Kandhasamy vs Ganapathy Gounder

B. Rajendran, J.—The defendants are the appellants. This second appeal is filed challenging the judgment and decree dated 12.12.2011 passed by the learned Additional Subordinate Judge, Vellore in A.S. No. 18 of 2011 in confirming the judgment and decree dated 26.04.2010 passed by the learned District Munsif, Katpadi in O.S. No. 1030 of 2009.

The parties are referred to here under according to their litigative status and ranking before the trial Court.

The short facts that are necessary for the disposal of this Second Appeal would run thus:

(a) The respondents/plaintiffs filed the suit seeking specific performance of an agreement to sell dated 26.02.1986. According to the plaintiffs , the defendants agreed to sell the suit property to the plaintiff for a consideration of Rs. 34,400/- and also by receiving an advance amount of Rs. 5,000/-. Subsequently, the plaintiffs also paid a sum of Rs. 10,000/- on 06.06.1986, Rs. 18,300/- on 26.08.1986 and made an endorsement in the sale agreement. It is the further contention of the plaintiff that the plaintiffs son-in-law also paid a sum of Rs. 2,000/- in respect of the dues of the first defendant to the Co-operative Land Development Bank, K.V. Kuppam and only a sum of Rs. 1,100/- was due by the plaintiff. According to the plaintiffs , originally, the first defendant delivered possession of the property to the plaintiff during June 1986. It is the further contention of the plaintiffs that if the defendants have changed their mind not to execute the sale deed, they should have issued a notice cancelling the original sale agreement. However, without doing so, they sent a notice stating that they have re-entered into the possession of the suit property and also stating that the third defendant is occupying the said land as a tenant under defendants 1 and 2. Hence the suit.

(b) The defendants 1 and 2 by filing the written statement resisted the suit by mainly contending that the agreement to sell was not executed by them as claimed by the plaintiffs on 26.02.1986 was a forged one and the same was executed only on 14.03.1986. They revoked the said sale agreement by issuance of legal notice dated 08.07.1987. Hence, the present suit is not maintainable. They would further contend that they have not received a sum of Rs. 33,300/- as alleged by the plaintiff and they received only a sum of Rs. 15,000/- out of the total sale consideration. Accordingly, the defendants prayed for the dismissal of the suit.

(c) The third defendant has filed a separate written statement contending that he is a cultivating tenant under D1 on the basis of the lease deed dated 17.10.1985 executed by D1 and D2 and the plaintiff has no cause of action to file the present suit.

(c) The trial Court framed the relevant issues. During trial, on the plaintiffs side, P.Ws. 1 to 4 were examined and Exs. A1 to A7 were marked. The defendants 1 and 2 examined themselves as D.Ws. 1 and 2 and marked Exs. B1 to B6.

(d) Ultimately, the trial court after analysing the oral and documentary evidence adduced on both sides, decreed the suit directing the defendants 1 and 2 to execute the sale deed in favour of the plaintiff within two months and also directed the plaintiffs to deposit the balance sale consideration of Rs. 1,100/-[Rupees one thousand and one hundred only] into court within a period of thirty days. As against the same, the defendants preferred appeal for nothing but to be dismissed by the first appellate court confirming the judgment and decree of the trial court. Aggrieved against the same, the present second appeal has been filed by the defendants, raising the only substantial question of law,

"Whether the courts below are correct that the respondent/plaintiff is entitled to the discretionary remedy of specific performance in the facts and circumstances of this case?"

Heard the learned counsel for the appellants/defendants.

The main argument advanced by the learned counsel for the appellants/defendants is that, the agreement to sell dated 26.02.1986 under which the suit was filed itself is a forged and fabricated one. According to the appellants/defendants, they executed a sale deed in favour of the respondents/plaintiffs only on 14.03.1986. Subsequently, the said agreement was also cancelled by issuing a lawyer''s notice dated 06.07.1987 for which a reply notice was also given by the plaintiffs on 11.07.1987. The learned counsel would further submit that the defendants admits the execution of the sale agreement between them and the plaintiffs and the receipt of advance amount of Rs. 15,000/-. However, the date alone differs. He would also submit that there is no contract between the respondent/plaintiff and the appellants/defendants. Accordingly, he would pray for setting aside the judgments and decrees of both the courts below.

On a perusal of the records, it is seen that the parties admit the execution of the sale agreement and also receipt of an advance amount of Rs. 15,000/-. Though the appellants/defendants contended that the agreement to sell dated 26.02.1986 produced by the respondent/plaintiff is a fabricated and forged one, they are unable to produce the sale agreement dated 14.03.1986 said to have been executed by them in favour of the respondent/plaintiff and also to prove the forgery. It is also seen that the respondent/plaintiff out of the total sale consideration of Rs. 34,400/- has already paid a sum of Rs. 33,300/- and only a sum of Rs. 1,100/- is due to be paid by the respondent/plaintiff. The appellants/defendants have also denied the receipt of advance amount paid by the respondent/plaintiff, which has been endorsed at the back of the sale agreement dated 26.02.1986; however, to disprove the same the appellants/defendants have not sent the signature either for getting expert opinion or produced any other independent witness. Hence, the burden is on the appellants/defendants to prove the same. When no steps have been taken by the appellants/defendants, the conclusion arrived at by the courts below for decreeing the suit in favour of the respondent/plaintiff cannot be faulted with. It is also seen that there is no contract for the revocation of the sale agreement executed by the appellants/defendants in favour of the respondent/plaintiff.

Considering the above said facts and circumstances of the case, I do not find any reasonable ground to interfere with the reasoned order passed by both the courts below. In the result, there is no question of law much less substantial question of law involved in this matter for consideration. Accordingly, the second appeal fails and the same is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.