Karvannan vs Gopal Padayaschi

This second appeal has been filed against the judgment and decree made in A.S.No.113 of 1986 on the file of the Subordinate Judge,

Vridhachalam dated 23.12.1988 confirming the decree granted in O.S.No.46 of 1982 on the file of the District Munsif, Vridhachalam dated

22.7.1986.

Twice defeated defendant is the appellant in this second appeal.

The plaintiff filed the suit praying for a decree for specific performance alleging that suit schedule properties belonged to the defendant, that

surrounding that suit properties on three sides there are properties belonging to this plaintiff that on one side there is a channel that the suit property

is lying as a distinct small plot in the midst of the lands belonging to the defendant, therefore, the defendant wanted to sell the same, that coming to

know of this fact, the plaintiff approached the defendant and negotiated for the purchase of the land, that on 15.6.1979, the defendant agreed to

sell the suit property in favour of the plaintiff for a sum of Rs.5,250 that on 28.6.1979, the plaintiff went to the defendant and gave the entire sale

consideration of Rs.5,250 and wanted the defendant to execute a registered sate deed, that the defendant who accepted the payment, undertook

to have the sale registered within a week and that on 28.6.79, the defendant gave a receipt for having received a sum of Rs.5,250 writing it out in

his own hand that the plaintiff was also put in possession of the suit property, that the plaintiff has been in possession and enjoyment of the property

ever since, that the plaintiff demanded the defendant to execute the sale deed and complete the transactions on several occasions, that the

defendant was giving some excuse or other and was postponing the execution of the sale, that of late, the plaintiff came to know that the defendant

is trying to sell the property to some third parties and that therefore, issued a notice dated 26.11.1981 calling upon the defendant to come and

execute the sale deed that the defendant sent a reply raising false contentions and denying the oral agreement and receipt of money and that

therefore, the plaintiff is constrained to file this suit for specific performance against the defendant to execute the sale deed in his favour. The

plaintiff has also stated that in case, the Court comes to the conclusion that there was no valid agreement as an alternative the refunds amount paid

may be passed for Rs.5,250 with interest.

The defendant filed a written statement contesting the claim of the plaintiff by contending that the suit is liable to be rejected with compensatory

cost, that the suit property belongs to the defendant, that the suit property is not properly described in the plaint schedule, that it is not true that the

defendant wanted to sell the suit property, that there was no negotigations with regard to the sale of the suit property that it is equally false to state

that this defendant agreed to sell the suit property for a sum of Rs.5,250 that this defendant did not receive any amount, much less a sum of

Rs.5,250 on 28.6.1979, that this defendant has not issued any receipt for having received the said amount that this defendant never told the plaintiff

that we would execute the sale deed and have it registered in a week that the possession was not handed over to the plaintiff as contended by him,

that this defendant is in possession of the suit property that the claim of the plaintiff is false and this can be seen from the fact that even in 1979, the

lands in the locality would fetch high price, that the market value of the land was Rs.15,000 per acre, that this defendant could not have agreed to

sell the suit property for such a small amount of Rs.5,250 that the agreement set up by the plaintiff is not true, that the plaintiff requested this

defendant to sell the suit property to him because he has properties on all three sides but this defendant did not agree and that therefore the plaintiff

has come forward with a false case and the suit is, therefore, liable to be dismissed.

On the above pleadings, the trial Court framed the issues as to: (1) whether the oral agreement dated 28.6.1979 is true? (2) whether the plaintiff

is entitled for specific performance? and (3) whether the plaintiff is entitled to any other relief?

The plaintiff examined himself as P.W.1 besides P.Ws. 2 and 3 and plaintiff has filed Exs.A.1 to A.4 documents. The defendant examined

himself as D.W.1 and has filed Exs.D1 to D5 documents Exs.C.1 to C.5 were marked by the Court suo moto which are certain signatures of the

defendant found in certain documents filed along with the records.

On consideration of evidence both oral and documentary, learned District Munsif gave finding to the effect that there has been an oral agreement

between the plaintiff and the defendant to sell the property for a sum of Rs.5,250 on 15.6.1979, that accepting the evidence of P.Ws.l to 3 the

court also held that on 28.6.1979 the entire sale consideration was received by the defendant and in acknowledgment of the same, Ex.A1 receipt

was issued by the defendant to the plaintiff, that thereafter, the defendant has not executed the sale deed and therefore, decreed the suit directing

the defendant to execute the sale deed. Aggrieved at the said decree and findings the defendant preferred an appeal in A.S.No.113 of 1986 and

the learned Subordinate Judge, by impugned judgment, dismissed the appeal confirming the decree granted by the trial court. Aggrieved by the

said decisions, the defendant has come forward with the above second appeal.

At the time of admission of the second appeal, the following substantial question of law has been formulated for consideration: Whether the

decree for specific performance can be granted when the agreement does not contain any specification regarding the properties to be sold?

The plaintiff has filed the suit on the footing of an oral agreement of sale said to have been entered into between the plaintiff and the defendant on

15.6.1979. The agreement is said to have taken place in respect of the suit property having an extent of 1.19 acres comprised in Survey

Nos.145/2 and 145/5 of Poovanur Village, Pennadam Taluk, South Arcot District. The suit property, admittedly, belongs to the defendant and is

irrigated with the water taken from the irrigation channel as seen from the Adanga! produced by the defendant. The parties used to raise paddy

and other nanja crops eventhough the classification of the lands, as per the revenue records, is punja. Anyhow, the extent of the land in dispute is

admittedly 1.19 acres.

The negotiation for the purchase and sale seem to have arisen under these circumstances. The land belonging to the defendant is lying as a

distinct plot in the midst of a surrounding properties, which belong to the plaintiff and it is also specifically stated by the plaintiff that it was the

defendant who wanted to dispose of the properties and when this came to be known to him he went and approached the defendant as a result of

which the agreement is said to have been arrived at on 15.6.1979.

The agreement is said to be oral only. There is absolutely no explanation as to why the agreement was not reduced to writing after the

completion of negotiation in the presence of witnesses. The sale consideration was fixed and arrived at Rs.5.250 on 15.6.1979 itself. One

explanation is that the defendant wanted the entire transaction to be completed within a week and therefore, wanted the plaintiff to come forward

with money, so that the sale could be completed and document could be registered. Moreover, the plaintiff is said to have approached the

defendant by offering the entire sale consideration on 28.6.1979 and wanted him to execute the sale deed and have it registered. The defendant

accepted the money from the plaintiff but did not execute the sale deed and persuaded the plaintiff to come after a week and also undertook to

execute the sale deed and have it registered in the Registrar Officer. While on 28.6.1979 after paying the money to the defendant at the insistence

of the plaintiff, Ex.A.1 receipt is said to have been obtained from the defendant Ex.A.l is said to be the receipt given by the defendant on

28.7.1979. This was also given only after the plaintiff demanded some acknowledgment for having received the entire sale consideration Ex.A.l

reads as follows:-

If the sale consideration was arrived at after negotiation in the presence of witnesses and if the entire consideration also has been paid to the

defendant who wanted the plaintiff to come after a weeks time for registration of the sale deed, in respect of which the plaintiff wanted a receipt for

payment of money, definitely, there could have been mention about the agreement between the parties, the Survey number and extent of the

properties alleged to have been agreed to be sold and also with regard to the oral agreement but, strangely, Ex.A.l receipt does not refer to any

agreement with regard the sale and the amount being received towards sale consideration. Therefore, recitals found in Ex.A.1 would show that the

document could not have been obtained as alleged by the plaintiff in token or acknowledgment of payment of entire consideration. This document

could not have been obtained by the plaintiff especially, after paying full consideration and after the defendant has declined either to execute an

agreement of sale or execute the sale deed.

It is only on the basis of the receipt, the plaintiff, claims to have proved the earlier sale agreement alleged to have taken place on 15.6.1979.

No doubt, the plaintiff has examined himself as P.W.1 besides P.Ws.2 and 3. The case of the plaintiff is sought to be corroborated by the evidence

of P.Ws.2 and 3, but P.W.2 and 3 are close relatives of the plaintiff and therefore, they are interested witnesses P.W.1 in his evidence denied the

relationship. But it has been elicited from P.W.2 that himself and the plaintiffs brother have married sisters. It is also elicited that P.W.2 is a cousin

or nephew of P.W.1. Moreover, the presence of P.W.2 and P.W.3 appears to be artificial and improbable.

P.Ws.2 and 3 claim to have been present when negotiations for the sale took place on 15.6.1979, again on 28.6.1979 when the defendant

came to the house of the plaintiff and received the entire sale consideration. It is also stated that these two witnesses also accompanied the plaintiff

and the defendant actually, to the suit property when possession was handed over to the plaintiff. There is absolutely no reasons for these two

persons being present on all these occasions. Moreover, if they have been present and if the agreement has been reached after negotiations

between the parties concerned in the presence of P.W.2 and 3, definitely, the agreement would have been reduced to writing and signed and

attested by these witnesses. These witnesses do not offer any reasonable explanation as to why they have been present on all these occasions and

why in respect of the transaction no document was obtained. The plaintiff sought to explain it away by stating that the defendant said that the

transaction itself could be completed within a week or ten days and therefore, there was no necessity for putting it in white and black. Accordingly,

the defendant has mobised the necessary finds and it was the defendant who is sought to have gone to the house of the plaintiff and received the

money. If the defendant has gone to the house of the plaintiff and received the money and that too, in the presence of P.Ws.2 and P.3, naturally,

agreement could have been reduced to writing but there was no agreement of sale. In fact, the plaintiff is said to have demanded some evidence by

way of agreement of sale when the entire money was paid. If such demand has been made and if the money has been paid under such

circumstances, the defendant could not have reduced the request of the plaintiff. Moreover, if under such circumstances money has been paid and

the plaintiff insisted upon the document, Ex-A will be the last document which could have satisfied the demand of the plaintiff. In fact, Ex.A.1 does

not even appear to be a normal receipt. If Ex.A.1 is obtained as receipt for payment of entire sale consideration of Rs.5,250 definitely, mention

would have been made about the earlier agreement of sale the particulars with regard to the land or field for which the sale consideration has been

paid and also for entire consideration. But none of these things found place in Ex.A.l and Ex.A.1 by itself appears to have come into existence

under suspicious circumstances because the words are ambiguous and it has not spelt out as to what purpose the money was paid or the receipt

was given. The defendant has stoutly denied having issued this receipt. The defendant has also denied having entered into any oral agreement for

the sale of the suit property in favour of the plaintiff.

The plaintiff would further claim that the entire money was paid on 28.6.1979 and possession was also given to him. In fact, P.W.2 and 3

would claim that they also accompanied D.W.1 the defendant and others to the suit land when possession was handed over by the defendant to

the plaintiff. So, on 28.6.1979, the plaintiff is said to have obtained possession of the suit property in pursuance of agreement of sale. In fact, the

plaintiff and other witnesses would claim that in their presence the separating ridges were removed. Both of these witnesses wanted the cause to

infer that since suit property is a small plot and lying surrounded by the lands of the plaintiff, they were all subsequently being enjoyed by the

plaintiff as a single unit or plot. If this is really so, the plaintiff must have taken out a commission either initially at the time of filing of the suit or

atleast prior to the recording of the evidence. The Commission could have been taken out and could have pointed out to the commissioner the fact

about entire property including the suit property lying as a single plot in the midst of lands of the plaintiff. Strangely, the plaintiff has not chosen to

do any of these things. In fact, the plaintiff in his evidence refers to the fact that the surrounding lands were being irrigated by above-well situated in

the plaintiffs land wherein a motor pump set had been installed. If really possession has been handed over to the plaintiff on 26.8.1979, and if

thereafter till filing of the suit, he was in possession and enjoyment of the suit property, this could have been very well proved by taking out a

commission and pointing out to the commissioner that the suit lands are being irrigated by the water taken out from the bore- well situated inside

the lands belonging to the plaintiff. But no such attempt was made. On the other hand, the plaintiff has relied upon their own evidence of himself

and his own relations.

The plaintiff also has failed to produce any documents, which subsequently came into existence after the alleged agreement. First of all, the

agreement is said to have been concluded on 15.6.1979 and the entire amount was is to have been paid on 28.6.1979 and possession also said to

have given to the plaintiff. According to the plaintiff, the defendant at the time promised to come and execute the sale deed within a weeks time.

The plaintiff must be aware of the fact that neither for the agreement nor for payment of entire consideration there is any documentary evidence

apart from Ex.A.l receipt, which also does not, on the face of it show or reflect any agreement of sale or payment of consideration therefore, he

would have immediately called upon the defendant by issuing a notice to come and execute the sale deed. P.Ws.2 and 3 who claim to have been

present on the first day when negotiation took place and on the second day when the entire sale consideration was paid and also on the same day

when the possession is said to have been handed over to the plaintiff, but strangely, neither P.W.2 nor P.W.3 claim to have gone and asked the

defendant to come and execute the sale deed in favour of the plaintiff. The payment of consideration said to have been made by the plaintiff on

28.6.1979. Thereafter, there is absolutely nothing to show that the plaintiff ever demanded the defendant to execute, the sale deed and to complete

the transaction. Ex.A.2 notice has been sent by the plaintiff admittedly, only on 25.11.1981. The entire sale consideration also, as pointed out, is

said to have been paid by the plaintiff to the defendant on 28.6.1979 and for about 2 i/2 years, the plaintiff has not moved his little finger. There is

absolutely no evidence to show that he ever demanded the defendant to execute the sale deed. The long interval and silence of the plaintiff during

this period must necessarily prove fatal to the case of the plaintiff.

The plaintiff claims to have been put in possession of lands. The plaintiff claims that the suit lands were annexed to his own lands and enjoyed

as a single plot. Naturally after the entire sale consideration is paid by the plaintiff, the defendant cannot be expected to pay the kist. The plaintiff

claims to have been paying the kist but he has not produced any kist receipt. Some questions have been put to P.W.1 in re-examination and he has

stated that he went to V.M. Office and tendered the kist. Apart from that he does not claim to have done anythings further. Anyhow, during his

examination in chief, he never claimed that he made any payment towards kist and this is also highly improable if the plaintiff is in possession and if

the defendant has received the entire consideration. According to the plaintiff the defendant has been postponing the execution of the sale deed. If

so the plaintiff would not have been quiet for 2 1/2 years without the kist to the lands. If really, the defendant has received the entire amount and

the defendant has agreed to execute the sale deed, one cannot expect the defendant to pay the kist. Naturally, if the plaintiff offered to pay kist, the

V.A.O. could not have refused. Anyhow, there is no evidence that the plaintiff offered to pay kist, eventhough he claims to have been in

possession. Learned District Munsif and the Subordinate Judge has failed to consider this aspect. The burden is cast on the plaintiff to prove the

oral agreement and the possession claimed by him and also to prove the payment of entire sale consideration. The plaintiff has miserably failed to

prove all these things and the evidence of P.Ws.2 and 3 cannot be relied upon because their evidence is highly artificial and they also happen to be

close relatives of P.W.1.

On the other hands, the defendant has produced documentary evidence to show that it is during the crucial period 1979-1981, he has been in

possession and enjoyment of the property and this must have been sufficient to reject the case of the plaintiff. Exs.D.2 to D.5 are the Adangal

extracts for fasli year 1388 to 1391 corresponding to 1978 to 1981. There are entries in the above said Adangal extracts to show that during this

period he has paid kist and raised crops and it is stated that the crops have been raised only by the defendant. Learned counsel for the plaintiff

explained this by stating that when patta has not been changed, usually, the name of the pattadar would find place in the Adangal records and only

under such circumstances the name of the defendant is found. These documents are produced on the said of the defendant to show that contrary to

the pleadings of the plaintiff he has been in possession and enjoyment. The plaintiff has failed to produce documentary evidence which he could

have done in respect of the oral agreement. But he has failed to do so. Both the Courts below have not properly appreciated the evidence

available in this case both oral and documentary and that too. produced by the defendant. The plaintiff has failed to prove his case. The plaintiff has

not adduced proper evidence. The evidence adduced on the side of the plaintiff cannot be called reliable or credible. There is total lack of

documentary evidence to corroborate the oral agreement and payment of entire sale consideration. While so, both the courts below have miserably

failed to appreciate these documents filed on behalf of the defendant but have strangely accepted the explanation offered by the plaintiff. There is

total failure on the part of both the courts below to consider the material evidence available and while the evidence adduced on the side of the

defendant was not considered. In fact, both the trial court and the appellate court also, seem to have come to a conclusion based on is own

observation. When the plaintiff himself has not asked the court to take specimen signature of the defendant, for getting them compared by the

expert, learned munsif seems to have directed the defendant to affix his signature in a document and he has also marked certain admitted records

connected with the case wherein the signatures of the defendant were also found. He has proceeded to compare the specimen signature obtained

by him and has commented upon it. The plaintiff has not explained as to why he has not sought for the opinion of the expert in respect of the

alleged signature obtained in Ex.A.l. Therefore the court need not have taken the trouble of comparing the signature. No doubt, it is open to the

court to compare and come to a conclusion. But even such conclusion has to be based on reasonings and must be the comparison on the disputed

signature with the admitted signature. So, there has been total misreading of evidence and material records have not been given due consideration,

whereas the oral evidence adduced on the side of the plaintiff has been accepted without giving sufficient reasons. The conclusion and reasoning of

the courts below appear to be perverse and anyhow not supported by material evidence. Therefore, I am of the opinion that this court is very well

justified in interfering with the finding and conclusions of the courts below by allowing the second appeal. On the other hand, there are

documentary evidence in respect of the case of the defendant, which has not been properly considered by the courts below. Therefore, I have no

hesitation in reversing the judgment and decree of the courts below.

In the result, the appeal is allowed and the plaintiff''s suit for specific performance is dismissed however, without costs.