for the purpose of deciding the present lis and altogether the present second appeal deserves to be dismissed.

In fine, this second appeal is dismissed without costs and the concurrent Judgments and decrees passed by the Courts below are confirmed. Consequently, connected Miscellaneous Petition is dismissed.