Madras High Court
T.S.Govindarajan vs M.Govindarajan on 26 March, 2018
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
Appeal Suit(MD) No.138 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 08.01.2020
Delivered on 29.01.2020
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Appeal Suit(MD) No.138 of 2018
and
Cross Objection(MD).No.22 of 2018
and
CMP.(MD).No.11537 of 2018
Appeal Suit(MD) No.138 of 2018:
T.S.Govindarajan .. Appellant/Plaintiff
Vs.
M.Govindarajan .. Respondent/Defendant
PRAYER: Appeal Suit is filed under Section 96 of the Code of Civil
Procedure, against the judgment and decree, dated 26.03.2018,
made in O.S.No.149 of 2008, by the learned Additional District and
Sessions Judge(PCR), Thanjavur.
For Appellant : Mr.R.Vijayakumar
for Mr.G.Karnan
For Respondent : Mr.S.Srinivasa Raghavan
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http://www.judis.nic.in
Appeal Suit(MD) No.138 of 2018
Cross Objection(MD).No.22 of 2018:
M.Govindharajan .. Cross Objector / Respondent
vs.
T.S.Govindharajan .. Respondent / Appellant
PRAYER: Cross Objection is filed under Order XLI Rule 22 of the
Code of Civil Procedure, against the judgment and decree, dated
26.03.2018, made in O.S.No.149 of 2008, by the learned Additional
District and Sessions Judge (PCR), Thanjavur, insofar as holding
that the respondent is the Othidar under the cross objector.
For Cross Objector : Mr.S.Srinivasa Raghavan
For Respondent : Mr.R.Vijayakumar
for Mr.G.Karnan
JUDGMENT
Aggrieved over the judgment of the trial Court dismissing the suit for specific performance, the present appeal came to be filed. The cross objection has been filed by the defendant challenging the trial Court judgment and decree granting permanent injunction in favour of the plaintiff. 2/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018
2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.
3. The facts leading to the filing of the suit are as follows:
The defendant is the owner of the suit property and has constructed a building, which is said to be incomplete for want of funds. The plaintiff and the defendants are said to be friends. Since the defendant approached the plaintiff for advancement of loan to him, the plaintiff advanced a loan for sum of Rs.1,25,000/- for completion of construction work. According to the plaintiff, the defendant also agreed to treat the above said loan amount, ie., Rs. 1,25,000/-, as an Othi amount to the defendant, in lieu of the said loan, the property to be let into the daughter of the plaintiff by name, Chitra, for her occupation. The plaintiff has paid a sum of Rs. 1,00,000/- to the defendant on 03.11.2004. Thereafter, the plaintiff has paid a sum of Rs.10,000/- on 10.12.2004. Despite the above loan amount, the defendant has not completed the construction of the house and utilised the loan amount for his business. As the building was incomplete, again the defendant has approached the plaintiff for further financial assistance and the plaintiff has given a further sum of Rs.20,000/- for completion of the work. The 3/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 defendant is in lawful possession and enjoyment of the suit property as Othidar from 01.03.2005. As the defendant incurred heavy loss in his business and also he is in need of money to run his business, he has approached the plaintiff to sell the suit property. Accordingly, he has entered into a sale agreement, dated 15.05.2006 and agreed to sell the suit property in exchanging the property of the plaintiff's wife, by name, Sarathambal. The defendant has agreed to receive the balance amount after exchange of the said properties. The plaintiff's wife has paid a sum of Rs.1,00,000/- to the defendant on 15.05.2006. Since both parties could not perform their part of contract as per the agreement, the said agreement was mutually cancelled by the parties. Thereafter, the defendant have entered into a sale agreement on 30.11.2006.
Hence the suit.
4. It is the case of the defendant that since the plaintiff is the family friend to the defendant and also a financier, on 03.11.2004, the defendant borrowed a sum of Rs.1,00,000/- for further construction in the first floor of the building. Besides he has also borrowed a further sum of Rs.10,000/- on 10.12.2004 for the same purpose. The plaintiff has requested the defendant to let out 4/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 the ground floor of the suit property for his daughter's occupation. Since the plaintiff's wife is a handicapped and the plaintiff being the family friend, the defendant has agreed accordingly. The plaintiff's daughter came into possession of the suit property as a tenant from 01.03.2005. The plaintiff has accepted to pay rent of Rs.5000/- per month for the ground floor of the suit property. From April 2005, the defendant stopped paying interest to the plaintiff. Since the plaintiff is a family friend and already helped the defendant financially, the defendant never insisted any amount towards rent from the plaintiff. The plaintiff has not even paid a single pie towards rent, but it was adjusted towards the interest which has to be given by the defendant to the plaintiff. It is submitted that the agreement for exchange of property was entered on 15.05.2006 between the defendant and plaintiff. The defendant had received a sum of Rs.1,00,000/- with the condition that the plaintiff's wife has to settle the house loan amount of Rs.1,90,000/- towards the State Bank of Trivancore, Thanjavur, and the plaintiff's wife agreed to pay the remaining amount of Rs.3,40,000/- to the defendant within 15 days from 30.05.2006. When the defendant came to know that the property belonged to the plaintiff's wife, which has to be exchanged, was only worth 5/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 about Rs.3,00,000/-, the plaintiff's wife accepted to pay Rs.8,40,000/-, in cash, instead of exchanging the house. But she has neither paid any amount nor settled the bank loan within the agreement period. Accordingly, due to the non-performance of the contract by the plaintiff's wife, the exchange agreement stands cancelled. Thereafter, after negotiation, the defendant and the plaintiff entered into the sale agreement on 30.11.2006, in which it was specifically agreed by the plaintiff that he has to settle the house loan of Rs.2,10,000/- towards State Bank of Travancore, Thanjavur within 10 days from the date of execution, otherwise, the agreement stands cancelled automatically. The plaintiff has never come forward either to settle the bank loan or to pay the remaining sale consideration and accordingly, the sale agreement also stands cancelled. In the additional written statements, it is the contention of the defendant that since the plaintiff is not ready to perform the part of contract, he cannot seek the relief of mandatory injunction in respect of the first and second floor, and hence, he prayed for dismissal of the suit.
5. The trial Court has framed the following issues:
“1.Whether the plaintiff is entitled to the relief of 6/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 Specific Performance of Sale Agreement dated 30.11.2008 entered with the defendant?
2.Whether it is true that the plaintiff was not able to complete the sale due to non discharge of loan of defendant with his bank?
3. Whether the defendant can rely upon default clause in Sale Agreement dated 30.11.2006 to cancel the Sale Agreement?
4. To what other relief the plaintiff is entitled to?” The additional issues are as follows:
“1.Whether the plaintiff is entitled to protect his possession under Section 53A of the Transfer of Property Act, as he was put in possession as part performance of the contract or not?
2. Whether the plaintiff is entitled to permanent injunction as prayed for or not?
3.Whether the plaintiff is entitled to recover the possession of 1st floor and 2nd floor of the suit schedule property or not?
4.To what other relief the plaintiff is entitled to?”
6. Based on the above pleadings, on the side of the plaintiff four witnesses were examined as PW.1 to PW.4 and 18 documents were marked as Ex.A1 to A18. On the side of the 7/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 defendants, DW1 was examined and Exs.B1 and B2 were marked.
7. The trial Court though not specifically framed issues with regard to the readiness and willingness, the entire discussion in other issues are with regard to the specific performance and finally, the trial Court has answered issue no.3 in favour of the plaintiff and not granted the relief as far as the specific performance is concerned.
8. The trial Court decided the additional issues as against the plaintiff and held that he is not entitled to protection under Section 53A of the Transfer of Property Act. However, the trial Court decreed the suit for permanent injunction and answered the Additional issues as against the defendant. Aggrieved by the same, the cross objection has been filed by the defendant, challenging the decree of permanent injunction granted by the trial Court.
9. The learned counsel for the appellant/plaintiff would submit that the conduct of the parties is relevant to this case. The plaintiff has advanced the amount in the year 2004 itself for the 8/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 purpose of completing the construction of the building. In pursuant to the amount advanced by the plaintiff, the plaintiff's daughter was put in possession of the ground floor of the property as an Othidar and thereafter, further sums also advanced, for which, the defendant has also agreed to sell the property in exchange of the property of the plaintiff's wife and agreed to receive the balance sale consideration. After estimation of the value of both properties, an agreement came to be executed on 15.05.2006. However, the contract could not be performed by both parties. Thereafter, on 30.11.2006, the defendant agreed to sell the suit property for a total sale consideration of Rs.12,55,500/-. From the above nature of the contract documents, intention of the plaintiff is very clear that he is intended to purchase the suit property. The defendant has also agreed to sell the property. Though the specific terms in the sale agreement-Ex.A4 that the plaintiff has to discharge the housing loan amount of Rs.2,10,000/- within a period of 10 days from the date of agreement. The plaintiff has clearly pleaded and proved that he could not pay the amount since the defendant has availed several loans from the said Bank.
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10. Therefore, it is the contention of the appellant counsel that merely such conditions were stipulated in the agreement that cannot make the time an essence of contract. The defendant has not denied the other loans availed from the Bank and PW.4- Manager of the said Bank was also examined in this regard. Hence, he contended that the trial Court ought to have granted relief of specific performance, since the plaintiff's evidence and conduct shows that he was ready and willingness to perform the contract. Merely because the time is stipulated in the agreement that cannot be the ground to deny the specific performance, whereas the suit has been filed within the period of three years and further his contention is that admittedly, the plaintiff's daughter is in possession of the property and this possession also pursuant to the arrangement and agreement between the parties. The documents filed on the side of the plaintiff clearly show that the plaintiff's daughter is in possession of the property. Therefore, such possession has to be protected. The defendant himself admitted that possession of the plaintiff's daughter. Such being the position, the trial Court judgment granting the permanent injunction not to evict the plaintiff's daughter, except by due process of law does not require any interference. In support of his submissions, he has also 10/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 relied upon the judgment of the Apex Court in the case of R.Lakshmikantham v. Thevaraj, dated 10th July, 2019. Whereas the contention of the learned counsel for the respondent that the agreement clearly stipulates that within 10 days, a sum of Rs.2,10,000/- has to be paid by the plaintiff to the defendant so that the defendant can pay the housing loan. The condition has not been complied and in fact, the recitals further clearly show that the parties agreed that if the balance sale consideration is not paid before February, 2007, the contract shall be rescinded automatically. Further, the parties have agreed to rescind the contract and has also specifically agreed that in the event of the agreement rescinded due to the non-payment of balance sale consideration by the plaintiff, the defendant has to return the advance amount within one month with interest at the rate of 3%. The above recitals makes it clear that the time is stipulated in the agreement is essence of contract. Whereas the trial Court has wrongly appreciated these recitals and held that the time is not an essence to perform the contract.
11. Be that as it may, it is the contention of the counsel that the agreement clearly shows that within 10 days, the plaintiff 11/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 has to pay a sum of Rs.2,10,000/- to the defendant in order to clear the housing loan. But the same has not been done by the plaintiff. Further, he added that the contention of the plaintiff, that when he has gone to the Bank along with PW.2 and came to know about the several other loans availed by the defendant, due to which he could not settle the loan amount, is an afterthought. In fact, the evidence of the PW.4 clearly shows that the housing loan in respect of the suit property has been cleared by the defendant in the month of February, 2008.
12. Hence, the contention of the learned counsel that the plaintiff was not ready and willing to perform the part of contract from the very beginning and the exchange agreement-Ex.A1 clearly indicates that the housing loan has to be paid by the plaintiff's wife, which is also not cleared. Therefore, the above contract was cancelled by both sides. The above aspect makes clear that the plaintiff is not interested to get the sale deed in his favour rather he was interested in protecting the possession of his daughter, who came into possession on the basis of the financial assistance made by the plaintiff. The conduct of the plaintiff itself clearly shows that he was not ready and willing to perform the contract. Hence, it is 12/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 the contention of the learned counsel that the trial Court has rightly rejected the plea of specific performance. It is the further contention that in pursuance of the agreement, the plaintiff was not in possession of the property, only his daughter was in possession. He again contended that the plaintiff's daughter came as a tenant, whereas the plaint pleadings itself clearly indicate that she came into possession as an Othidar (mortgagee). Such being the position, the plaintiff cannot seek permanent injunction to protect the possession of his daughter in the absence of impleading her as a party in the suit. Section 53 A of the Transfer of Property Act, cannot be applied to protect the possession. Though the trial Court has rightly held that Section 53 A of the Transfer of Property Act, cannot be applied, however, granted injunction in favour of the plaintiff. Admittedly, the plaintiff was not in possession of the property, instead, his daughter was in possession. Therefore, in this suit, the decree for permanent injunction cannot be granted and the decree of the trial Court granting injunction is liable to be set aside and the cross objection has to be allowed and the appeal has to be dismissed.
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13. In the light of the above submissions, now the point arises for consideration are,
1. Whether the plaintiff is always ready and willing to perform the part of the contract, dated 30.11.2006?
2. Whether the plaintiff is entitled to permanent injunction in respect of his daughter, who was put in possession not in pursuance of the agreement? and
3. Whether the time is not the essence of contract?”
14. The suit has been laid for specific performance based on the contract, dated 30.11.2006 and subsequently amended for permanent injunction in respect of the first and second floor and also alternate relief of refund of advance amount. It is admitted by both sides that the plaintiff and the defendant are friends for sometime. The case of the plaintiff is that the defendant was in need of funds to construct the incomplete building, ie., the suit property in the year 2004. Accordingly, the plaintiff has agreed to lend a sum of Rs.1,25,000/- to complete the construction of the building in question. It is stated in the plaint that on 03.11.2004, he has advanced a sum of Rs.1,00,000/- and on 10.12.2004, he gave a further sum of Rs.10,000/-. It is specifically pleaded in the plaint 14/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 that Rs.1,25,000/- agreed to be advanced by the plaintiff on Othi basis and the plaintiff's daughter put to be in possession. Normally, if any amount advanced to a building towards 'Othi', the interest of the said amount shall be adjusted towards rent for the possession. It is just like usufructuary mortgage. Be that as it may, it is the case of the plaintiff that despite the above amount of Rs.1,10,000/- paid by him, the defendant did not complete the building. Accordingly, he again sought financial assistance. Accordingly, the plaintiff spent a further sum of Rs.20,000/- for completion of the work and occupied the suit property as a Othidar from 01.03.2005. Whereas it is the condition of the defendant that the plaintiff's daughter was allowed to occupy the premises from 01.03.2005 on a monthly rental basis for a sum of Rs.5,000/- as a tenant,. Thereafter, as the defendant did not pay the interest for the amount borrowed by him, the same was adjusted towards the rent. From the pleadings of both sides, it can be easily concluded that only in the money transaction, at the earlier point of time, the property was handed over to the possession of the plaintiff's daughter. Further pleadings of the plaint clearly indicate that only the plaintiff's daughter residing in the suit property and paying electricity charges, etc., The documents filed by the plaintiff, namely, Exs.A5 to A7, A11 and 15/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 A14 indicate that the property is actually in possession of the plaintiff's daughter. It is the specific case of the plaintiff that only his daughter is residing in the property. The above facts makes it very clear that the possession of the plaintiff or his daughter was not in pursuance of the sale agreement-Ex.A4. The possession of the plaintiff's daughter in the suit property is in respect of the different independent transaction, namely, Othi, for the amount advanced by the plaintiff. Even in Ex.A4 sale agreement, dated 30.11.2006, there is no reference whatsoever with regard to the handing over of the possession in pursuant to the agreement entered between the parties. Further, there is no reference that the possession of the plaintiff's daughter or plaintiff would be covered under this agreement.
15. Now, in the light of the above submissions, it has been analysed whether the plaintiff was ready and willing to perform his part of contract to seek relief of specific performance. Ex.A1 has filed to show that the defendant was interested to sell the property. On perusal of Ex.A1 makes it very clear that the parties, namely, the defendant and plaintiff's wife agreed to exchange the properties and the plaintiff's wife agreed to pay the remaining sale 16/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 consideration within 15 days from 30.05.2006. One of the conditions in the agreement is that the plaintiff's wife has to pay a sum of Rs.1,90,000/- towards housing loan availed by the defendant in the State Bank of Trivancore, Thanjavur. It is an admitted fact that as per the agreement, the above amount was not paid and thereby, both the parties were mutually cancelled Ex.A1. The pleadings of the plaintiff clearly indicate that Ex.A1 is not acted upon by the parties. This document is relevant to access the conduct of the parties. Though there was an intention to purchase the property, the agreement has not been enforced and given up. The conduct of the plaintiff indicates that neither the plaintiff nor his wife performed their part of obligation to pay the bank loan and get the property registered. Be that as it may, now the second sale agreement, dated 30.11.2006, which is the subject matter of the suit came into existence between the parties was marked as Ex.A4. On careful perusal of Ex.A4, the defendant has agreed to sell the property for Rs.12,55,000/- and Rs.4,52,500/- is said to have received as an advance. This amount has included loan amount also.
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16. The recitals in the agreement shows that the plaintiff has to discharge Rs.2,10,000/-, ie., the loan amount payable by the defendant to the bank, within 10 days from the date of agreement and the remaining amount shall be paid on or before 5th February, 2007 and it is also agreed by the parties that in the event of failure on the part of the plaintiff to pay Rs.2,10,000/- within 10 days and also to pay the remaining balance amount of Rs.5,92,500/- on or before February, 2007, the agreement shall stands cancelled automatically. Thereafter, the defendant has to pay the advance amount with interest at the rate of 3%. Perusal of such clause in the agreement, this Court is of the view that the parties have intended to make the time is essence of contract. Therefore, the trial Court findings that time is not an essence of contract and default clause cannot be enforced cannot be countenanced. In fact, the parties themselves have stipulated that the payment has to be made within such a time. In the event of failure to pay the amount within such time, the agreement shall stand cancelled. It is not a unilateral agreement and both of them have agreed to such terms. Such view of the fact, the above terms make the time is an essence of contract. It is also to be noted that it is the case of the plaintiff that when he enquired the Bank and came to know that the 18/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 defendant has availed many loans, therefore, the Bank authorities did not agree to hand over the title deeds. PW.2-the relative of PW1 was examined in this regard. In his evidence, there is no detail whatsoever as to the nature of enquiry made from the Bank. Whereas the defendant's side evidence and PW.4-the official from the Bank, clearly proves the fact that the defendant has availed other loans in different capacity in the business side like cash credit facilities, which is unconnected to housing loan. The suit property documents have been handed over to the defendant, when he made the payment in respect of the housing loan. This fact itself clearly shows that the other loans now put forth by the plaintiff is not related to the suit property. That being the position, it is for the plaintiff to establish that he was ready with money to pay the sum of Rs.2,10,000/- within 10 days as agreed by him to clear the loan. Absolutely, there is no evidence whatsoever on record to show that the plaintiff was ready with money in his hand to pay the Bank loan of Rs.2,10,000/- and also the remaining sale consideration till the suit is filed. It is also relevant to note that when the suit was filed, the defendant has filed an application to deposit the advance amount, which was opposed by the plaintiff and the plaintiff also sought permission to 19/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 pay the remaining sale consideration. The trial Court in its judgment has clearly referred that the permission was also granted to the plaintiff to deposit the amount. Even after such observation, the amount has not been deposited. No doubt, deposit of the remaining sale consideration is not necessary to seek specific performance. But when the plaintiff himself sought such permission and failed to deposit, that cannot be ignored altogether. The above facts clearly lead to the inference that the plaintiff in fact failed to pay the consideration as agreed within the agreed period or even after the suit. These facts clearly show that the plaintiff was not ready and willing to perform the part of the contract from the very beginning. The readiness means capacity to pay the remaining sale consideration, the willingness is the mental attitude to purchase the property. When the intention and attitude is lacking and the plaintiff is also failed to establish his capacity to pay the remaining sale consideration, it has to be concluded that the readiness and willingness has not been established in this case. It is also relevant to note that the condition in the agreement clearly states that within 10 days from the date of agreement, a sum of Rs.2,10,000/- has to be paid to the defendant. The plaintiff has not paid such amount whereas his contention that he has gone to the Bank 20/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 directly and enquired and finally, he could not discharge the amount. Such contention has no force. It is further to be noted that as per the evidence of PW.4, the loan amount has been paid by the defendant himself in the month of February, 2008. The legal notice- Ex.A8, which was sent by the plaintiff on 22.09.2008, makes it clear that the plaintiff is not at all ready and willing to perform the part of the contract. The readiness and willingness must be proved from the inception of agreement till the end.
17. On perusal of Exs.A1 and A4, though the defendant has agreed to sell the property, neither PW.1 nor his wife shown interest in paying the small amount to the bank and got the document registered in their name. This fact itself probablise the defence theory that the plaintiff is infact interested rather than the registration of the document but only to protect the possession of his daughter, who was inducted on the basis of the loan given by the plaintiff, at the stage of the construction. The possession was based on Othi (mortgage). Such being the position, the readiness and willingness cannot be invoked, merely because the suit has been filed within the period of limitation. No doubt, in the judgment referred by the learned counsel for the appellant, the Apex Court 21/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 has held that since the suit is filed within the period of limitation, the delay in filing the suit cannot be put against the plaintiff.
18. In the above case, the Apex Court has taken note of the readiness and willingness and the legal notice sent by the plaintiff. In such circumstances, the above judgment was passed. The above judgment is not applicable to the facts of the present case whereas under Section 16(c) of the Specific Relief Act, it is the bounden duty of the plaintiff not only to plead the readiness and willingness but also to prove the same. Though there could not be any straight-jacket formula as to the pleadings of the readiness and willingness, but whether the plaintiff is always ready and willing, has to be established in evidence. On perusal of the entire evidence, this Court finds that readiness and willingness is totally absent from very inception. Ex.A8 is issued on 29.09.2008.
19. It is also to be noted that the legal notice was issued few days prior to filing of the suit before the trial Court and in fact, the suit was filed on 22.10.2008. All these facts clearly indicate that the plaintiff was keeping silent from the very beginning. Further, there is no evidence whatsoever available on record would 22/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 show that the plaintiff had wherewithal and capacity to pay the remaining sale consideration. In view of the above fact, this Court holds that ready and willingness has not been established.
20. Now as already discussed, the possession was also not handed over to the plaintiff in furtherance of contract. The plaintiff clearly stated in his evidence that he took possession on the basis of Othi (mortgage) after paying a sum of Rs.1,10,000/-. Though the trial Court rightly rejected that the plaintiff is not entitled to invoke the provision under Section 53A of the Transfer of Property Act, it is to be noted that to invoke the part performance under Section 53A of the Transfer of Property Act, the possession should have taken in part performance of the contract or the transferee already being in possession or continues in possession in part performance of the contract and has done some act in furtherance of contract and the transferee has performed or is willing to perform his part of contract. Though the plaintiff claims that he is in possession of the property, from the records, it is clearly established that only the the plaintiff's daughter had come into possession. Though the suit agreement came into existence between the parties in the year of 2006, the plaintiff's daughter had already come into possession on 23/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 01.03.2005. Hence, it cannot be construed that her possession was in furtherance of contract, as the possession was taken on the basis of Othi. Even in the agreement, the said possession of the plaintiff's daughter has not been referred. At any event, to claim a protection under Section 53 A of the Transfer of Property Act, ready and willingness has to be established on the side of the plaintiff, but it is totally absent. Yet another aspect, which has to be seen is when a person seeking to protect his possession on the basis of the agreement as part performance, the very contract itself should have been registered. Unless the document is registered, one cannot seek part performance. It is necessary to place reliance of the commencement of Registration and Other Related Laws (Amendment) Act, 2001, (Act 48 of 2001), which has been amended and came into force on 24.09.2001. Section 17(1-A) of the Registration Act, has also amended and introduced Section 17(1-A), which makes it very clear that the documents contained a contract to transfer the consideration of any immovable property for the purpose of Section 53 A of the Transfer of Property Act, shall be registered, if they have been executed on or after the commencement of the Registration or Other Related Laws (Amendment) Act, 2001, (48 of 2001). If such documents are not 24/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 registered on or after such commencement, then, they shall have no effect for the purpose of the Section 53A of the Transfer of Property Act. Therefore, Ex.A1 though admitted, even assuming that the plaintiff's daughter was in possession on behalf of the plaintiff, the plaintiff cannot claim any right on the basis of Ex.A4, since it is an unregistered document. Therefore, the trial Court findings that the part performance cannot be claimed by the plaintiff does not require any interference. Now, with regard to the question of permanent injunction in favour of the plaintiff, though it is contended by the plaintiff that the possession of the plaintiff is on the basis of the Othi in the year 2005, there is no whisper in Ex.A4- agreement that the possession continues in pursuant to the agreement, but the evidence of the plaintiff clearly indicated that only the plaintiff's daughter is residing in independent right and the telephone connection receipt and other documents clearly show that she is residing independently in her own right in the said property. Such being the position, it cannot be said that the possession of the daughter is only on behalf of the plaintiff. Therefore, the lower Court judgment granting permanent injunction in favour of the plaintiff cannot be sustained in law for the simple reason that the person, who seeks a decree of 25/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 Permanent Injunction must be in actual possession and he cannot seek injunction against somebody, who is actually in possession of the property. No doubt, the defendant has also admitted that the plaintiff's daughter is residing in the ground floor of the suit property and that itself cannot be a ground to grant an injunction in her favour, who has not come before the Court as a party. Admittedly, the plaintiff is not residing in the suit property. Such being the position, the permanent injunction granted by the trial Court is certainly not maintainable and liable to be set aside. Accordingly, the cross objection has necessarily to be allowed. However, the fact remains that the defendant has also admitted in his written statement that the plaintiff's daughter was inducted as a tenant and is continuing in possession. Such being the position, when the possession was initially permissive and subsequently, he claims that she is not paying any rent, such possession is unlawful. The defendant has to take legal course to recover the property from the possession of the plaintiff's daughter.
21. With regard to the factual finding towards the mandatory injunction, the trial Court is rightly taking note of the fact that the application filed by the plaintiff has already reached 26/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 finality. Such view of the matter, the contention that the plaintiff and his daughter are in possession of the first and second floor and recovery of possession and the mandatory injunction is also rightly negatived. Accordingly, all the points are answered.
22. In fine, the appeal suit stands dismissed. The cross objection is allowed and the permanent injunction granted by the trial court is set aside. No Costs. Consequently, connected miscellaneous petition is closed.
29.01.2020
Index : Yes/No
Internet : Yes/No
PJL
To
1. The Additional District and Sessions Judge(PCR), Thanjavur.
2.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
27/28 http://www.judis.nic.in Appeal Suit(MD) No.138 of 2018 N.SATHISH KUMAR, J.
PJL Judgment made in Appeal Suit(MD)No.138 of 2018 and Cross Objection(MD).No.22 of 2018 Delivered on 29.01.2020 28/28 http://www.judis.nic.in