In a second appeal, the Madras High Court dismissed the case, upholding concurrent lower court decrees that dismissed a suit for specific performance of a sale agreement and refund of advance, finding the agreement fabricated due to lack of proof of readiness and willingness.
Second Appeal dismissed; concurrent judgments confirmed; no alternative relief granted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.07.2021
CORAM
THE HONOURABLE Ms.JUSTICE P.T. ASHA
S.A.No.268 of 2008 and M.P.No.1 of 2008
Govindasamy ... Appellant/Appellant/Plaintiff
Vs.
PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree passed in A.S.No.29 of 2002, dated 10.06.2003 on the file of the Sub Court, Dharapuram, confirming the Judgment and Decree passed in O.S.No.113 of 2000, dated 28.03.2002 on the file of the District Munsif Court, Kangayam, Erode District.
For Respondents : No appearance
JUDGMENT
The plaintiff in a suit for specific performance and for an alternative relief of recovery of an advance amount of Rs.9,000/- with interest, is the appellant before this Court.
The appellant would submit that the suit property belonged to one Sarkar, the husband of the 1st respondent and the father of the respondents 2 to 4 herein, by virtue of the sale Deed dated 07.09.1982. Under an agreement of Sale, dated 12.11.1997, the said Sarkar agreed to sell the same to the Appellant for a total sale consideration of a sum of Rs.11,000/- and on the date of the agreement, he had received a sum of Rs.9,000/- as advance. The balance amount of Rs.2,000/- was to be paid within a period of one year, on receipt of which, the said Sarkar had undertaken to execute the Sale Deed. It is the case of the Appellant that possession of the suit property was handed over
to him on the date of agreement itself. He would contend that he is in possession of the suit property by putting up a hut and using it as a kitchen and for residential purposes. His wife's property is situate to the southern side of the suit property where the Appellant resides with his family. The Appellant would submit that he was all along ready and willing to execute the Sale Deed. However, Sarkar was postponing the execution of the Sale Deed under one pretext or the other. Sarkar died a few months prior to the institution of the suit and the legal heirs did not come forward to execute the Sale Deed. Therefore, the Appellant was constrained to issue a legal notice dated 25.07.2000 which was returned unserved. Thereafter, the respondents have attempted to disturb the Appellant's possession and enjoyment of the suit property on 16.05.2000 which was successfully prevented. Once again on 07.06.2000, an attempt was made. Therefore, the Appellant has come forward with the suit in question.
also lends credence to the contention of the respondents that the agreement is a fabricated one. The Courts below have been prompted to believe the contentions of the respondents/defendants that the agreement of sale was a fabricated one by reason of the fact that, the words “handed over possession” (c';fs; RthjPdj;jpy; tpl;Ltpl;nld; ) appears to be an interpolation. The style of writing and the Ink used are different. P.W.3 has also accepted the same. The Courts below found that this addition has not been countersigned by late Sarkar. Therefore, the Courts below have come to the conclusion that the very agreement of sale has been fabricated by the Appellant and therefore, the suit for specific performance had been dismissed and the alternative relief was also not granted. The Courts below having appreciated the evidence on record properly, this court sitting in Second Appeal cannot re-appreciate the evidence on record. I do not find any substantial question of law warranting interference of this court to the concurrent Judgment and Decree of the Courts below. The Second Appeal stands dismissed accordingly. No costs. Consequently, connected miscellaneous petition is closed.
Sd/-
Assistant Registrar(CCC)
//True Copy//
Sub Assistant Registrar
vum
To
+1CC to Mr.S.Saravanan, Advocate, Sr.No.33720
S.A.No.268 of 2008 and M.P.No.1 of 2008
PL (CO)
K.RK. (19.11.2021)
3 issues framed by the court
Whether the Courts below correctly concluded that the agreement of sale was fabricated due to lack of readiness and willingness and interpolation in the record.
Whether this Court can re-appreciate evidence in a Second Appeal.
Whether entitlement to alternative relief for refund of advance amount exists.
Colour shows how this judgement treated each authority
M/s. Hindustan Construction Co. Ltd. Vs. Union of IndiaReferred¶24
CDJ 1966 SC 281
K.Nanjappa (Dead) by Lrs. Vs. R.A.Hameed Alias Ameersab (Dead) by Lrs.Referred¶24
CDJ 2015 SC 686
1 provisions across 1 enactments
Govindasamy
Pushpa
Selvi
Vijaya
Murugesan
P.T. ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P.T. ASHA
Parties & counsel
