K.Paramasivam v. Chandra

JUDGMENT The plaintiff who is unsuccessful in challenging the judgment and decree in O.S.No.225 of 2015 of the Principal District Munsif Court, Salem before the Principal Subordinate Court, Salem in A.S.No.65 of 2017, is the appellant before this Court.

¶2For the ease of understanding, the parties are referred to in the same array as before the Trial Court. FACTS OF THE CASE:

¶3The plaintiff has filed the above suit for specific performance of sale agreement dated 14.12.2005. It is the case of the plaintiff that on

14.12.2005, he had entered into an agreement of sale with one Muthusamy to purchase the suit schedule property for a total sale consideration of Rs.70,000/-. It is his further case that on the said date, a sum of Rs.40,000/- was paid as advance and the balance of Rs.30,000/- was to be paid within a period of six months. The sale agreement was executed on the same day in the presence of the witnesses. It is the further case of the plaintiff that since Muthusamy had fallen ill, on 05.06.2006 he had requested the plaintiff to pay the balance sale consideration in order to meet his medical expenses. On the same day, the plaintiff had paid the balance sale consideration and Muthusamy had also handed over the possession of the property to the plaintiff and agreed to execute the sale deed after his recovery from illness. An endorsement was made on the reverse of the promissory note on 05.06.2006.

¶4Unfortunately, Muthusamy passed away on 06.10.2006 and the plaintiff requested the defendants to execute the sale deed in respect of the suit property. On 12.03.2015, the plaintiff had contacted the defendants. However, they refused to execute the sale deed. The plaintiff therefore, has come forward with the suit in question.

¶5The plaintiff has filed the suit in respect of an extent of 0.14 cent (i.e) 0.05 ½ ares in Kothanoor Village, Salem District which as per the suit schedule was bounded on the east by Nallakannu's lands, north and west by Paramasivam's lands and south by Ammasi Gounder's land.

¶6The defendants, on entering appearance, had filed a written statement inter alia contending that the defendants are not residing at Kothanoor village and they were forcefully driven out from the village by one Arayee, W/o Ammasi, Planisamy, S/o.Kanda Gounder and Thailan S/o.Ramasamy as early as in 1993 itself. The defendants who originally shifted to Arapakkam in Kancheepuram, have returned for eking out their livelihood to Seergapadi Village at Salem. The written statement filed by the first defendant was adopted by the defendants 2 to 4.

¶7The defendants would submit that Muthusamy was an alcoholic and taking advantage of his intoxicated stage, the plaintiff and others obtained his signatures in several blank papers and have instituted several suits. It would further submit that the signature in the sale agreement dated

14.12.2005 and the endorsement dated 05.06.2006 are forged and fabricated documents. With these forged documents, the plaintiff has instituted several suits for specific performance. It is the case of the defendants that no consideration has been paid under these agreements and all of them were obtained by force and undue influence by taking advantage of the said Muthusamy's alcoholic condition.

¶8It is further contended that Muthusamy had registered a Will as early as on 02.05.1988, in favour of his minor son/second defendant in respect of 2.01 acres of land, comprised in Survey Nos.69/4, 69/10, 70/3 and 70/13 at Kothanoor village. The specific case of the defendants is that the said plaintiff and others are in unauthorised occupation of the properties of the defendants. The defendants would further submit that the signatures in the endorsements in the sale agreement dated 14.12.2005 and

05.06.2006 had not been executed by Muthusamy and they were forged and fabricated documents. That apart, the plaintiff had never approached the defendants for executing the sale deed. Moreover, the notices which the plaintiff alleged that he had issued, have been issued to the defendants' address at Kothanoor village, from which, they have left as early as in the year 1993 and this fact is also known to the plaintiff. Therefore, deliberately, the notices have been sent to the address in which the defendants do not live. The plaintiff had filed the suit in O.S.No.971 of 2014, O.S.No.527 of 2014 and O.S.No.148 of 2015 with similar allegations and the summons were sent to the defendants' address at Kothanoor village. They have received intimation of the same and when they attempted to take the summons from the Post Office, the Postman insisted upon the defendants to produce the proof of their Kothanoor address and therefore, no proper service had been taken upon the defendants. The defendants would submit that there is no cause of action in filing the suit and the suit is liable to be dismissed. TRIAL COURT:

¶9The learned Principal District Munsif, Salem, had framed the following issues: "(1) thjpaplk; ,we;Jnghd Kj;Jrhkp 2006?k; Mz;nl jhth brhj;jpd; RthjPdj;ij xg;gilj;J tpl;ljhf thjp TwpapUg;gJ cz;ikah? rl;lg;go Vw;Wf; bfhs;s Toajh?

(2) ,t;tHf;F fhytiuahy; ghjpf;fg;gLtjhf gpujpthjpfs; TwpapUg;gJ Vw;g[ilajh?

(3) Kj;Jrhkpapd; Kjy; kidtp bghpaf;fhs; kw;Wk; ,ju egh;fis ,t;tHf;fpd; jug;gpduhf nrh;f;ftpy;iy vd;gjhy; ,t;tHf;F ghjpf;fg;gLfpwjh?

(4) thjp nfhhpa[s;sthW Vw;wij Mw;Wf ghpfhuk; bgw mUfija[ilatuh?

(5) thjpf;F fpilf;fjf;f ,ju ghpfhuk; ahJ?"

¶10The plaintiff had examined himself as P.W.1 and one Kandasamy as P.W.2 and Exs.A1 to A2 were marked. On the side of the defendants, the first defendant had examined herself as D.W.1 and one Elumalai was examined as D.W.2. The learned Judge on an elaborate consideration of both the documentary and oral evidences, came to the conclusion that Exs.A1 and A2 are created documents. The Trial Court has arrived at the findings by taking note of the evidence of P.W.2, who has been examined as attestor of the promissory note and made an endorsement thereon. This witness, in his cross-examination, would submit that one Kumarasamy stood as attestor along with him, in Exs.A1 and A2. However, according to Exs.A1 and A2, it was Kandasamy and one Chinnu Gounder who signed as attestors. Therefore, the evidence of P.W.2 stating that one Kumarasamy has signed as Attestor in Exs.A1 and A2 seems to be false. This would go a long way to prove that the documents in question are fabricated. Hence, the learned Judge had dismissed the suit by stating that the plaintiff has not proved his case and therefore, not entitled for relief for specific performance. The learned Judge has also observed that the suit is hopelessly barred by limitation and that the plaintiff is not in possession and enjoyment of the suit property. Taking note of the fact that the agreement which was executed in the year 2005, is sought to be enforced in the year 2015 and there is no explanation as to why the plaintiff has not filed the suit before the death of the said Muthusamy.

¶11Eventually, the learned Judge has dismissed the suit. Challenging the said judgement and decree, the plaintiff had filed A.S.No.65 of 2017 on the file of the Principal Subordinate Court, Salem. The learned Principal Subordinate Judge, Salem has also confirmed the judgement and decree by the trial Court and dismissed the appeal as against which the appellant is before this Court.

¶12Heard the learned counsel for the appellant and perused the materials available on record.

¶13The plaintiff who claims that the agreement which was executed in the year 2005, has approached the Court only in the year 2015 and there is absolutely no explanation for this delay. Further, according to the plaintiff's case, the final payment was made on 05.06.2006. However, the sale deed has not been executed and it is nearly a month that Muthusamy had died. The plaintiff has not explained why he has not filed the suit during the life time of Muthusamy. Though the plaintiff has requested the defendants to execute the sale deed in his favour, the defendants have avoided the same. This statement has not been proved by the plaintiff, particularly, when it has been specifically denied by the defendants. Therefore, the suit for specific performance is definitely barred by limitation. Both the Courts below relied upon the evidence of P.W.2 and came to the conclusion that the promissory note and the endorsements therein that Exs.A1 to A2 are all fabricated documents. I see no reason to upset these findings of this Courts below. The appellant has not made out any questions of law warranting the suit. In the result, the Second Appeal is dismissed. Consequently, connected C.M.P is closed. No costs.

09.10.2023 Index : Yes/No Speaking order/non-speaking order apd/ssa To

¶1Principal Subordinate Judge, Salem.

2.The Principal District Munsif, Salem.

3.The Section Officer, V.R.Section, High Court, Madras.

P.T.ASHA, J., apd/ssa and C.M.P.No.22127 of 2023

09.10.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.10.2023 CORAM: THE HONOURABLE MS.JUSTICE P.T.ASHA and C.M.P.No.22127 of 2023 K.Paramasivam ... Appellant Vs. 1.Chandra, 2.Raja, 3.Palanisamy, 4.Lakshmi. ... Respondents PRAYER: This Second Appeal is filed under Section 100 of Code of Civil Procedure Code,1908, to set aside the judgement and decree dated 29.07.2019 in A.S.No.65 of 2017 on the file of the Principal Subordinate Court, Salem confirming the judgement and decree dated 19.04.2017 in O.S.No.225 of 2015 on the file of the Principal District Munsif Court, Salem. For appellant : Mr.D.Sivakumaran For respondents : No appearance