Partly allowed

Mumtaj v. Kp Ramasamy Gounder

Madras HC10 Mar 2011AS/387/2008

Case brief

AI extract

What is this about?

The High Court allowed appeals against a trial court decree of specific performance. It held the plaintiff approached with unclean hands due to false claims of possession and payment. Specific performance was denied, but a refund of advance payments with interest was granted. An injunction was set aside in favour of the appellants.

What did the court decide?

Specific performance denied; refund of Rs. 5,25,000 with interest allowed; injunction granted to appellants.

Mumtaj Vs Kp Ramasamy Gounder — Contract and Commercial Disputes | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 10.03.2011

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THE HONOURABLE MS. JUSTICE R. MALA

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Appeal Suit Nos.387 and 388 of 2008

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and

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Mumtaj 2. Syed Hassan Basha

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Haseena

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Reshma .. Appellants in A.S.No.387/2008/ Defendants 1 to 4

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Mumtaj 2. Syed Hassan Basha 3. Haseena .. Appellants in A.S.No.388/2008/ Plaintiffs

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.. Vs ..

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K.P. Ramasamy Gounder

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Mylathal

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Udumalpet Co-operative Land Development Bank, Represented by its Secretary, Udumalpet Taluk, Coimbatore District. ... Respondents in A.S.No.387/2008/ Plaintiff & Defendants 5 & 6

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K.P. Ramasamy Gounder ... Respondent in A.S.No.388/2008 / Defendant

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Prayer in both Appeals : The First Appeals have been filed under Section 96 of C.P.C against the judgment and decree dated 16.07.2007 passed in O.S.Nos.228 of 2004 and 531 of 2006 respectively, by the learned Additional District Judge, Fast Track Court No.1, Coimbatore and to set aside the same with exemplary costs to the appellants.

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For Appellants : Mr.P.V.sanjeev

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COMMON JUDGMENT

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Both the appeals have been arising out of the judgment and decree dated 16.07.2007 passed in O.S.Nos.228 of 2004 and 531 of 2006 respectively, by the learned Additional District Judge, Fast Track Court No.1, Coimbatore.

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The averments made in the plaint in O.S.No.228 of 2004 are as follows:-

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The suit property is originally belonging to one Ibrahim, who is none other than the husband of the first defendant and father of defendants 2 to 4. The said Ibrahim got the property under a Settlement Deed executed by his mother Rokkiyabeevi on 17.06.1968 and he was in possession till his death. He died on 07.05.1998 leaving behind the defendants 1 to 4 as his sole heirs. On 11.05.2003, the plaintiff and defendants 1 to 4 have entered into a Sale Agreement and the sale price was fixed at Rs.10,00,000/-. On that date, a sum of Rs.1,00,000/- has been paid to the defendants 1 to 4 as an advance. It is agreed to pay a sum of Rs.3,00,000/- within a week. After, it is also agreed by both parties that the possession has been handed over to the plaintiff on receipt of Rs.3,00,000/-. Six months time has been granted for taking the balance sale consideration and got the Sale Deed to be executed. On 14.05.2003, the plaintiff has paid a sum of Rs.3,00,000/- to defendants 1 to 4 and obtained the possession of the property. The property in possession was leased out to one Kanjimalai and Selvaraj for seven years, and a sum of Rs.25,000/was fixed as an lease amount for one year. On 20.08.2001, a Lease Deed was also registered about the same. The said Kanjimalai and Selvaraj have filed a Suit against the defendants 1 to 3 for permanent injunction. Hence, a panchayat has been convened in the presence of Udumalpet Chairman Mr.T.T.Gnana Murugan and Dhali Village Panchayat President Mr.Kumaravel. In that, it was agreed that they will release the lease hold right on receipt of Rs.3,00,000/-. In pursuance of that, Rs.3,00,000/has been paid by the plaintiff and the defendants 1 to 3 have agreed to take it as an advance and got the Lease Release Deed in favour of defendants 1 to 3. The lessor has removed the electrical starter wires and Ose pipes. So, the plaintiff, after taking possession of the property, has purchased new electrical starter wires and other ose pipes, out of his own money. The plaintiff has also renovated the well situated in the suit property. The plaintiff has spent a sum of Rs.1,50,000/- for reclaiming the 8 acres of suit property. So, that amount of Rs.1,50,000/- ought to have been repaid by the defendants 1 to 4. After 1 ½ of months, the defendants 1 to 4 have received a sum of Rs.1,25,000/- on 29.06.2003 and they have also made an endorsement to that effect. So far, as on 29.06.2003, defendants 1 to 4 have received a sum of Rs.5,25,000/-. Subsequently, they

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have received a sum of Rs.15,000/- for medical expenses. In total, the plaintiff has paid a sum of Rs.5,40,000/- to the defendants 1 to 4. The balance is only Rs.4,60,000/-.

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(ii) The plaintiff was and is always ready and willing to perform his part of contract. When the plaintiff demanded the Encumbrance Certificate, the defendants 1 to 4 have not given the same. Therefore, the plaintiff has filed a petition before the Komangalam Sub Registrar's Office for getting the Encumbrance Certificate and on 22.08.2003, he has received the same. Then only the plaintiff came to know that the property was mortgaged to Udumalpet Co-operative Land Development Bank for Rs.50,900/and also the defendants 1 to 4 have entered into a Sale Agreement with Mayilathal, who is the fifth defendant. When the plaintiff has made an enquiry about the Sale Agreement with Mayilathal, the defendants 1 to 4 said that they received a sum of Rs.1,00,000/as a loan from the said Mayilathal. That Sale Agreement has been executed only for a security for the amount lent. Since the defendants are taking steps to alienate the property, the plaintiff had issued a notice through his counsel on 27.08.2003 to the defendants 1 to 5. Even though defendants 1, 3, 4 and 5 have received the notice, the fourth defendant alone has issued a reply notice with false allegations. On 08.09.2003, the plaintiff has sent another notice. But the defendants 1 to 3 have not received the same. The fourth defendant alone has received the notice. The plaintiff was present in the Registration Office for getting Sale Deed from the defendants, who never turned out. The plaintiff was always ready and willing to perform his part of contract. Now, the defendants 1 to 4 along with fifth defendant have taking steps to eject the plaintiff from the suit property. Hence, the plaintiff has constrained to file a suit for specific performance and also alternatively for refund of advance amount paid and prayed for a decree.

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The gist and essence of the written statement filed by the first defendant, adopted by D.2, D.3 and D.5 is as follows:The suit property was joint family property. The defendants 1 to 3 have already entered into a Sale Agreement with the fifth defendant-Mayilathal on 03.04.2003. The property was leased out to one Kanjimalai and Selvaraj. Annual lease amount was fixed at Rs.25,000/-. Lease period is seven years. So, they are in possession. Lessees have filed a suit in O.S.No.340 of 2001 before the learned District Munsif, Udumalpet, praying for permanent injunction. On 01.04.2003, a panchayat has been convened in the presence of Udumalpet Chairman Mr.T.T.Gnanamurugan and Dhali Village Panchayat President Mr.Kumaravel. In that panchayat, Mr.Shanmugavel, who is relative of plaintiff, is also participated. In the panchayat, it was

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decided that the defendants 1 to 3 have to pay a sum of Rs.1,50,000/- each to the lessees. So, to settle that amount, defendants 1 to 3 have entered into a Sale Agreement with the fifth defendant-Mayilathal for Rs.2,00,000/-. On the date of agreement, defendants 1 to 3 have received Rs.1,00,000/- as an advance and on 05.06.2003 they paid the balance amount to the lessees and got the Registered Surrender Deed and taken possession of the property. So, the defendants 1 to 3 are in possession and enjoyment of the same. The suit property was consisting of 400 coconut trees. The value of the property was more than Rs.20,00,000/-. When the plaintiff has demanded sale of the property, the defendants 1 to 3 refused to do so. The first defendant was a widow. On 02.04.2001, the second defendant met with an accident and therefore, he was bedridden. Taking note of the defendants pitiable condition, the plaintiff, with the help of his close relatives of Gnanamurugan, Kumaravel and Arumugam, concocted and fabricated Sale Agreement-Ex.A.1 as if the sale price has been fixed at Rs.10,00,000/-; on the same day, a sum of Rs.1,00,000/- has been paid as an advance; after one week, a sum of Rs.3,00,000/- alleged to have been paid and later a sum of Rs.1,25,000/- has been paid to the defendants. The defendants have never executed any sale agreement in favour of the plaintiff. On 10.12.2003, the plaintiff, along with his relatives, attempted to interfere with the peaceful possession and enjoyment of the defendants. So, the defendants have constrained to file a suit for Permanant injunction in O.S.No.283 of 2004 on the file of the District Munsif Court, Udumalpet. The plaintiff has no prima facie case. Hence, the defendants have prayed for dismissal of the suit.

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The gist and essence of the additional written statement filed by the defendants 1, 2 and 3 is as follows:-

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The suit property was leased out to one Kanjimalai and Selvaraj on 20.08.2001 for seven years. Annual lease amount was fixed at Rs.25,000/-. One of the lessees viz., Kanjimalai was closely related to one Mr.Kannaiyan @ Shanmugavel. The plaintiff's daughter was given in marriage to Shanmugavel's son. At the instance of Kanjimalai, the dispute between the defendants 1 to 3 and the cultivating tenants was mediated in the presence of Shanmugavel, Gnanamurugan, Union Chairman of Udumalpet, Mr.Kumaravel, President of Dhali Panchayat and Dubai Arumugam. Later, the plaintiff also joined in the mediation. As per the panchayat held on 01.04.2003, it was agreed that the tenants should vacate the property and in turn, defendants 1 to 3, should pay a sum of Rs.3,00,000/- to them. The said Mr.Shanmugavel owned 2 acres of Nanja lands near the suit property. At the time of panchayat, Mr.Shanmugavel requested the defendants 1 to 3 to sell the property for which the latter refused. The fourth defendant was not in cordial terms with the defendants 1 and 2 in

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the year 2001 after her marriage. She was residing at Angalakurichi along with her husband.

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(ii) In order to pay off the amount to the tenants and take possession, the defendants 1 to 4 have approached the fifth defendant for getting loan of Rs.2,00,000/-, for which, the latter also agreed. However, the fifth defendant and her husband want to register a sale agreement in respect of the suit property to lend money. However, they assured to cancel the agreement on repayment of loan of Rs.2,00,000/- with interest thereto. So, a Sale Agreement in favour of the fifth defendant has been executed and registered by the defendants 1 to 4 on 03.04.2003. On that date, a sum of Rs.1,00,000/- has been received by the defendants 1 to 4 as an advance. All the panchayadars inclusive of Dubai Arumugam and Mr.Shanmugavel and the plaintiff were present. Accordingly, the deed of surrender of lease was prepared on the day. Mr.Shanmugavel, colluding with Dubai Arumugam and plaintiff, had illegally schemed to grab the suit property from the defendants 1 to 4 as they refused to sell. On 19.05.2003, on the guise of obtaining signatures in the deed of surrender of lease in favour of the tenants, signatures of the defendants 1 to 4 were obtained in a prepared agreement for sale in the name of the plaintiff which the defendants 1 to 4 had no knowledge. The first defendant is an illiterate. Defendants 2 to 4 were not well educated. Bona fide believing that they were signing the surrender deed and documents connected thereto for registration, they put their signature in all the papers. Mr.Shanmugavel, the plaintiff and the attestors could have fraudulently obtained the signature of the defendants 1 to 4 in the agreement for sale. Mr.Shanmugaval and the plaintiff were well aware of the registered Sale Agreement dated 03.04.2003. The fifth defendant could not pay the agreed amount of Rs.1,00,000/-. Hence, the registration could not be done on 19.05.2003. Subsequently, on 05.06.2003, the fifth defendant has paid a sum of Rs.1,00,000/to the defendants 1 to 4. Therefore, registration was completed on 05.06.2003. The suit agreement for sale is a fabricated one. So, the plaintiff is not entitled to decree of specific performance. The defendants 1 to 4 have absolutely no intention to sell the property. Mr.Shanmugavel and the plaintiff have obtained the signatures of the defendants on the reserve of the 1^st two sheets of agreement with no recital therein which have been fabricated into endorsement dated 14.05.2003 and 29.06.2003. The plaintiff has paid no amount to the defendants 1 to 4 on the respective dates. The deed of surrender has been executed on 19.05.2003 and it was registered on 05.06.2003. The defendants 1 to 4 took possession of the property from the tenants only on 05.06.2003. So, the plaintiff was not put into possession on 14.05.2003. Thus, the plaintiff has pleaded a false case and approached the Court with unclean hands. Hence, he is not

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entitled to equitable relief of specific performance. He is also not entitled to alternate relief of refund of advance amount, as he did not pay any amount to the defendants. The averement that the plaintiff has reclaimed the land and also purchased wires and pipes and installed in the suit property is absolutely false and baseless. The plaintiff has not paid any amount to the defendants 1 to 4 to meet out the medical expenses for the first defendant.

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(iii) Without prejudice to the above contentions, the defendants submit that the alleged readiness and willingness pleaded in the plaint are only "make believe" allegations intended to defraud the defendants and grab their property. The defendants never intended to sell the suit property. Hence, the defendants have prayed for dismissal of the suit.

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The averments made in the plaint in O.S.No.531 of 2006 are as follows:-

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The suit property was owned by one Ibrahim, who got the same by way of settlement deed dated 17.06.1968 executed by his mother. From the date of settlement deed till his death he was in possession and enjoyment of the property. In the year 1998, he died intestate leaving behind the plaintiffs as his sole heirs i.e., the first plaintiff is his wife and the plaintiffs 2 and 3 are his children. The plaintiffs 1 to 3 are leased out the property to one Kanjimalai and Selvaraj on 20.08.2001, for seven years under a Registered Lease Deed. So, the lessees are in possession and enjoyment of the same. There was a dispute between the Tenants and the plaintiffs. So, the Tenants have filed a suit in O.S.No.340 of 2001 for bare injunction in respect of the suit. A panchayat was convened on 01.04.2003 in the presence of plaintiff K.P.Ramasamy Gounder and his Sammanthy R.Shanmugavel along with Udumalpet Union Chairman Gnanamurugan and Dhali Grama Panchayat President Kumaravel. In the Panchayat, it was decided that the plaintiffs ought to have paid a sum of Rs.1,50,000/- each to the tenants and after receipt of the amount, the tenants must hand over the possession to the plaintiffs. In pursuance of that, the plaintiffs entered into an agreement of sale with one Mayilathal on 03.04.2003 for Rs.2,00,000/- and received a sum of Rs.1,00,000/- on the same day. The balance sum has been received in the month of June and paid a sum of Rs.3,00,000/- to both Kanjimalai and Selvaraj and obtained a Registered Lease of Surrender Deed and obtained the possession. Now, the suit property is in possession and enjoyment of the plaintiffs. The value is more than Rs.20,00,000/-. The plaintiffs have refused to give the suit property to the defendant. The first plaintiff was a widow. On 02.04.2001, the second plaintiff met with an accident and therefore, he was bedridden. Taking note of their pitiable

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condition, the defendant, with the help of his close relatives of Gnanamurugan, Kumaravel and Arumugam, concocted a fabricated Sale Agreement, dated 11.05.2003 as if the sale price has been fixed at Rs.10,00,000/-; on the same day, a sum of Rs.1,00,000/- has been paid as an advance; after one week, a sum of Rs.3,00,000/alleged to have been paid and later a sum of Rs.1,25,000/- has been paid by the defendant to the plaintiffs. There is no such sale agreement. The plaintiffs have never received any amount from the defendant. The defendant has filed a suit in O.S.No.229 of 2003 for specific performance. On 10.12.2003, the defendant, along with his relatives, attempted to interfere with the plaintiffs' peaceful possession and enjoyment. Hence, the plaintiffs are constrained to file a suit for baree injunction restraining the defendant from interfering with their possession.

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The gist and essence of the written statement filed by the defendant in O.S.No.531 of 2006 is as follows:The plaintiffs and the defendant and one Reshma have entered into a sale agreement on 11.05.2003 for Rs.10,00,000/-. They received a sum of Rs.1,00,000/- on the date. The second instalment of Rs.3,00,000/- has been paid and facilitating to hand over Rs.3,00,000/- to one Kanjimalai and Selvaraj and obtained an endorsement from the plaintiffs that Surrender Deed also handed over to the defendant. So, contra to these are false and imaginary, the defendant has spent a sum of Rs.1,50,000/- for improving the suit property. The plaintiffs never in possession and enjoyment of the same. The value mentioned by the plaintiffs is not correct. It is also false to contend that the sale agreement was concocted by the defendant with the help of his relatives and seized the documents with the help of his relatives has been totally false and baseless. The Sale Agreement is true and genuine one. The plaintiffs and the said Reshma have accepted and consented for entered into a sale agreement and received a portion of the sale consideration and handed over the possession and made an endorsement. No cause of action for the suit. Hence, the defendant had prayed for dismissal of the suit.

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The learned trial Judge, after considering the arguments advanced by the learned counsel on either side as well as the averments both in the plaint and written statement filed by defendants in both the suits, had framed three issues in O.S.No.228 of 2004 and four issues in O.S.No.531 of 2006. Joint trial was ordered. After considering the oral evidence of P.Ws.1 and 2 and D.Ws.1 to 3 and the documentary evidence of Exs.A.1 to A.20 and Exs.B.1 to B.4, the learned trial Judge had dismissed the suit in O.S.No.531 of 2006, against which A.S.No.388 of 2008 has been preferred by the plaintiffs. In O.S.No.228 of 2004, the learned Judge has granted a decree of specific performance in favour of the plaintiff and three months time has been granted,

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against which, the defendants in the trial Court has come forward with A.S.No.387 of 2008.

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After Considering the arguments advanced by the learned counsel on either side, this Court had framed the following points for consideration:-

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"1. Whether the trial Court is correct in holding that Ex.A.1-Sale Agreement is true and genuine?

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Whether the trial Court is correct in granting decree of specific performance?

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Whether the trial Court is correct in dismissing the suit for injunction filed by the appellants?

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To what relief the appellants are entitled to in both the appeals?"

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The learned counsel appearing for the appellants would submit that the suit property is originally owned by Ibrahim, H/o. the first appellant, who got the same by settlement deed executed by his mother under Ex.A.7. He died intestate. So, the appellants as well as Reshma inherited the property. They are the owners of the property. The appellants have entered into a lease agreement under Ex.A.4 with one Kanjimalai and Selvaraj. That Kanjimalai and Selvaraj have filed a suit in O.S.No.340 of 2001 on the file of the District Munsif Court, Udumalpet. Along with the suit, they have also filed an application in I.A.No.1641 of 2001 and obtained an order of interim injunction against the appellants on 22.11.2001. So, a panchayat has been convened. In that panchayat, it was agreed that the appellants ought to pay a sum of Rs.1,50,000/- each to Kanjimalai and Selvaraj for the reason that they entered into a sale agreement with the fifth defendant Mayilathal under Ex.B.2 for Rs.2,00,000/-. A sum of Rs.1,00,000/- has been received as an advance. Subsequently, in the month of June, he paid another sum of Rs.1,00,000/- and the appellants have paid a sum of Rs.3,00,000/- to the said Kanjimalai and Selvaraj and obtained a Registered Surrender DeedEx.A.3. They are in possession and enjoyment of the property, while obtaining the signature, in the Surrender Deed, the respondent K.P.Ramasamy and his Sammanthi Shanmugavel and his close associates and relatives Gnanamurugan, Kumaravel and Dubai Arumugam have obtained the signatures from the appellants and fabricated the documents Exs.A.1, A.2 and A.5. So, the trial Court has not considered that Exs.A.1, A.2 and A.5 are fabricated documents.

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The learned counsel appearing for the appellants has https://hcservices.ecourts.gov.in/hcservices/

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further submitted that the value of the property is more than Rs.20,00,000/-. The adjacent to suit property was belonging to one Shanmugavel, who is none other than the Sammanthi of the respondent K.P.Ramasamy. So, in the panchayat, they stealthily obtained the signatures from the appellants and fabricated it as a Sale Agreement. They have concocted Ex.A.1 to grab the suit property from the appellants. Dubai Arumugam, who is an attestor of Ex.B.2, is also an attestor in the Sale Agreement dated 11.05.2003. So, he was examined as P.W.2, who was well aware of the Sale Agreement-Ex.B.2. Even on the date of alleged Sale Agreement-Ex.A.1, the property was mortgaged with the 6^th defendant viz., Udumalpet Co-operative Land Development Bank. So, all these facts have not been mentioned in Ex.A.1, which clearly proved that the document has been fabricated, taking advantage of pitiable condition of the appellants. So, the learned counsel appearing for the appellants submits that the trial Court has committed error in deciding that Ex.A.1 is true and genuine document. The learned counsel has further submitted that non-impleading of the Reshma in the suit was fatal to the case of dismissal of the injunction is not correct. Admittedly, the appellants are in possession of the suit property. The trial Court ought to have granted injunction. So, the non impleading of co-owner will not in any way affect the case. The said fact has not been considered by the trial Court. Hence, the learned counsel appearing for the appellants had prayed for allowing of both the appeals. He further submitted that he never ready and willing to perform his part of contract and he relied upon the decisions of this Court and Hon'ble Apex Court.

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Repudiating the same, the learned counsel appearing for the first respondent would submit that Ex.A.1 is a true and genuine document. To prove the same, P.W.2 was examined, who is the attestor of Ex.A.1. The payment of Rs.3,00,000/- has been evidenced by Ex.A.2 and payment of Rs.1,25,000/- has been evidenced by Ex.A.6. The original Surrender Deed and original Lease Deed Exs.A.3 and A.4 also filed by the appellants, which shows that the suit property was and is in possession and enjoyment of the first respondent. The learned counsel has further submitted that Ex.B.2 is only a security for the loan, that has been corroborated by the evidence of D.W.2/the fifth defendant, who is the agreement holder under Ex.B.2. So, the trial Court has considered all the aspects in proper perspective and came to the correct conclusion. Hence, the learned counsel appearing for the first respondent had prayed for dismissal of both the appeals.

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Point No:1

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The suit property was originally belonging to Rockiya Beevi. She executed a Settlement Deed under Ex.A.7 on 17.06.1968. In pursuance of that, Ibrahim, who is husband of the first appellant and father of appellants 2 and 3, was in possession and enjoyment of the suit property till his death. After his death, the appellants and Reshma succeeded the property. There is no dispute in respect of ownership of the property.

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Admittedly, the Encumbrance Certificate has been marked as Ex.A.6 in between 1.1.1989 to 21.08.2003, which mentioned six transactions and out of six, two encumbrance. One is Ex.B.2, the Sale Agreement between the defendants 1 to 4 and the fifth defendant for Rs.2,00,000/-. Another one is lease deed in between the defendants 1 to 3 and Kanjimalai and Selvaraj on 20.08.2002 and another on 20.03.1989 during the life time of Ibrahim, he executed a mortgage deed in favour of Udumalpet Cooperative Land Development Bank for Rs.50,900/-. Subsequently, another simple mortgage deed has been executed in favour of one Chinnappan that has been discharged on 24.06.1996. So, on the date of Ex.A.1, there is a mortgage in favour of Udumalpet Cooperative Land Development Bank dated 20.03.1989 and the sale agreement between the defendants 1 to 4 and the fifth defendant Mayilathal for Rs.2,00,000/- has been mentioned. But there is no mentioning about the same in Ex.A.1. It is well settled that a person, who is intended to purchase the property for nearly Rs.10,00,000/-, he ought to have obtained Encumbrance Certificate before he negotiate with sale consideration. But admittedly, Ex.A.6-Encumbrance Certificate has been obtained only on 22.08.2003, after three months from Ex.A.1.

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At this juncture, it is appropriate to consider the arguments advanced by the learned counsel appearing for the first respondent that the first respondent has filed the original documents of Lease Surrender Deed-Ex.A.3, Original Lease DeedEx.A.4, which shows that at the time of agreement, those documents have been handed over to him. But the above argument has been considered on the basis of oral evidence let in by both sides. It is well settled law that the plaintiff must prove the case, since here the defendant and the appellants herein have raised the defence that Exs.A.1, A.2 and A.5, are fabricated documents, so it is a bounden duty of the first respondent viz., K.P.Ramasamy to prove that Ex.A.1 is true and genuine document. It is also appropriate to consider Ex.A.1 and the evidence of P.Ws.1 and 2. P.W.2 is none other than the one of the attestor for Ex.A.1. He is also the attestor for Ex.B.2, the sale agreement in favour of the fifth defendant/Mayilathal/D.W.2.

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Before considering the oral evidence, it is appropriate https://hcservices.ecourts.gov.in/hcservices/

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to consider the arguments advanced by the learned counsel appearing for the appellants that since Mr.Kanjimalai and Mr.Selvaraj have filed a suit and obtained an interim order as per Ex.B.3. A panchayat has been convened. In the panchayat, Mr.Kannaiyan @ Shanmugavel, who is none other than the Sammanthi of P.W.1, Gnanamurugan, Union Chairman of Udumalpet, Mr.Kumaravel, President of Dhali Panchayat and Dubai Arumugam/P.W.2 were participated. That has been corroborated by P.Ws.1 and 2. As per the averments and as per the evidence of D.W.1, adjacent to the suit property, Mr.Shanmugavel, who is Sammanthi of P.W.1, is having two acres of land and the same has been accepted by P.W.1 in his evidence. So, that factum of defence has been proved by P.W.1. In such circumstances, it is appropriate to consider whether Ex.A.1 is a true and genuine document.

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As already stated, P.W.1 has corroborated the averments made in the plaint in the suit for specific performance. Some aspects the evidence of P.W.1 and D.W.1 and in respect of panchayat has been complemented with each other. So, admittedly, P.W.2-Arumugam, who is one of the attestors both in Exs.A.2 and B.2. Ex.B.2 came into existence on 03.04.2003. Ex.B.2 is a registered document. Ex.A.1 came into existence on 11.05.2003, which is an unregistered document. In both the documents, P.W.2 is one of the attestors. So, it is relevant for assessing the evidence of P.W.2, Dubai Arumugam.

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P.W.2, Dubai Arumugam, in his chief examination, has stated that sale agreement in favour of Mayilathal was executed only for security for the amount borrowed. In his evidence, he has further stated that the defendants 1 to 3 were introduced by one Munir Begam, who was assisting his mother. In Ex.B.2, Arumugam and Palaniswamy are the attestors. So, the execution of Ex.B.2 has been admitted. He has further stated that the original deed has been handed over to the Mayilathal on the date of Ex.B.2. Even though in his cross examination, he has stated that as per Ex.B.2 D.W.1 has received a sum of Rs.1,00,000/- and handed over a sum of Rs.50,000/- each to Kanjimalai and Selvaraj. But, subsequently, in another line, he has stated that D.W.1 has received a sum of Rs.1,00,000/- from him and at the time of panchayat, they demanded a sum of Rs.3,00,000/-. So, Mumdaj has paid Rs.50,000/- each tenants and a receipt has been given to Gnanamurugan, Union Chairman of Udumalpet. He has further stated that Gnanamurugan had died. In his cross examination, he gone to the extent of saying that before two months prior to Ex.A.1, there was a negotiation taken between the defendants 1 to 3 and the plaintiff through P.W.2 and Shanmugavel. He has further stated that first the talks were negotiated at his office. Subsequently, it was at Shanmugavel's house. The defendants 1 to

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4 have demanded a sum of Rs.15,00,000/-. But, the plaintiff is ready to pay the same. Finally, it was decided for Rs.10,00,000/-. So, it is worthwhile to extract the following portion.

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"Fj;jifjhuh;fSf;Ff; bfhLf;f ntz;Lk; vd;W jhd; U:/1 , yl;rj;ij. Kk;jh$; v';fsplk; th';fpdhh;/ 3 ,yl;r U:gha; bfhLf;f ntz;Lk; vd;W g";rhaj;Jg; ngRk;nghJ. Kk;jh$;ngfk; Fj;jifjhuh;fSf;F 50 Mapuk;. 50 Mapuk; vd;W bfhLj;jhh;/ mjw;F Fj;jifjhuh;fs; jyh 50 Mapuj;jpw;F nrh;kdplk; urPJ vGjpf;bfhLj;Js;shh;fs;/ nrh;kd; "hdKUfdplk; jhd; urPJ cs;sJ/ "hdKUfd; ,we;J tpl;lhh;/ thjp rh/M/1 fpua xg;ge;jk; vGJtjw;F 2 khj';fSf;F Kd;gpUe;nj. thjpf;Fk;. 1 Kjy; 3 gpujpthjpfSf;Fk;. vd; K:ykhft[k;. rz;Kfnty; K:ykhft[k; ngr;R thh;j;ij ele;jJ/ Kjypy; vdJ Mgprpy; itj;Jg; ngrpndhk;/ gpd;g[ mf;hpbkd;l; nghLk;nghJ ty;yFz;lhg[uk; rz;Kfnty; tPl;oy; itj;Jg; ngrg;gl;lJ/ rz;Kfnty; tPl;oy; ngRk;nghJ. thjpa[k;. ehDk;. Rz;KfntYk;. Fkhunty; Mfpnahh;fs; ,Ue;njhk;/ thjp 8 ,yl;rk; U:gha;f;Ff; nfl;lhh;/ 1 Kjy; 4 tiu gpujpthjpfs; 15 ,yl;rk; nfl;lhh;fs;/ filrpahf 10 ,yl;rj;jpw;F ngrp Kof;fg;gl;lJ/ "

¶65

(emphasis supplied)

¶66

But admittedly, Ex.B.2 came into existence on 03.04.2003. Ex.A.1 came into existence on 11.05.2003 within a month. But whereas P.W.2 has stated that two months prior to Ex.A.1, there was a negotiation taken place through P.W.2 and Shanmugavel. It is pertinent to note that P.W.2/Arumugam is one of the attestors of all the documents. There is no recital in Ex.A.1 in reference to Ex.B.2 and no provision made for discharge of mortgage in favour of Udumalpet Co-operative Land Development Bank. But in respect of possession, P.W.2, in his cross examination, has stated that the property was in possession of the tenant on 14.05.2003 when a sum of Rs.3,00,000/- has been paid to the Chairman. Immediately, Kanjimalai and Selvaraj has handed over the possession to them. He has further stated that as soon as the amount has been handed over to the tenants, Gnanamurugan has obtained a receipt for that amount. After one week, the balance amount has been paid and obtained delivery receipt. He has further stated that he is an attestor of Ex.A.5 also. That evidence of P.W.2 has clearly proved that he is more loyal than his master in regarding the possession.

¶67

P.W.1, in his evidence, has stated that on 14.05.2003, the suit property was in possession of the tenants. He has further stated that he does not know on 05.06.2003, the tenants

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have handed over the property defendants 1 to 3. He has further stated that in Ex.A.3 there is no recital that the property has been handed over to him. He has denied the suggestion that in Exs.A.1, A.2 and A.5, endorsement has been fabricated. In his cross, he fairly conceded that he does not know the encumbrance on the date of agreement. He has further stated that on 14.05.2003, the possession was not handed over to him.

¶70

So, it is pertinent to consider the evidence of D.W.1, who is one of the alleged executant. D.W.1, In his chief examination, had stated that he never executed the document i.e., Ex.A.1. He has further stated that in what circumstances, Ex.A.1 came into existence but D.W.2/Mayilathal evidence is vital. In her evidence, D.W.2, has stated that the first defendant has requested the loan for Rs.2,00,000/-. So, she wanted a sale agreement. But she is not in a position to pay that amount on the date. A sum of Rs.1,00,000/- has been paid in the month of June. So, the evidence of P.W.2, D.W.2 has clearly proved that Ex.B.2-Sale Agreement in favour of D.W.2/D.5, Mylathal is only for security for the amount borrowed by the appellants herein. So, no weightage will be given to Ex.B.2.

¶71

Now, this Court has to peruse the document Ex.A.1. In Ex.A.1, the signatures of both the intended purchasers and intended vendor and vendee have been find place. But on a perusal of Ex.A.1, which shows that Ex.A.1 contained the signature of the appellants and Reshma. So, Exs.A.1, A.2 and A.5 contained the signatures of the appellants along with the signature of Reshma. But in Ex.A.2, it was mentioned that the property has been handed over on 14.05.2003. But the evidence of P.W.1, P.W.2 and D.W.1 and the document Ex.A.3 have proved that the possession was not handed over the first respondent/plaintiff on 14.05.2003. So, the first respondent/plaintiff has not come to the Court with clean hands. Further, Ex.A.3, Lease Surrender Deed dated is 19.05.2003, which was registered on 05.06.2003.

¶72

Kanjimalai was examined as D.W.3. In his chief examination, he has stated that on 05.06.2003, they handed over the possession to Mumtaj Vagaiara, the appellants herein. In his cross examination, he has stated that they received a sum of Rs.1,00,000/-. After receipt of Rs.2,00,000/-, they gave a receipt to this panchayadars. He has further stated that he came to know about Ex.B.2-Sale Agreement in favour of the Mayilathal after two days after the panchayat. After receipt of Rs.3,00,000/-, the property has been handed over before 14.05.2003 has been denied by him. He further stated that he denied the suggestion that he received Rs.3,00,000/- from the plaintiff and also he handed over the possession to the plaintiff. So, while considering the evidence of D.W.3 and

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P.Ws.1 and 2, which has clearly proved that the possession was not handed over to the plaintiff/first respondent on 14.05.2003. But as per the evidence of D.W.2, that possession was handed over to the appellants only on 05.06.2003. So which falsified the case of the first respondent/plaintiff that the possession was taken by him on 14.05.2003 and he spent a sum of Rs.1,50,000/for reclaiming the property and also purchase the new electrical starter wires and other pipelines.

¶75

Further, it is pertinent to note that in the trial court, the learned trial Judge has come to the conclusion that the appellants are in possession and enjoyment of the property. But however, the learned trial Judge had dismissed the suit on the ground that the Rashma, who is one of the daughter of the first appellant, was not impleaded either as a plaintiff or as a defendant. Hence, the suit was dismissed. But the finding has not been challenged by the first respondent herein. In such circumstances, I am of the view that the first respondent/plaintiff is not put into possession in pursuance of Ex.A.2.

¶76

The learned counsel appearing for the first respondent/plaintiff would submit that all the original documents viz., Lease Surrender Deed and the Settlement Deed were filed by the appellants. The reason has been assigned by the appellants that they are in pitiable condition, at the time of panchayat, the first respondent/plaintiff and his close relatives and friends have convened a panchayat and the panchayatars have obtained all the documents and handed over the same to the first respondent/plaintiff. That explanation has been convincing because Ex.A.3 came into existence on 19.05.2003 but registered only on 05.06.2003. But the original was filed by the first respondent/plaintiff. Ex.A.4-Original Lease Deed also filed by him. But as per the evidence of D.W.3, the possession was handed over to the appellants herein. While he was in box, no suggestion was put to him that he was only to hand over the possession to the first respondent/plaintiff nor to the appellants/defendants 1 to 3.

¶77

In such circumstances, I am of the view that the possession was not given to the first respondent/plaintiff. The possession was with the appellants. As already stated, Ex.A.1Sale Agreement and Exs.A.2 and A.5 contain the signatures of the appellants. As soon as on 27.08.2003 the plaintiff issued a notice under Ex.A.8, the acknowledgement card has been received and the same has been marked as Exs.A.9 to 12. After issuing notice under Ex.A.8, the plaintiff has filed the suit. Even though in Ex.A.1 six months time has been granted, he issued notice within two months. No reason has been assigned what

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prompted him to issue a notice immediately. But admittedly, no reply. As soon as they filed the suit, in the suit, the appellants raised the plea of fabricate of the document Ex.A.1. But if really they had not executed a sale agreement what prevented the appellants to issue a reply notice. He kept quiet all along. The fifth defendant alone has received the notice dated 05.11.2003. But no reply. So, it has taken some bearing that Ex.A.1 is a true and genuine document.

¶80

So, I am of the view that Ex.A.1 is a true and genuine document. So, the trial Court is correct in holding that Ex.A.1Sale Agreement is a true and genuine document executed by the appellants along with another daughter Reshma, who is cited as respondent No.4. The point No.1 is answered accordingly.

¶81

Point No:2

¶82

The learned counsel appearing for the appellants would submit that even the trial Court has come to the correct conclusion that Ex.A.1 is a true and genuine document. But the first respondent/plaintiff has not come to the Court with clean hands. The first respondent/plaintiff has pleaded that he took possession on 14.05.2003. He has also spent a sum of Rs.1,50,000/- for improving the property by way of reclaiming the suit property and deepening the well and purchasing the electrical motors starter wires and pipelines. To substantiate the same, he has not filed any documents. Furthermore, while considering the evidence of D.W.3, who is a tenant, along with the evidence of D.W.1, there is no clinching evidence to show that a sum of Rs.1,50,000/- has been spent by the first respondent/plaintiff for improving the suit property. The trial court also has disbelieved the statement of P.W.1/first respondent because as already stated, the possession was not handed over to him. Furthermore, the first respondent herein has stated that he has paid Rs.12,500/- for medical expenses to the first defendant. But admittedly, no document has been filed. So, that has also not been accepted by the trial Court. That factum also has been disbelieved by him, which shows that the first respondent/plaintiff has not come to the Court with clean hands.

¶83

Furthermore, it is pertinent to note that if a prudent man entered into a sale agreement, he ought to have verified the encumbrance on the property before negotiating, then only, he started negotiation. Admittedly, on the date of Ex.A.1, Ex.B.2 as well as the mortgage in favour of Udumalpet Co-operative Land Development Bank, are existence. No reference has been made in this aspect in Ex.A.1- Sale Agreement. He further throwing mud on the appellants stating that even though the appellants never obtained the Encumbrance Certificate and handed over the same, he

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has also filed Exs.A.6 and A.20, EC from 01.01.1989 to 09.11.2003 till the date of filing the suit. Furthermore, the first respondent herein has not proved that he was put in possession on 14.05.2003. He has also not proved that he had spent a sum of Rs.1,50,000/- for developing and reclaiming the suit property and deepening of the well and lay pipelines and purchase of wires and electric motor starter, which has clearly proved that he has placed false case and claim before the Court.

¶86

In his plaint in paragraph No.22, he has specifically mentioned that he has paid Rs.5,40,000/-. He is ready to pay Rs.4,60,000/-. But in paragraph No.23, he has specifically mentioned that if the defendants are not incapable of executing the Sale Deed, he is entitled alternative prayer for Rs.5,40,000/- and also developmental charges for Rs.1,50,000/-. In total, he is entitled to a sum of Rs.6,90,000/-. His second prayer is for alternatively for recovery of amount paid of Rs.6,90,000/-. He has further stated in Ex.A.13 he has stated that the appellants herein have ought to have measured the property and handed over the same, which has clearly proved that he has not come to the Court with clean hands.

¶87

It is well settled principles of law that a person, who approached the Court for equitable relief for specific performance, he ought to have approached the Court with clean hands. But here, the avarments in the plaint itself proved how he want to grab the money of the appellants by stating that he spent Rs.1,50,000/- for developmental charges of the suit property, even though the possession was not handed over to first respondent/plaintiff. He also further stated that he has paid a sum of Rs.15,000/- but no document has been filed. In such circumstances, I am of the view that the first respondent/plaintiff is not approached the Court with clean hands.

¶88

As stated supra, that the plaintiff has not come to the Court with clean hands but only with false case, it is worthwhile to notice the following decisions:-

¶89

(a) 1976 (1) MLJ 243 (Madras High Court): Ramaswamy Gounder Vs. Venkatachalam:

¶90

"The plaintiff had filed the suit for specific performance of an agreement making false allegations. The falsity of the case directly impinged on the essential ingredients and elements necessary for claiming the relief. On the question whether the plaintiff would be entitled to the relief, held, the falsity of the case put forward by the plaintiff disentitled him from obtaining the discretionary

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relief of specific performance of agreement."

¶93

(emphasis supplied)

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(b) 2003 (1) MLJ 626 (Division Bench of Madras High Court): Arunachala Mudaliar Vs. Jayalakshmi Ammal):

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"Plaintiff is not entitled to decree since plaintiff's statements on material particulars are false."

¶96

"The respondent had also claimed that she was in possession and that the appellant had interfered with her possession on 25.4.1982. The evidence shows that she was neither in possession nor was there any interference with possession. Viewed from this perspective it is clear that respondent is not entitled to a decree."

¶97

"It is true that not all false statements disentitle the suitor who comes to Court for specific performance, but in this case, the variance from truth is not negligible and on several material particulars the plaintiff's case has been found to be false."

¶98

(emphasis supplied)

¶99

¶100

"12. .... The plaintiff who came to the Court with a false case in material ingredients necessary for the grant of relief of specific performance will not be entitled to the equitable relief at all. It is obvious that in the present case the appellant has based his relief on Ex.A-1 after making interpolation so as to make it appear that he has a right in it. And on the ratio laid down in the decisions referred to above, even this is sufficient to refuse the relief to the appellant. ...."

¶101

(emphasis supplied)

¶102

(d) 1993 (2) LW 86 : Division Bench of Madras High Court: Nallaya Gounder & another Vs. P.Ramaswami Gounder etc. & 3 others:

¶103

" Held : in the present action, the Court has no hesitation in negativing specific performance for the reason that the plaintiffs have not come forward with clean hands in asking for the equitable relief. There is positive proof that Ex.A9 delivery receipt has been concocted for the purpose of this case. "We have also seen that the plaintiffs have put forward a false case regarding convening of panchayat. So, even if we are to take that Ex.A-1 agreement has come into

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existence prior to Ex.A agreement, the plaintiffs cannot maintain this action."

¶106

(emphasis supplied)

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(e) 1993 (2) MLJ 560 (Division Bench of Madras High Court) : Viswanathan Vs. Lakshmiammal:

¶108

"The plaintiffs have come forward with a false case not only in the pleadings but also in the evidence. Hence, the Court holds that the plaintiffs are not entitled to the relief of specific performance."

¶109

(emphasis supplied)

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(f) 1994 (2) MLJ 207 (Division Bench of Madras High Court): Krishnan Nair Vs. Parameswaran Pillai (died):

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"In the present case, the plaintiff has approached the Court with a false case regarding delivery of possession and, hence, he is not entitled to get a decree for specific performance."

¶112

(emphasis supplied)

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(g) 2001 (1) MLJ 172 (Division Bench of Madras High Court): Safia Banu Vs. Asamadhunnisabi:

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"The import of the section (Section 20 of the Specific Relief Act) in the context of the case in hand, could be reduced into a nutshell that the specific relief is a discretionary relief of the Court and the discretion should be exercised on sound principles of law and reasons, that there cannot be any arbitrary refusal of the discretionary relief in favour of a party and that the Court shall exercise the discretion in a judicious manner, and the requirement of the warranting circumstances in the given case. Since the power that is exercised under the section by Courts being discretionary one, the party who seeks to avail of the equitable jurisdiction of the Court must come to the Court with clean hands and any party who makes false allegations and does not come with clean hands is not entitled to the equitable relief."

¶115

(emphasis supplied)

¶116

Therefore, it is clearly proved that the plaintiff has not come to the Court with clean hands. So, he is not entitled to relief of specific performance. But, however, this Court is of the opinion that Exs.A.1, A.2 and A.5 are true and genuine documents. So, the appellants are entitled to recover that amount paid i.e., Rs.5,25,000/- with interest at the rate of 9% from the date of plaint till the date of decree thereafter 6%. So, the

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trial Court is error in granting decree of specific performance. So, it is liable to be set aside. However, the first respondent/plaintiff is entitled for recovery/refund of Rs.5,25,000/- with interest. Point No.2 is answered accordingly.

¶119

Point No.3:

¶120

Admittedly, the appellants are the owner of the property along with one of the first appellants' daughter Reshma. Now, the first respondent/plaintiff viz.,K.P.Ramasamy has attempted to interfere with the possession. Hence, they filed a suit for bare injunction. In the suit for bare injunction, all the co-owners are not necessary party. So, not impleading the Reshma is not a ground for dismissal of the suit for bare injunction. But a co-owner can maintain a suit for injunction and recovery of possession on behalf of the other co-owners because each and every co-owner has right in each and every bit of the land. Possession of the one co-owner is possession of the other co-owner also, since the appellants want to protect the property from the third party, and co-owner is entitled to file the suit against the third party.

¶121

It is well settled principle of law that no injunction can be granted against the co-owner and owners of the property. Admittedly, the suit was not filed against the Reshma i.e., coowner of the appellants/plaintiffs. But the suit has been filed only against the third party, who is an alleged agreement holder, since he attempted to interfere with the possession. Once the trial Court has come to the conclusion that the appellants are in possession and enjoyment of the property, they are entitled injunction. Further, even the trial Court has come to the conclusion that Ex.A.1 is a true and genuine document. Once the trial Court has accepted and decided that the agreement holder is not in possession of the property, the true owner is in possession of the property, he is entitled injunction against the agreement holder till the Sale Deed has been executed and delivery has been taken place through the Court of law. So, the trial Court has committed an error in refusing to grant injunction in favour of the appellants.

¶122

Hence, I am of the view that the appellants are entitled to injunction restraining the respondents with their peaceful possession and enjoyment of the same. So, the appellants are entitled injunction as prayed for in the plaint. Point No.3 is answered accordingly.

¶123

Point No.4:

¶124

In view of the answer given to point Nos.1 to 3, Exs.A.1, A.2 and A.5 are true and genuine. But the first respondent/plaintiff was not come to Court with clean hands.

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Hence, he is not entitled to equitable relief of decree of specific performance. Furthermore, in his plaint and as well as in his prayer, he has specifically stated that he is entitled alternative prayer. Hence, the first respondent/plaintiff is entitled to only refund of the amount paid under Exs.A.1, A.2 and A.5 at Rs.5,25,000/- with interest at the rate of 9% from the date of suit till the date of decree and thereafter 6% till the date of realisation.

¶127

It is settled law that a co-owner can file a suit against the third party for injunction to safeguard the interest of all the co-owners, without impleading the other co-owners. Since the suit property is in possession and enjoyment of the appellants, they are the true owners. Hence, they are entitled injunction as prayed for in the plaint. Hence, both the appeals are allowed.

¶128

(ii) The suit is decreed only for alternative prayer that the first respondent/plaintiff is entitled for recovery of the amount of Rs.5,25,000/- with interest at the rate of 9% from the date of suit till the date of decree and thereafter at 6% till the date of realisation.

¶129

(iii) In other aspects, the suit in O.S.No.288 of 2008 is

¶130

dismissed. (iv) In respect of A.S.No.388 of 2008, the appeal is

¶131

allowed.

¶132

(v) The judgement and decree passed by the learned Additional District Judge, Fast Track Court No.I, Coimbatore, is hereby set aside.

¶133

(vi) In trial Court, the suit in O.S.No.531 of 2006 is decreed as prayed for in the plaint without costs. (vii) Consequently, connected miscellaneous petition is closed.

¶134

Sub Asst.Registrar.

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jrl

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