K.M.Mohideen Pitchai (Died) Vs K.M.Mohamed Abubacker(Died) — Specific Performance | Madras HC (2025)

K.M.Mohideen Pitchai (Died) Vs K.M.Mohamed Abubacker(Died) — Specific Performance | Madras HC (2025)

S.A.No.442 of 2003

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on	06.01.2025
Pronounced on	29.01.2025

CORAM

THE HON'BLE MR.JUSTICE V.SIVAGNANAM

Second Appeal No.442 of 2003

K.M.Mohideen Pitchai (died)

2.Mohideen Pathu

3.Jamila

4.Sheik Hussain Beevi

5.Fathimal

6.Vavammal Beevi

... Plaintiffs

-vs-

1.K.M.Mohamed Abubacker (died)

2.K.S.Ismail 3.K.A.Mohammad Ismal 4.K.A.Sahul Hameed 5.K.S.Syed Ali Fathima

(RR3 to 5 are brought on record as LRs of deceased R1 vide order dated 19.11.2019 in CMP(MD)No.4029/2019)

6.Mohammed Adam

(AA2 to 6 & R6 are brought on record as LRs of the deceased sole plaintiff vide Court order dated 05.10.2021 made in CMP(MD)No.8192 and 8196/2021)

..Defendants

https://www.mhc.tn.gov.in/judis

1/24

S.A.No.442 of 2003

PRAYER

PRAYER : Second Appeal filed under Section 100 Code of Civil Procedure, against the Judgment and Decree made in A.S.No.48 of 1999 dated 05.07.2000 on the file of the Additional Subordinate Court, Tenkasi confirming the Judgment and Decree made in O.S.No.22 of 1998 dated 26.02.1999 on the file of the District Munsif Court, Shencottah.

For Plaintiffs ... Mr.T.S.R.Venkataramana Senior Counsel for M/s N.Shylappakalyan For Defendants ... Mr.Mohammed Ibrahim Saibu for M/s Ajmal Associates (for R2 to R5) Ms.V.Janaki Devi (for R6)

JUDGMENT

The Second Appeal has been filed against the Judgment and Decree passed in A.S.No.48 of 1999 dated 05.07.2000 on the file of the Additional Sub-Court, Tenkasi confirming the Judgment and Decree passed in O.S.No.22 of 1998 dated 26.02.1999 on the file of the District Munsif, Shencottah.

https://www.mhc.tn.gov.in/judis

2/24

S.A.No.442 of 2003

For the sake of convenience, the parties are referred to as per their ranking in the Trial Court.

The plaintiff in O.S.No.22 of 1998 on the file of the District Munsif Court, Senkottai, is the plaintiff herein.

This Second Appeal has come forward for re-hearing in view of the order of the Honourable Supreme Court in S.L.P(C)No.2654 of 2009 dated 08.03.2010.

The case of the plaintiff is that the suit property belongs to the first defendant by means of registered gift deed dated 07.12.1977. Since the first defendant was making arrangements to go to foreign countries for employment for which he needed money, he agreed to sell the suit property to the plaintiff for a sum of Rs.1800/- and received the said amount from the plaintiff in January 1982. In pursuance of the oral agreement of sale, the 1^st defendant entrusted the possession of the property to the plaintiff and he also handed over the title deed of the property namely, the gift deed dated 07.12.1977 to the plaintiff. The first defendant also agreed to execute the sale deed and register the same

https://www.mhc.tn.gov.in/judis

3/24

S.A.No.442 of 2003

when the plaintiff is demanded. As the possession of the property was handed over and considering the relationship with the first defendant, the plaintiff also agreed to the above said arrangement. The plaintiff has leased the suit property as well as a portion to Kadar Ammal Beevi to run a Saw Mill. He also obtained patta for the suit property. In spite of repeated demands by the plaintiff for the execution of sale deed, the first defendant has been delaying the execution of the sale deed. Both the defendants have connived together and decided to create some documents to defraud the plaintiff. On 27.12.1993, the plaintiff issued a notice to both the defendants demanding execution of sale deed and required the 2^nd defendant not to enter in any transaction with the first defendant in respect of the suit property. On 08.01.1994, both the defendant issued reply notice containing false allegations. After the reply notice, it appears that the 1^st defendant has executed the sale deed in favour of the 2^nd defendant regarding the suit property. Hence, the suit is for specific performance of contract, for permanent injunction and for costs as well.

The defendants contested the suit and filed the written statement, wherein, it is stated that the suit is not maintainable in law and 4/24

https://www.mhc.tn.gov.in/judis

S.A.No.442 of 2003

on facts. It is false to allege that the first defendant requested the plaintiff to get his property for sale consideration for Rs.1,800/- in January 1982 for which, he agreed to execute sale deed, when he returned to India; that the 1^st defendant handed over the gift deed to the plaintiff and that the possession of the suit property was also delivered to the plaintiff. The plaintiff is the 1^st defendant's father's sister’s son. Since the 1^st defendant had to go abroad for employment, he asked the plaintiff to supervise his property. As the plaintiff had not cared properly, the 1^st defendant asked him to leave the property in the year 1990. Taking advantage of the absence of the 1^st defendant in India, the plaintiff stealthily removed the records from the house of the 1^st defendant. When the 1^st defendant was in abroad, the plaintiff wrote letters to him requesting him to sell the suit property to him for which the 1st defendant replied stating that if he was to sell the property he would sell the same to the plaintiff alone. The 1st defendant did not go to foreign country in January 1982 but only in May 1983, he left for other countries. In 1982, the market value of the property was Rs.20,000/- and presently it is worth about Rs.40,000/-. Since the plaint is bereft of the particulars with regard to sale agreement, it would show the ulterior motive on the part of the plaintiff. After 1983, the 1st defendant came to 5/24

https://www.mhc.tn.gov.in/judis

S.A.No.442 of 2003

India on several occasions during 1985, 1987 and in 1993. For a long time the plaintiff had not taken any steps to get execution of the sale deed. Mapillai Kani and Chokkaiya Devar are close friends of the plaintiff. By misrepresentation, the plaintiff has obtained patta. It is not true to state that the plaintiff has leased out the property to Kadar Ammal Beevi to run saw mill. Her husband has encroached the 1st defendant's property admeasuring East West 10 feet and North South 12 feet and has put up a thatched roof. The plaintiff had issued pre-suit notice with the false allegations. The reply with true state of affairs has been sent. The 1st defendant has executed the sale deed with respect to the suit property

in favour of 2^nd defendant on 07.01.1994 and the plaintiff is not in possession of the suit property. The suit is barred by limitation costs and liable to be dismissed with costs.

On the basis of the above said pleas set out by the respective parties, the following issues were framed by the Trial Court for consideration:

What are the reliefs that the plaintiff is entitled to?

Whether the 2^nd defendant has purchased and is in enjoyment of the suit schedule property?

https://www.mhc.tn.gov.in/judis

6/24

S.A.No.442 of 2003

Whether the sale agreement is fraud?

Whether the suit is barred by limitation?

Before the Trial Court, on the side of the plaintiff, the plaintiff himself examined as P.W.1 and examined two witnesses as P.W.2 and P.W.3 and marked 8 documents as Ex.A1 to Ex.A8. On the side of the defendants, the defendants 1 and 2 have been examined as D.W.1 and D.W.2 and marked 10 documents as Ex.B1 to Ex.B10.

On consideration of the oral and documentary evidence adduced

by the respective parties and the submission made, the Trial Court dismissed the suit. Aggrieved over the same, the plaintiff has preferred an appeal in A.S.No.48 of 1999 before the Additional Sub Court, Tenkasi. The First Appellate Court, upon consideration of evidence on record, dismissed the appeal by confirming the judgment and decree passed by the Trial Court. Challenging the same, the plaintiff has filed the present second appeal.

While admitting the second appeal, this Court has formulated the following substantial questions of law:-

https://www.mhc.tn.gov.in/judis

7/24

S.A.No.442 of 2003

a) Whether the Courts below are right in dismissing the

suit notwithstanding part performance of the contract of sale between the parties?

b) Whether the Courts below are right in rejecting Ex.A2 and A3 executed by the first defendant referring the sale transaction holding it relates to some other property, while admittedly the defendant did not prove that the reference of the property in Exs.A2 and A3 are related to some other property especially when there is no other transactions between the parties pleaded by the first defendant?

c) Whether the Courts below are right in dismissing the

suit notwithstanding the plaintiff/appellant had performed the contract on his part by paying entire sale consideration even in January, 1982?

d) Whether the Courts below are right in rejecting Ex.A4

the patta granted in favour of the plaintiff in the schedule

https://www.mhc.tn.gov.in/judis

8/24

S.A.No.442 of 2003

mentioned property recognizing his possession of the suit property?

11.This Court, by its Judgment dated 28.05.2008 allowed the second appeal. Aggrieved over the same, the defendants preferred SLP(C)No.2654 of 2009. The Hon'ble Supreme Court, by its Judgment dated 08.03.2010, remanded the matter on the ground that this Court has not answered the substantial questions of law and directed to answer the substantial questions of law.

12.The learned Senior Counsel appearing for the

appellants/plaintiff submitted that the title deed (Ex.A1) relating to the suit property is with the plaintiff. The plaintiff was put in possession of the suit schedule property. The defendant did write Ex.A2 & A3 letters dated 30.10.1984 and 17.08.1985 admitting the sale of a property to the plaintiff. The defendant admits possession of the portion of a property by one Kadhar Ammal Beevi who according to the plaintiff took lease of the property. Patta is in the name of the plaintiff. The 2^nd defendant is not a bona fide purchaser for value. He further submitted that in defence, the defendant who could not deny these facts attempted to give strange reasons for these. Unfortunately, the Courts below played into the hands

https://www.mhc.tn.gov.in/judis

9/24

S.A.No.442 of 2003

of the defendant but this High Court reasoned how the explanation of the

defendant is false and unacceptable. They are answered one by one:

a) Defendant alleges that he came to know about the missing of Ex.A1 in 1994. This is false because even in Ex.A7 notice dated 27.12.1993, the plaintiff claim that Ex.A1 is with him and the suit was filed on 18.01.1994. So obviously, the defendant could not deny the factum of Ex.A1 with the plaintiff and invents a false story. He came to India after the oral sale on many occasions but he did not bother to look for the original of Ex.A1 because he knew it is with the plaintiff.

b) Further, PW3 admitted the oral sale agreement and that it was agreed before him and that he was party to the transfer of sale consideration. The defendant wanted to brush aside this evidence of PW3 simply saying that PW3 is a friend of the plaintiff. This cannot be accepted because no one will enter into a deal with a enemy. Here PW3 is a local and relative of both the parties. So there is no reason to disbelieve him and there is no effective cross examination to discredit it. The High Court has correctly come to the conclusion to disbelieve his testimony. This Hon'ble Court can exercise its power under Section 103 of the Code of Civil Procedure.

https://www.mhc.tn.gov.in/judis

10/24

S.A.No.442 of 2003

c) Regarding the possession of Kadar Ammal Beevi, she is a tenant of the plaintiff/plaintiff and the same is also admitted by PW3.

13.The learned Senior Counsel for the appellants/plaintiff further submitted that in para 9 of the Judgment, this Court, has elaborately discussed about Ex.A2 and A2 letters. In both the letters, the first defendant has categorically stated that he would sell the property to the plaintiff. Hence, it is to be observed that both Ex.A2 and A3 are related only to the suit property. He further submitted that admittedly, the plaintiff has paid the consideration and is in possession of the suit schedule property and it proves that there is a part performance of contract and hence, the courts below are not right in dismissing the suit for specific performance. He further submitted that as Ex.A2 and A3 letters which is admittedly written by the first defendant to the plaintiff, is for the suit item, as he did not specifically plead that it is for some other property, it is a settled law that mere allegations are not proof and has to be specifically pleaded and denied. As there is written letter over oral allegation, this question of law has to be answered in the affirmative. As the plaintiff/appellant is in possession and performed his part of the

https://www.mhc.tn.gov.in/judis

11/24

S.A.No.442 of 2003

contract, has not only paid the agreed consideration but also the enhanced consideration as ordered by this Court in its judgment and decree dated 28.05.2008, this question of law has to be answered in the affirmative. Hence, the learned counsel prayed to allow this second appeal.

The learned counsel appearing for the respondent/defendants supported the judgment and decree of the Trial Court as well as the First Appellate Court. Further, he contended that the alleged oral sale agreement is not proved by the plaintiff and the possession was also not given to the plaintiff. The alleged patta was obtained behind the back of the defendants and the alleged sale consideration is also false. The property was sold to the second defendant on 07.01.1994 which is evidenced as Ex.B8. Under these circumstances, the Trial Court and the First Appellate Court, after well considering the evidence on record, dismissed the suit and no ground for interference and pleaded to dismiss the second appeal.

https://www.mhc.tn.gov.in/judis

12/24

S.A.No.442 of 2003

I have considered the matter in the light of the submissions made by the learned counsel on both sides and perused the materials available on records carefully.

16.On perusal of the records, it is revealed that the suit property belong to the first defendant by means of a registered gift deed dated 07.12.1977, which is evidenced by Ex.A1 settlement deed dated 07.12.1977. This fact is admitted by both the parties.

17.According to the plaintiff, the first defendant was making arrangements to go to foreign countries for employment, for which he needed money, he agreed to sell the suit property to the plaintiff for a sum of Rs.1800/- and received the said amount from the appellant/plaintiff in January 1982. In pursuance of the oral agreement of sale, the first defendant entrusted the possession of the property to the appellant/plaintiff and also handed over the title deed of the property namely, the gift deed dated 07.12.1977 to the appellant/plaintiff and also agreed to execute the sale deed and register the same when the appellant /plaintiff demanded. However, he executed the sale deed in favour of the second defendant on 07.01.1994, which is evidenced by

https://www.mhc.tn.gov.in/judis

13/24

S.A.No.442 of 2003

Ex.B8, after receiving the notice from the plaintiff dated 27.12.1993, which is evidenced by Ex.A7. This contention is not accepted by the Trial Court as well as the First Appellate Court in view of the bank passbook accounts of the defendants, which is evidenced by Ex.B6.

18.On perusal of Ex.B6 bank passbook account of the defendant, it

is noticed that in his account, in the month of July 1982, there was a sum of Rs.3,047.85 in his account and January 1983, there was a sum of Rs. 10,000/-. Under these circumstances, there is no need to get Rs.1,800/from the plaintiff for the purpose of going to abroad. This fact is discussed in para 10 of the Trial Court Judgment. For better appreciation, it is reproduced hereunder:-

“10.NkYk; gp.rh.1 jug;gpy; gp.rh.1 tq;fpf;fzf;F gp.rh.M.6d;%yk; 1982-y; gp.rh.1d;fzf;fpy; [_iy khjj;jpy; &.3>047.85

fhf ,Ue;Js;sJ vd;gijAk;> 1983 [dtupapy; &. 10>006.65 ,Ue;Js;sJ vd;gijAk; ghu;f;Fk;NghJ> ntspehL nry;y jgrpy; nrhj;ij fpiuak;Ngrp &.1>800ngw;wjhf th.rh.1 $Wk; $w;W Vw;Wf;nfhs;sj;jf;fjpy;iy. cz;ikapy; th.rh.1

$WtJNghy;> nrhj;ij fpiuak;Ngrp Kd;gzkhf fpiuaj;njhifapy; U.1800/nfhLj;J ,Ug;NghNkahdhy> gp.rh.1 ntspehL nrd;W

https://www.mhc.tn.gov.in/judis

14/24

S.A.No.442 of 2003

1985Yk;> 1987Yk; gpd; 1990Yk; ,Ue;J te;j NghJ fpiuak; vOjptpl;L Nfl;L tw;GWj;jtpy;iynad th.rh. 1 xg;Gf;nfhs;Sk;gl;rj;jpy;> Nkw;gbahf th.rh.1 $Wk; $w;W Vw;Wf;nfhs;s ,ayhJ. Vnddpy; th.rh.1 $Wtijg;Nghy; nrhj;jpd; mDgtk; ,Ue;jpUf;FNkahdhy; th.rh.1 $Wtij ek;gyhk;. nrhj;jpd; mDgtk; 1982 Kjy; th.rh.1 tplk; ,Ue;jJ vd;gjw;F ek;gj;jFe;j NghJkhd Mjhuq;fNs ,y;yhj epiyapy; Nkw;gb th.rh.1d; fUj;J Vw;Wf;nfhs;sj; jf;fjpy;iy. th.rh.1 $Wtijg;Nghy; jgrpy; nrhj;ij fpiuak; nra;J nfhLf;fNtz;ba mtrpak; gp.rh.1f;F 1982y; fpilahJ vdTk; KbT nra;fpNwd;.”

19.The First Appellate Court also accepted the evidence.

20.The plaintiff relied upon the alleged letter written by the

defendant, which is evidenced as Exs.A2 and A3. According to the plaintiff, in the letter (Exs.A2 and A3), the defendant agreed to sell the plaint schedule property and assured to execute the sale deed. This letter is also rejected by the Trial Court and the same was also confirmed by the First Appellate Court.

https://www.mhc.tn.gov.in/judis

15/24

S.A.No.442 of 2003

21.On perusal of Ex.A2 letter dated 30.11.1984 and Ex.A3 letter dated 17.08.1985, it is noticed that there is no specific averments that the defendant agreed to sell the plaint schedule property to the plaintiff. This is discussed by the Trial Court in its judgment in para 8. For better appreciation, it is reproduced hereunder:-

“8.,e;j tof;fpy; Kjypy;

jPu ; khzpf;fNtz;bait> thjp $WtJNghy; thjpf;Fk;. 1-k; gpujpthjpf;Fk; jgrpy; nrhj;J nghWj;J fpiua xg;ge;jk; Vw;gl;Ls;sjh vd;gjhFk;. ,t;tof;fpy; thjp th.rh.1.Mf tprhupf;fg;gl;lhu;. th.rh.1 jd; rhl;rpaj;jpy;> jgrpy; fpiuaj;njhif &.1>800- vd$Wfpwhu;. 1k; gpujpthjp jug;gpy; 1982-y; jgrpy; nrhj;jpd; kjpg;G &.20>000-k; ,Uf;Fk; vd $wg;gl;lJ. th.rh.1d; tof;Fiuapy; Nkw;gb tha;nkhop fpiua xg;ge;jk; Vw;gl;l tpguk; khg;gpisf;fdp kw;Wk; nrhf;ifahj;Njtu; Mfpatu;fSf;F njupAk; vd$Wfpwhu;. jgrpy; nrhj;Jf;F fPo;Gwk; cs;s th.rh.2y; nrhj;jpid Nru;j;J jgrpy; nrhj;ij mDgtpj;J tUfpwhu;. fhju; mk;khs; gPtpf;F thliff;F tpl;Ls;sjhfTk; $Wfpwhu;. jhth ,lj;jpw;F fPo;GwKs;s nrhj;J fjT vz; 4 nrhe;j tPL cs;sJ vd;Wk;> Nkw;gb tPl;il fhju; mk;khs; gPtf;Fs thliff;F tpl;Ls;sjhf th.rh.1$Wfpwhu;. thjp jug;gpy; fhju; mk;khs; gPtpapd; fztu; th.rh.2 Mf tprhupf;fg;gl;lhu;. th.rh.2 rhl;rpaj;jpy;>

https://www.mhc.tn.gov.in/judis

16/24

S.A.No.442 of 2003

jhth ,lj;ijAk; mjw;F fPo;Gwk; cs;s th.rh. 1d; ,lj;ijAk; Nru;j;J thliff;F vLj;J cs;sjhfTk;> 1986 Kjy; thlifia thjpf;F nfhLj;J tUtjhfTk; $Wfpwhu;. ,t;tof;fpy; 1k; gpujpthjp gp.rh.1Mf tprhupf;fg;gl;lhu;. gp.rh.1 vjpu;tof;Fiuapy; jhth ,lj;jpy; msT fpoNky; Rkhu; 10 mb> njd;tly; Rkhu; 20 mb Mf;fpukpj;J fpLF fl;b cs;sjhf $Wtij th.rh.2 rhl;rpaj;jpy; xg;Gf;nfhs;fpwhu;. th.rh.2 jhth nrhj;Jld; fPo;Gwk; cs;s nrhj;ijAk; thliff;F mDgtpj;J tUfpwhu; vd;gjw;F NghJkhd rhl;rpak; ,y;iy. ,t;tof;fpy; tha;nkhop fpiuak; NgrpaNghJ cld; ,Ue;jjhf $Wk; khg;gps;isf;fdp th.rh.3 Mf tprhupf;fg;gl;lhu;. th.rh.3 jd; rhl;rpaj;jpy;> gp.rh. 1f;F jhth nrhj;ij fpiuak; nfhLf;f xg;Gf;nfhz;ljhfTk;> 1>800f;F fpiuak; Ngrp fpiua Kd; gzkhf Nkw;gb njhifia nfhLj;jjhfTk;> fpiuak; 01-01-82 Njjpapy; Ngrg;gl;ljhfTk; $Wfpwhu;. Mdhy;> rh.rh.1 rhl;rpaj;jpy; 01-01-82 Njjpapy; fpiuak; Ngrg;gl;l tpguj;ij tof;Fiuapd;NghJk;> rhl;rpaj;jpd;NghJk; Fwpg;gpl;L nrhy;ytpy;iy tof;fpw;F Kd;G th.rh.1 nfhLj;j mwptpg;ghd th.rh.M.7Yk; Nkw;gb fpiua xg;ge;j Njjp Fwpg;gpl;Lr; nrhy;ytpy;iy. th.rh.1 rhl;rpaj;jpy; fpiua xg;ge;jk; Vw;gl;lJ vd;gij Nkw;gb nrhj;Jf;fSila ed;nfhilg; gj;jpuk; ,Ug;gij gp.rh.1

https://www.mhc.tn.gov.in/judis 17/24

S.A.No.442 of 2003

ntspehl;by; ,Uf;Fk;NghJ> th.rh.1> gp.rh.1f;F vOjpa ,uz;L fbjq;fis itj;J fpiua xg;ge;jk; Vw;gl;ljhf $Wfpwhu;. th.rh.M.2-I 30.11.1984y; gp.rh.1 vOjp cs;shu;. mjpy;. “jhq;fs; kidf;F je;j&ghia jq;fs; trk; nfhLf;fr;nrhy;ytpy;iy" vd;Wk ; th.rh.M3y; 17.08.1989-y; gp.rh.M.1 “jq;fSf;F kid vOjp jhtpy;iy vdkdk; tUe;jNtz;lhk;. me;j kid ve;j ehSk;+ cq;fs; kidjhd;” vd;Wk; Fwpg;gpl;L vOjpAs;sJ> jgrpy; nrhj;ij Fwpf;Fk; vdTk; $Wfpwhu;. Mdhy; Nkw;gb fpiua xg;ge;j NjjpKjy; jgrpy; nrhj;ijj; njhlh;e;J th.rh.1 mDgtpj;J te;jhh; vd;gjw;F NghJkhd Mjhuk; ,y;iy. Vnddpy;> th.rh.1 jug;gpy; jhf;fy; nra;ag;gl;l th.rh.M.4 Md gl;lh 12.12.1991 Njjpapy; nfhLf;fg;gl;Ls;sJ. Nkw;gb gl;lh nrhj;jpd; mDgtj;ij fhl;lf;$ba Mtzk; my;y. th.rh.1 jug;gpy; th.rh.M.5> th.rh.M.6 thpir jhth nrhj;jpw;F fPo;GwKk; fjTvz; 4V fl;blj;jpw;F nrYj;jpa tPl;Lthp ,urPJfs; MFk;. me;epiyapy; jgrpy; nrhj;jpd; fpiuak; xg;ge;jjpw;F gpwF th.rh.1 mDgtpj;J njhlh;e;J ,Ue;J te;jjw;F MjhuG+h;tkhf Mtzq;fs; ,y;iy. th.rh.2 rhl;rpj;jpy; jhth ,lj;jpy; 10 x 20 mb msTs;s ,lk; kl;LNk Mf;fpukpf;fg;gl;L mDgtj;jpy; ,Ue;J tUfpwJ vd;Wk;> th.rh.M.1d; gb jgrpy; nrhj;J

https://www.mhc.tn.gov.in/judis

18/24

S.A.No.442 of 2003

2-3/8 nrz;l vd;gJk; xg;Gf;nfhz;Ls;s epiyapy; jgrpy; nrhj;J KOtJk; fpiua xg;ge;jj;jpd;gb th.rh.1y; mDgtj;jpy; ,y;iy vd;gJk; th.rh.2 d; rhl;rpak; njspTgLj;JfpwJ.

22.In a suit for specific performance, the evidence and proof of the agreement must be absolutely clear and certain. A greater degree of certainty is required in the terms of an agreement that is to be specifically enforced than is necessary in a contract which is to be the basis of an action at law for damages. Noting with approval the principles set out in Pomeroy on Specific Performance of Contracts, Halsbury's Laws of England and Fry on Specific Performance as also the decision of the Calcutta High Court in Gonesh Ram vs. Ganpat Rai (AIR 1924 Cal 461) it was held that while normally it is permissible to grant relief on the basis of what emerges from the evidence-even if not pleaded provided no prejudice is caused to the other side, such a principle is inapplicable in suits relating to specific performance. The special rule applicable to suits for specific performance requires the plaintiff to plead and prove the agreement which is sought to be specifically enforced.

https://www.mhc.tn.gov.in/judis

19/24

S.A.No.442 of 2003

23.In this case, the agreement propounded is oral.

24.Therefore, the evidence produced must be cogent. But, the plaintiff fails in this regard.

25.Though an oral agreement itself can be specifically enforced,

however, to claim the benefit of part performance as per section 53A of the Transfer of Property Act, one of the requirements is that the contract should be in writing and signed by the transferor.

26.In this case, the agreement propounded is oral as stated supra.

Therefore, the alleged claim of possession by the plaintiff will not helpful to him. In this case, the possession of the plaintiff is also denied by the defendant.

27.Further, in this case, the alleged payment of sale consideration of Rs.1800/- by the plaintiff is not supported by any receipts and other

evidences. Only oral evidence is projected. The Trial Court found that no sufficient ground to grant the relief of specific performance.

https://www.mhc.tn.gov.in/judis

20/24

S.A.No.442 of 2003

28.In the second appeal, the concurrent finding of fact is assigned by the plaintiff. It is noticed that the finding is recorded based upon the pleading and based on evidence. There is no misleading of material documentary evidence. It is recorded in accordance with the provisions of law. The conclusion is reasonably reached by the Trial Court and the First Appellate Court.

29.The plaintiff failed to prove that he has paid sale consideration and he is in possession of the suit schedule property and failed to prove that there is a part performance of contract. Therefore, the Courts below are right in dismissing the suit. The substantial question of law is answered accordingly.

30.With regard to rejecting the document Ex.A2 and A3, the Trial Court discussed the reason for rejecting the documents Ex.A2 and A3 in para 8, which was also confirmed by the First Appellate Court. Admittedly, the plaintiff did not prove the oral agreement and did not prove the payment of sale consideration by evidencing any receipt for payment. Under these circumstances, he has to prove that the document

21/24

https://www.mhc.tn.gov.in/judis

S.A.No.442 of 2003

Ex.A2 and A3 are concerned about the sale transaction of the suit schedule property. Therefore, the Courts below are right in rejecting the document Ex.A2 and A3. The second substantial question of law is answered accordingly.

31.Since the plaintiff failed to prove the oral agreement and payment of sale consideration and possession was handed over to him in the year January 1982, the Courts below are right in dismissing the suit and disbelieved the plaintiff's contention of oral sale agreement and payment of sale consideration and possession was given to him. The alleged patta in Ex.A4 would not prove his possession. Thus, third and fourth substantial question of law are answered accordingly. Therefore, the second appeal fails and the same is liable to be dismissed.

32.In the result, the Second Appeal is dismissed. No costs.

29.01.2025

NCC : Yes/No Index : Yes/No Internet: Yes skn To:

https://www.mhc.tn.gov.in/judis

22/24

S.A.No.442 of 2003

1.The Additional Subordinate Court, Tenkasi. 2.The District Munsif Court, Shencottah.

3.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

V.SIVAGNANAM, J.

skn

Judgment made in Second Appeal No.442 of 2003

https://www.mhc.tn.gov.in/judis

23/24

S.A.No.442 of 2003

29.01.2025.

https://www.mhc.tn.gov.in/judis

24/24