Madras High Court
Mumtaj Begam (Died) vs Mariappan on 17 November, 2021
Author: A.A.Nakkiran
Bench: A.A.Nakkiran
SA(MD).No.420 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 12.07.2021
PRONOUNCED ON : 17 .11.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
SA(MD).No.420 of 2021
CMP(MD)No.5568 of 2021
(Through Video Conferencing)
1. Mumtaj Begam (died)
2. Hajiral Banu
3. Abdul Rahman
4. Sithik Ali
5. Subaithal Banu Appellants
Vs
1. Mariappan
2. Santha Mariappan
3. Sakthi Mariappan (died)
4. Selvamari
5. Jabar Mohamed Kasim Beer
6. Kanagaraj
7. Suresh Kumar
8. R.Chandrasekar
9. V.Esaakkiammal
10.V.Sabarishwari Respondents
Prayer:- This Second Appeal has been filed, under Section 100 of CPC, against
the judgement and decree, dated, 24.02.2020, passed in AS.No.16 of 2014, by
the Additional Subordinate Judge, Tirunelveli, reversing the judgement and
decree, dated, 20.12.2013, passed in OS.No.673 of 2007, by the Principal
District Munsif, Tirunelveli.
For Appellant : Mr.V.Kannan
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https://www.mhc.tn.gov.in/judis
SA(MD).No.420 of 2021
JUDGEMENT
1. This Second Appeal has been filed, by the Plaintiffs, against the judgement and decree, dated, 24.02.2020, passed in AS.No.16 of 2014, by the Additional Subordinate Judge, Tirunelveli, reversing the judgement and decree, dated, 20.12.2013, passed in OS.No.673 of 2007, by the Principal District Munsif, Tirunelveli.
2. The case of the Plaintiffs, as per their Plaint is that the Defendants 1 to 4 inherited the suit property after the demise of their mother and they had entered into a sale agreement with the father of the Plaintiffs, namely Sahul Hameed, dated 20.10.2003 in respect of the suit property. The Plaintiff came to know about the said sale agreement only when OS.No.73 of 2007 came to be filed for recovery of money of Rs.4,00,000/- from the estate of the said Sahul Hameed, the father of the plaintiffs. The demand made by the Plaintiffs to the Defendants 1 to 4 to perform their part of the contract was not acceded to. The Defendants 1 to 4 attempted to alienate the suit property in 2007. During the pendency of the suit, the suit property was sold by the Defendants 1 to 4 in favour of the Defendants 6 and 7 on 24.04.2008. Hence, the suit had been filed, seeking permanent injunction, restraining the Defendants 1 to 4 from alienating the suit property, in favour of third persons other than the Plaintiffs and for declaration that the sale deed executed by the Defendants 1 to 4 in favour of the Defendants 6 and 7, dated 24.04.2008 is void as lispendens.
2/9 https://www.mhc.tn.gov.in/judis SA(MD).No.420 of 2021
3. The Defendants 1 and 3 had filed a written statement and an additional written statement, contending that they did not know the 5th defendant and he is not a necessary party and that OS.No.73 of 2007 was filed by the 5th Defendant at the instigation of the Plaintiffs and that the suit property was already sold to the Defendants 6 and 7 under the registered sale deed, dated 24.04.2008 by the 3rd Defendant, as the Power Agent of the Defendants 1,2 and 4. The 2nd Defendant died 01.03.2004, prior to filing of the suit. The suit is also barred by limitation. In such circumstances, the suit is liable to be dismissed.
4. The 5th Defendant had also filed a separate written statement, contending that he is not a necessary party to the suit and that he has no objection for granting a decree in favour of Plaintiffs and hence, the suit is to be dismissed as against him, with costs.
5. On the pleadings of the parties, as many as five issues were framed by the Trial Court. On the side of the Plaintiffs, PW.1 was examined and on the side of the Defendants, DW.1 was examined and no document was marked on either side. The Trial Court had decreed the suit and on the appeal, the lower appellate court had allowed the appeal, setting aside the impugned judgement of the Trial Court. Aggrieved against the same, this Second Appeal has been filed.
6. The learned counsel for the Appellant has submitted that when the sale agreement is not denied by the Plaintiffs, the lower appellate court, without properly considering the evidence on record, erred in holding that without 3/9 https://www.mhc.tn.gov.in/judis SA(MD).No.420 of 2021 the seeking the relief of specific performance, when there is no evidence to prove their readiness and willingness to perform their part of the contract, permanent injunction cannot be granted and for such reasons, he would seek for setting aside the impugned judgement of the lower appellate court.
7. This Court heard the submissions of the learned counsel for the Appellants and considered his submissions and also perused the materials available on record. For the sake of convenience, the parties herein after are referred to as they were arrayed in the suit.
8. According to the Plaintiffs, they came to know about the alleged sale agreement, dated 20.10.2003, only when OS.No.73 of 2007 came to be filed by the 5th Defendant against the Plaintiffs, for recovery of money Rs. 4,00,000/- from the estate of their father and during the pendency of the present suit, the suit property was sold under the registered sale deed, dated 24.04.2008 by the Defendants 1 to 4 in favour of the Defendants 6 and 7 and hence, the said sale deed is hit by the principles of lispendens.
9. Per contra, it is the case of the contesting Defendants that the alleged agreement of sale itself will not create any right or interest on the Plaintiffs Plaintiff and the suit property was sold to the Defendants 6 and 7 for valid consideration under the registered sale deed and the suit is also barred by limitation and also the suit is not maintainable for non joinder of necessary parties.
10.Before the Trial Court, no document was filed on either side. Admittedly, the suit property belonged to the Defendants 1 to 4 by way of inheritance. The 4/9 https://www.mhc.tn.gov.in/judis SA(MD).No.420 of 2021 alleged sale agreement is of the year 2003. The present suit is of the year 2007. Only when the Plaintiffs came to know about the said sale agreement at the time of filing of another suit against them in 2007, the Plaintiffs stated that they were ready and willing to perform their part of the sale agreement in 2007 and even to prove such a readiness and willingness at a very much belated time, there is no document produced by the Plaintiffs. When the Plaintiffs base their claim on the basis of the alleged sale agreement, the Plaintiffs did not produce even a copy of the said sale agreement to prove their case and also did not seek the relief of specific performance.
11.It is well settled proposition of law that a sale agreement will not create any title, right or interest on a person, in whose favour the sale agreement was created and he acquires absolute title when such an sale is completed in all respects. In this case, the agreement is of the year 2003 and the suit was filed in the year 2007.
12.The alleged sale agreement created, in favour of the father of the Plaintiffs, will not create any title on the Plaintiffs in respect of suit property. Further, without seeking the relief of specific performance of the sale agreement and when there being no evidence to prove their readiness and willingness to perform their part of the contract and when the suit property itself was sold to the Defendants 6 and 7, permanent injunction as sought for, cannot be granted, that too, when is no averment in the plaint to the effect that the Plaintiffs are in possession of the suit property.
13. As stated above, it is also not in dispute that during the pendency of the 5/9 https://www.mhc.tn.gov.in/judis SA(MD).No.420 of 2021 suit, the suit property was sold under the sale deed, dated 24.04.2008 in favour of the Defendants 6 and 7. The Plaintiffs also seek for declaration of the alleged sale deed as void on the principles of lispendens. Further, the suit, as filed without impleading the legal heirs of the 2nd defendant, is not maintainable. In view of the fact that the alleged sale agreement will not create any right or interest in respect of the suit property on the Plaintiffs, the alleged sale deed is not affected by the principles of lispendens and consequently, the relief of declaration of the alleged sale deed as null and void cannot also be granted.
14.The relief of injunction is a discretionary relief is well settled. A party, seeking injunction, must possess some right, which the opposite party is trying to invade or to commit breach. These principles clearly emerge out of Section 38 of the Specific Relief Act, which deals with under what circumstances the Court may grant the discretionary relief of injunction. But, in the instant case, none of these circumstances are in existence for granting the relief of injunction in favour of the Plaintiffs, more particularly, when the Plaintiffs are estopped from claiming right over the suit property based on the alleged sale agreement. Moreover, as held by the lower appellate court that the Plaintiffs failed to prove that they are ready and willing to perform their part of the contract, before seeking the discretionary relief of injunction and also failed to prove the breach of contract by the Defendants 1 to 4.
15.It is also well settled that a suit for permanent injunction, without seeking the relief of specific performance of the sale, is barred under Order 2 Rule 2 of 6/9 https://www.mhc.tn.gov.in/judis SA(MD).No.420 of 2021 CPC, which provides in respect of “Relinquishment of part of claim” that where a Plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished, in view of the fact that the relief of injunction is an equitable relief and the same cannot be granted, when the Plaintiffs have not established their readiness and willingness to perform their part of the contract and failed to seek the relief of specific performance of the sale agreement. Hence, the the suit itself is not maintainable for the sole reason that the Plaintiffs have not sought for the relief of specific performance of the alleged sale agreement.
16.Considering the above propositions and reasonings, in a proper and perspective manner, the lower appellate court was right in dismissing the suit, by the impugned judgement, which warrants no interference by this Court. But, the Trial Court, without marking any document on either side, in the absence of proof of possession, readiness and willingness on the part of the Plaintiffs, has erroneously decreed the suit, by the impugned judgement, which is necessarily to be interfered with.
17.Further, the present Second Appeal does not give rise to any substantial question of law and the ones raised are inference of facts or findings of facts, arising from the pleadings. On the day when a Second Appeal is listed for hearing on admission, if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the Second Appeal, without even formulating a substantial question of law. The principle laid down by 7/9 https://www.mhc.tn.gov.in/judis SA(MD).No.420 of 2021 Honourable Supreme Court laid down in the case of Kirpa Ram Vs. Surendra Deo Gaur (2020 SCC OnLine SC 935) is that that a Second Appeal can be dismissed at the admission stage itself, without formulating a substantial question of law, if none arises was reiterated. The present case is one such case and therefore, this Second Appeal deserves to be dismissed at the admission stage itself, holding that no substantial question of law arises for consideration.
18.In fine, this Second Appeal is dismissed. No costs. Consequently, the connected MP is closed.
17.11.2021 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm To
1. The Additional Subordinate Judge, Tirunelveli
2. The Principal District Munsif, Tirunelveli.
3. The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai 8/9 https://www.mhc.tn.gov.in/judis SA(MD).No.420 of 2021 A.A.NAKKIRAN, J.
Srcm Pre-Delivery Judgement in SA(MD).No.420 of 2021 17.11.2021 9/9 https://www.mhc.tn.gov.in/judis