Madras High Court
Gangaa Educational And Welfare Trust vs C. Thangaraj on 14 July, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
S.A.No.470 & 540 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 14.07.2025
CORAM:
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Second Appeal Nos.470 and 540 of 2013 and
M.P.Nos.1 and 1 of 2013
S.A.No.470 of 2013
1. Gangaa Educational and Welfare Trust
Represented by its Secretary and Correspondents
Mrs. Saraswati Ganapathi
Shri Gangaa Higher Secondary School
Ingur, Perundurai Taluk,
Erode District ... Appellant
Versus
1. C. Thangaraj
2. S.Easwaramoorthy
3. K.S.Jagadeesan ... Respondents
S.A.No.540 of 2013
K.S.Jagadeesan ... Appellant
Versus
1. C.Thangaraj
2. S.Easwaramoorthy ... Respondents
Prayer in S.A.No.470 of 2013:- Second Appeal is filed under Section 100 of
Civil Procedure Code against the judgment and decree dated 28.09.2012
passed in A.S.No.15 of 2012 by the learned Subordinate Judge, Perundurai
reversing the well considered judgment and decree of the District Munsif-cum-
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S.A.No.470 & 540 of 2013
Judicial Magistrate, Perundurai in O.S.No.34 of 2008, dated 20.01.2012.
Prayer in S.A.No.540 of 2013:- Second Appeal is filed under Section 100 of
Civil Procedure Code against the judgment and decree dated 28.09.2012
passed in A.S.No.14 of 2012 by the learned Subordinate Judge, Perundurai
reversing the well considered judgment and decree of the District Munsif-cum-
Judicial Magistrate, Perundurai in O.S.No.240 of 2004, dated 20.01.2012.
S.A.No.470 of 2013:
For Appellant : Mrs.V.Srimathi
For R1and R2 : Mrs.Chithra Sampath
Senior Counsel
for Mr.V.Anandhamoorthy
S.A.No.540 of 2013:
For Appellant : Mrs.V.Srimathi
For Respondents : Mrs.Chithra Sampath
Senior Counsel
for Mr.V.Anandhamoorthy
COMMON JUDGMENT
The Second Appeal in S.A.No.470 of 2013 is filed against the judgment and decree dated 28.09.2012 passed in A.S.No.15 of 2012 by the learned Subordinate Judge, Perundurai, reversing the judgment and decree dated 20.01.2012 passed in O.S.No.34 of 2008 by the learned District Munsif-cum- Judicial Magistrate, Perundurai.
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2. The Second Appeal in S.A.No.540 of 2013 is filed against the judgment and decree dated 28.09.2012 passed in A.S.No.14 of 2012 on the file of the learned Subordinate Judge, Perundurai, reversing the judgment and decree dated 20.01.2012 passed in O.S.No.240 of 2004 by the learned District Munsif-cum-Judicial Magistrate, Perundurai.
3. The brief averments made by the Plaintiff in the plaint in O.S.No. 240 of 2004 are as follows:-
3.1. The suit property absolutely belongs to the 1st Defendant by virtue of a registered sale deed dated 3.12.1997. On 2.7.2001, the Plaintiff and the 1st Defendant entered into a written sale agreement whereunder the 1st Defendant agreed to sell the entire suit property to the Plaintiff or his nominee for a sale consideration of Rs.94,680/- within a period of one year and 9 months from the date of agreement and on the same day, a sum of Rs.60,000/ was paid as advance as well as part of the sale consideration by the Plaintiff to the 1st Defendant by discharging the debt, he borrowed from one Mr.N.Ramamoorthi of Villarasampatti Nal road, under a promissory note dated 2.11.1998. On the same day, the first Defendant delivered the possession of the suit property to the Plaintiff under part performance of the contract.
Eversince the date of agreement, the Plaintiff was in continuously ready and 3/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 willing to perform his part of the contract and the Plaintiff tendered the balance of the sale consideration to the 1st Defendant many time and requested him to execute the sale deed as agreed upon between the Plaintiff and the 1st Defendant. But the 1st Defendant was postponing the execution of the sale deed under some pretext or other. When the Plaintiff made the final demand on 15.1.2003, the 1st Defendant to the dismay of the Plaintiff refused to perform his part of the contract by executing a registered sale deed as agreed upon. The refusal of the part of the 1st Defendant to perform his part of the contract is absolutely mala fide. The Plaintiff even not ready to pay the balance of sale consideration. Further, the Plaintiff submits that the 2nd Defendant is the henchman and close associate of the 1st Defendant and they are jeoparadise it, they are bent upon to dispose the Plaintiff from the suit property, if any reason, this court comes to the conclusion that the Plaintiff is not entitled for the relief of specific performance, he is entitled to get back advance amount of Rs.60,000/- with interest at the rate of 18% per annum and also the Plaintiff is entitled to create a charge over the suit property for the payment of the abovesaid amount. Hence, the Plaintiff filed the suit for directing the 1st Defendant to pay the Plaintiff a sum of Rs.60,000/- with subsequent interest at the rate of 18% per anmum from the date of suit till the date of realisation and creating a charge over the suit property for the aforesaid amount and costs of 4/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 the suit.
4. The avements in the written statement filed by the first Defendant and adopted by 2nd Defendant in O.S.No. 240/2004 are as follows:-
4.1. It is true that the suit property absolutely belongs to the 1st Defendant by virtue of a registered sale deed, dated 3.12.1997 and ever since from the date of purchase, the 1st Defendant is in possession and enjoyment of the suit property. The description of property is wrong and the 1st Defendant never entered into an agreement to sell the suit property to the Plaintiff or anybody else at any point of time and he has no necessity to sell the same.
Actually, the 1st Defendant was the Treasurer of Sri. Gangaa Higher Secondary School for the year of 1998 to 2000 and then he and the 2nd Defendant and others started a "Gangai Educational and Welfare Trust" and running a School under the name of Gangaa High School and Matriculation School has the Sri Gangaa Higher Secondary School. Aggrieved by that the people running the Sri Gangaa Higher Secondary School gave all sorts of trouble to the 1st Defendant to run the School and is attempting to swallow the suit property. With that and in mind, they also gave false complaints to the Police. On failing in all their attempts, now they set up their henchman, the 5/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 Plaintiff herein to file this vexatious suit with fabricated document. The 1st Defendant submits that the suit property with correct description was leased out by the 1st Defendant to Gangai Educational and Welfare Trust on 31.12.2002. Under a registered lease deed and possession was handed over. Knowing the same, the Plaintiff has been set up by Sri. Gangaa Higher Secondary School people filed this suit with fabricated document with ulterior motive. The signature and the thumb impression found in the sale agreement filed by the Plaintiff are not the signature and the thumb impression of the 1st Defendant. Therefore, the same are to be scrutinised by an expert. The Plaintiff has executed a lease deed regarding the suit property after filing of this suit in favour of Gangai Educational and Welfare Trust and it will prove that the suit is filed in the name of the Plaintiff by the person dealing with Gangaa Matriculation and Welfare Trust and malafide intention. The Plaintiff is a name lender and a stooge in the hands of the said persons dealing with Gangai Educational and Welfare Trust. The Plaintiff is a total stranger to the 1st Defendant. The 1st Defendant never borrowed any amount from the alleged N. Ramamoorthi of Villarasamptti Nal road under a promissory note, dated 2.11.1998 and the alleged Ramamoorthi is stranger to the 1st Defendant when the 1st Defendant was the Treasurer of Gangaa Educational and Welfare Trust, amounts were borrowed from one Loganathan, son of Ramasamy Gounder of 6/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 Pethampalayam through Natarajan, the husband of Mrs. Jayalakshmi, the President of Gangaa Educational and Welfare Trust for the development of the Trust. For the loan borrowed, a blank promissory note were signed by the 1st Defendant, since he was the Treasurer at that time it was given as a security. Even after the loan has been repaid the blank promissory note were not handed back by Natarajan to the 1st Defendant. The 1st Defendant suspects that the said blank promissory note is fabricated and filed as one of the documents in this suit. The market value of the suit property more than Rs.7 lakhs even at the alleged date of agreement. Hence, the averments that the 1st Defendant agreed to sell the suit property for Rs.94,600/ to the Plaintiff itself proves the Plaintiff's false claim. The Plaintiff has filed this vexatious suit with fabricated document and he has not come to this court with clean hands and no cause of action for the suit. Hence, they pray for dismiss the suit with costs.
5. The trial Court has framed the following issues for trial in O.S.No.240 of 2004:-
1) Whether the suit agreement dated 2.7.2001 is true, valid and binding on the Defendants?
2) Whether the Plaintiff is entitled for the relief of specific performance or get back the advance amount?
3) To what other relief 7/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013
6. During trial, on the side of the Plaintiff, P.W-1 to P.W-3 were examined and Ex.A-1 and Ex.A-2 were marked. On the side of the Defendants, D.W-1 and D.W-2 were examined and Ex.B-1 to Ex.B-12 were marked and Ex.X-1 marked.
7. The brief averments in the plaint in O.S.No.34/2008 are as follows:-
7.1. The Plaintiff is a private trust formed for the purpose of running Education Institutions. The Trust is duly registered. As per the Trust deed, the Secretary and Correspondent of the Trust is competent to verify and present the plaint. The Plaintiff is running a Matriculation School under the name and style of Shri Gangaa Matriculation School wherein more than 400 students are studying. The other School run by the Trust is Shri Gangaa Higher Secondary School wherein also 700 students are studying. In the hostel 900 students are staying. Further, they submit that the 1st Defendant is the absolute owner of the suit property. The 1st Defendant and the 3rd Defendant entered into a sale agreement dated 2.7.2001 wherein the 1st Defendant agreed to sell the suit property in favour of the 3rd Defendant. The sale price fixed for the suit property was Rs.94,680/-. The 1st Defendant received a sum of Rs.60,000/-
towards advance and part of sale consideration. Moreover on the date of 8/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 agreement itself, the 1st Defendant handed over possession of the suit property to the 3rd Defendant. Further they submits that in turn, the Plaintiff and the 3rd Defendant entered into two registered annual lease deeds, dated 22.4.2003 leasing out the suit property in favour of the Plaintiff for a period of 10 years, i.e.. upto 21.04.2013. The annual lease was Rs.500/-. As the 3rd Defendant is actual possession pursuant to the sale agreement dated 2.7.2001. He also joined in executing the said lease deed. The 3rd Defendant handed over possession of the suit property on the date itself. The Plaintiff is in possession and enjoyment of the suit property from the date of said lease deed anted 22.4.2001. The suit property is being use of School playground and the Plaintiff has put up wire fence around the suit property. The Defendants 1 and 2 were originally members of Plaintiff's Trust and they indulged in activities against the interest of the Plaintiff's Trust. Hence, they were expelled and removed from the membership of the Trust on 16.12.2001. Thereafter, the Defendants 1 and 2 along with 3rd parties started another School adjacent to the Plaintiff's Trust School. The Defendants 1 and 2 always treated the Plaintiff's right a competitor and therefore they are always treated the Plaintiff's right a competitor and therefore they are always trying to wreck vengeance by construct interfere with the peaceful running and administration Trust School by the Plaintiff. On 11.11.2007, the Defendants along with their 9/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 henchmen damaged the wire situated on the east of the suit property taken away the same along with tress. The said incident a criminal case was registered by the concerned police. Hence, the Plaintiff filed this present suit for permanent injunction, restraining the Defendants 1 and 2 their men and agents either from cutting wire fence or from trespassing into the suit property or interfering in any other manner with the Plaintiff's peaceful possession and enjoyment of the same with costs.
8. The brief averments in the written statement filed by 1st Defendant and adopted by 2nd Defendant is as follows:
8.1. They denied that the 1st Defendant and 3rd Defendant entered into a sale agreement agreement dated 02.07.2001 wherein that 1st Defendant agreed to sell the suit property in favour of the 3rd Defendant. The sale price fixed as Rs.94,680/- and the 1st Defendant received a sum of Rs.60,000/-
towards advance and the date of agreement itself, the 1st Defendant handed over the suit property to the 3rd Defendant are denied. The said sale agreement was a forged one and the 3rd Defendant also filed a suit in O.S.No.240 of 2004 for the relief of specific performance based on the forged sale agreement and the same was pending before this Court. The 1st Defendant strongly denied the execution of the said sale agreement. The possession of the suit property is 10/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 under the 1st Defendant on behalf of the Gangai Educational Trust and the same was used by the students of the Maha Higher Secondary School as playground and the Plaintiff and the 3rd Defendant entered into two registered annual lease deeds dated 22.4.2003 leasing out the suit property in favour of the Plaintiff for a period of 10 years. Annual lease was Rs.500/ and the 3rd Defendant is actual possession pursuant to the sale agreement dated 2.7.2001, he also joined in executing the said lease deed, the 3rd Defendant handed over the possession of the suit property on the date itself are all denied by the 1st Defendant as false. The suit property belongs to the 1st Defendant by way of sale deed. From the date of purchase, the 1st Defendant is in possession and enjoyment of the suit property and subsequently on 31.12.2002, he executed a lease deed in favour of the Gangai Educational Welfare Trust for 25 years and also the lease amount was fixed as Rs.1,315/ per year and as per the said lease deed, the abovesaid Gangai Educational Welfare Trust is in possession of the suit property and the same was used as playground by the students of Maha Higher Secondary School and the Plaintiff is no way connected with the suit property. The Plaintiff and their henchmen are all found jealous over the Defendants in the School activities and lodged false complaints before the police. The Plaintiff and the 3rd Defendant colluded together and foisted this false suit. Hence, pray for dismissal of the suit with costs. 11/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013
9. The brief averments in the written statement filed by the 3rd Defendant in O.S. No.34/2008 are as follows:-
9.1. The Plaintiff trust is a registered one is not disputed by the 3rd Defendant. Regarding the ownership of the suit property, the sale agreement dated 2.7.2001 entered between the 1st Defendant and the 3rd Defendant, the sale price fixed for the suit property, the payment of Rs.60,000/- towards advance and part of sale consideration. The delivery of possession of the suit property to the 3rd Defendant are true. It is true that the Plaintiff and the 3rd Defendant entered into two registered annual lease deeds, dated 22.4.2003, leasing out the suit property in favour of the Plaintiff for a period of 10 years i.e., upto 21.4.2012 and the annual lease was Rs.500/- and the 3rd Defendant handed over possession of the suit property on the date itself to the Plaintiff.
The 3rd Defendant is not a necessary party to the suit. Hence, he prays for dismiss the suit against the 3rd Defendant with costs.
10. The trial Court framed the following issues for trial in O.S.No.34 of 2008:
1) Whether the agreement dated 2.7.2001 is true and valid?
2). Whether the Plaintiff is in possession or not?
3) Whether the Plaintiff is entitled for permanent injunction as 12/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 prayed for?
4) Whether the alleged lease deed dated 22.4.2003 is true and valid?
5) To what other reliefs?
11. During trial, on the side of the Plaintiff, P.W-1 and P.W.2 were examined and Ex.A.1 to Ex.A.5 were marked. On the side of the Defendants D.W-1 and D.W-2 were examined and Ex.B-1 to Ex.B-6 were marked and Ex.C-1 and Ex.?-2 were marked.
12. On considering the evidence and documents on both sides, the trial Court decreed both the suits with cost by granting the relief of specific performance in O.S.No. 240/2004 and granting the relief of permanent injunction in O.S.No.34/08. Aggrieved by the decree and Judgment passed by the trial Court, the Defendants 1 and 2 filed appeals in A.S.No.14 and 15 of 2012 before the learned Sub Judge, Perundurai. The learned Sub Judge, Perundurai, on re-appreciation of evidence, dismissed the suit in O.S.No.240 of 2004 and O.S.No.34 of 2008.
13. Aggrieved, the Plaintiff in O.S.No.34 of 2008/first Respondent in A.S.No.15 of 2012 has filed S.A.No.470 of 2013 and the Plaintiff in O.S.No.240 of 2004/Respondent in A.S.No.14 of 2012 has filed S.A.No.540 of 13/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 2013.
14. On 03.08.2018, while admitting this Second Appeal, this Court had framed the following substantial questions of law:
(1) Whether the Court below had misdirected itself in law by overlooking the question of possession, and posing a wrong question unto itself?
(2) Whether the Court below had manifestly erred in relocating the burden of proof on the Plaintiff, especially when he had discharged the same by proving his possession?
(3) Whether the appellate court is right in arriving at a perverse finding by discarding the relevant evidence of PW2 and PW3, especially when the credibility of these witnesses remains unimpeached?
(4) Whether the appellate Court had not manifestly erred in rejecting the execution of the promissory note Ex.A2 especially when the Defendant had not denied the same either in his pleading or his evidence?
15. The learned Counsel for the Appellant in both Appeals submitted that the Plaintiff in O.S.No.34 of 2008 on the file of the learned District Munsif-cum-Judicial Magistrate, Perundurai and the Plaintiff in O.S.No.67 of 14/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 2003 on the file of the learned Principal Subordinate Judge, Erode are the Appellants in the Second Appeals. The Suit in O.S.No.67 of 2003 was withdrawn and transferred to the file of the learned District Munsif-cum- Judicial Magistrate, Perundurai and renumbered as O.S.No.240 of 2004. Both the Suits were taken up together. O.S.No.34 of 2008 was filed by Gangaa Educational and Welfare Trust represented by its Secretary and Correspondents Mrs. Saraswati Ganapathi against one Thangaraj and two others for permanent injunction. The Suit in O.S.No.67 of 2003 which was renumbered as O.S.No.240 of 2004 was filed for specific performance of contract by K.S.Jagadeesan against Thangaraj and Eswaramoorthi. Both the Suits were taken up together and trial was conducted. On assessment of evidence, the learned District Munsif-cum-Judicial Magistrate, Perundurai by Judgment dated 20.01.2012 granted decree in both the suits.
16. The learned Counsel for the Appellant in both the Second Appeals invited the attention of this Court to the recital under Ex.A-1 wherein it is claimed that on the date of entering the sale agreement, Rs.60,000/- was accepted by the Defendant. If the Defendants fail to execute the sale deed within a period of one year and nine months, the Plaintiff can approach the Court for enforcement of the contract for sale of the property. In the light of 15/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 such fact, when the Plaintiff approached the Defendants within the time mentioned in the sale agreement, the Defendant did not come forward. Also, on the date of sale agreement under Ex.A-1, the possession of the property was handed over to the Plaintiff/Jagadeesan who was a Member of the Gangaa Educational and Welfare Trust. The Educational Trust/Suit property was enjoyed by the Gangaa Educational and Welfare Trust as playground. Subsequently, the Defendants/Thangaraj and Eswaramoorthy did not come forward to execute the sale deed as per the recital in Ex.A-1. Therefore, the Plaintiff had deposited the amount in the Court on the date of filing of the Suit for specific performance in O.S.No.67 of 2003 before the learned Principal Subordinate Judge. After entering appearance, the Defendants had denied the execution of sale agreement. In the course of trial, the Defendants had filed I.A.No.1058 of 2007 in O.S.No.240 of 2004 in which the learned Sub Judge had passed orders to refer Ex.A-1 to Forensic Expert regarding the expert opinion for handwriting and thumb impression of D-1 since the Defendant denied both. Also, the first Defendant was directed to furnish documents containing his admitted signature and admitted thumb impression for comparison by the expert in the Forensic Sciences Department. Accordingly, the documents were sent to the Forensic Laboratory. On comparison of the signature and thumb impression under Ex.A-1 with the documents containing 16/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 admitted signature and thumb impression of the first Defendant, the Forensic Expert gave the opinion that they were unable to give an opinion based on the documents furnished by the first Defendant and sought for additional documents for comparison. At that stage, the learned Sub Judge had directed the first Defendant to furnish additional documents to disprove the claim of the Plaintiff regarding the execution of sale agreement. At that stage, in spite of several chances, the first Defendant did not cooperate with the Court by furnishing the additional documents containing admitted signature and admitted thumb impression of D-1. Therefore, the learned Sub Judge had closed further proceedings in I.A.No.1058 of 2007. This was stated by the learned Sub Judge while discussing the evidence and conduct of the parties before the trial Court. In conclusion, the learned District Munsif-cum-Judicial Magistrate, Perunduarai had decreed the Suit in O.S.No.34 of 2008 and O.S.No.67 of 2003 renumbered as O.S.No.240 of 2004 by granting the decree for specific performance in the suit filed by Jagadeesan and decree for permanent injunction in the suit filed by Gangaa Educational and Welfare Trust. The Defendants had preferred the Appeal in A.S.No.14 of 2012 and A.S.No.15 of 2012 before the learned Subordinate Judge, Perundurai. The learned Appellate Judge had misdirected himself and reversed the finding given by the learned District Munsif-cum-Judicial Magistrate stating that the 17/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 Plaintiff in O.S.No.67 of 2003 renumbered as O.S.No.240 of 2004 had not given pre-suit notice to the Defendants. The learned Appellate Judge failed to consider the discussion of evidence by the learned District Munsif-cum- Judicial Magistrate, Perundurai, in the common Judgment in O.S.Nos. 34 of 2008 and 240 of 2004, dated 20.01.2012 and had misdirected himself thereby rejected the contention of the Plaintiff and the Plaintiff's evidence and dismissed the Suit. Aggrieved by the Judgment of the first Appellate Court in common Judgment in A.S.No.14 and 15 of 2012, dated 28.09.2012, the Plaintiffs in both the Suits had preferred the Second Appeals before this Court.
17. The learned Counsel for the Appellant in both Appeals invited the attention of this Court to the discussion of evidence by the learned District Munsif-cum-Judicial Magistrate, Perundurai and the discussion of the evidence by the learned Appellate Judge in Appeal in A.S.Nos.14 and 15 of 2012 and submitted that the finding of the learned First Appellate Court Judge is an erroneous one and it has to be set aside. In the light of the discussion of evidence by the learned trial Judge, the learned Appellate Judge has failed to consider the recitals under Ex.A-1-sale agreement deed which specifically states that if the Defendants fail to execute the sale deed i.e., within the time specified within one year and nine months, the Plaintiff is within his discretion 18/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 to approach the Court for enforcing the specific contract. Under those circumstances, the question of pre-suit notice does not arise whereas the learned Appellate Judge had given a finding by ignoring those recitals and the facts of the case as gathered from records, which were discussed by the learned Sub Judge, specifically, I.A.No.1058 of 2007 filed by the first Defendant in which he denied his signature and thumb impression in Ex.A-3 and in the specific averments in the written statement that the sale agreement deed was a forged document and that the Plaintiff had played fraud on the first Defendant. Under those circumstances, it is for the first Defendant to prove his contention in the written statement. I.A.No.1058 of 2007 was allowed by the learned trial Judge directing the first Defendant to furnish the documents containing admitted signature and the thumb impression and the same was forwarded to the Expert to obtain the Expert opinion since the Expert was unable to give an opinion and sought furthermore documents containing admitted signature from the person who disputed the signature and thumb impression. After the receipt of report, the learned trial Judge directed the first Defendant to furnish more documents containing his admitted signature and thumb impression. He remained indifferent and did not cooperate with the Court. This was discussed by the learned trial Judge. The learned Sub Judge in the Judgment drew adverse inference against the conduct of the first Defendant. Therefore, in the 19/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 facts and circumstances of the case gathered from the evidence available before the learned trial Judge, the learned trial Judge had decreed both the Suits.
18. The learned Appellate Judge failed to consider specifically these facts in the Appeals while re-appreciating the materials available before the trial Court. Also, the learned Counsel for the Appellant submitted that when the learned trial Judge had on proper appreciation of evidence available before the learned trial Judge arrived at a conclusion, the learned first Appellate Judge shall not disturb the finding arrived at by the learned District Munsif- cum-Judicial Magistrate, Perundurai. Instead the learned first Appellate Judge had disturbed the finding arrived at by the learned trial Judge. Therefore, the learned Counsel for the Appellant seeks to set aside the Judgment of the first Appellate Court in A.S.Nos.14 and 15 of 2012 and seeks to restore the Judgment of the learned District Munsif-cum-Judicial Magistrate, Perundurai, in O.S.No.34 of 2008 and 67 of 2003 renumbered as O.S.No.240 of 2004.
19. Ms.Chitra Sampath, the learned Senior Counsel for the Respondents in both Second Appeals invited the attention of this Court to the Plaint averments in O.S.No.67 of 2003, the date of the alleged sale agreement 20/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 and the relationship among the parties in O.S.No.67 of 2003 and O.S.No.34 of 2008. As per the Plaint averments in O.S.No.67 of 2003, the entire extent of the suit property is 5 Acres and 26 Cents. If that is true, what had been purchased is only 2 Acres 63 Cents, the seller could have mentioned that he retained the half of the portion by identifying the boundaries. If that had been true, half of the undivided share cannot be granted. Therefore, the claim made by the Appellant is fictitious and fraudulent. After having filed the Suit, they entered into agreement of lease by creating documents in favour of Gangaa Educational Welfare Trust represented by its Secretary and Correspondents Saraswathi Ganesan. Also, the learned Senior Counsel invited the attention of this Court to the Criminal Complaint given by Saraswathi against Thangaraj – one of the Defendants in the Suit in O.S.No.34 of 2008. As per the Complaint, the said Thangaraj having taken the amount from the Trust to purchase the property for the Trust, had given the funds of the Trust by registering the sale or sale agreement in his favour/individual favour. Therefore, on breach of trust, the Complaint was filed. After investigation, Charge sheet was laid before the Court of the learned District Munsif-cum-Judicial Magistrate, Perundurai. The learned Senior Counsel for the Respondents invited the attention of this Court to the discussion of the evidence in the Judgment by the learned District Munsif-cum-Judicial Magistrate, Perundurai which is found in 21/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 the typed set filed by the Respondents in this Second Appeal. The Judgment in C.C.No.170 of 2002 is a case filed by the Police after investigating the Complaint lodged by Saraswathy in which Accused 1 is Eswaramoorthy and Accused 3 is Thangaraj who are the Defendants in O.S.No.34 of 2008 which is a Suit filed by the Gangaa Educational Welfare Trust by its Secretary and Correspondents Saraswathy Ganesan in which third Defendant is K.Jagadeesan. The Suit in O.S.No.67 of 2003 is filed by K.Jagadeesan against C.Thangaraj and S.Eswaramoorthy. The Plaintiff and the Defendants in O.S.No.67 of 2003 are the Defendants 1 to 3 in O.S.No.34 of 2008. The learned Senior Counsel for the Respondents invited the attention of this Court to the Suit in O.S.No.34 of 2008 which is filed by the Gangaa Educational Welfare Trust by its Secretary and Correspondents Saraswathy Ganesan, after the Judgment in C.C.No.170 of 2002 which was pronounced by the learned District Munsif-cum-Judicial Magistrate on 10.01.2007. The claim made in the Suit for specific performance in O.S.No.67 of 2003 itself is fraudulent as on the date of filing of the Suit, the Plaintiff had not entered into such sale agreement. As per the written statement filed by the first Defendant in O.S.No.67 of 2003, the Plaintiff had not parted the amount and the first Defendant neither received nor entered into the sale agreement deed. When O.S.No.67 of 2003 is pending before the Court, the Plaintiff in O.S.No.67 of 22/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 2003 is alleged to have entered into a registered lease agreement with the Sri Gangaa Educational Welfare Trust for the entire extent in S.No.828/1, which means full extent of 5 Acres and 26 Cents. Therefore, it is fraudulent. Also, the learned Senior Counsel for the Respondents invited the attention of this Court to the evidence of P.W-1 and P.W-2 in O.S.No.240 of 2004 (which was originally numbered as O.S.No.67 of 2003) which is a suit for specific performance. The learned Senior Counsel for the Respondents also invited the attention of this Court to the discussion of the evidence by the learned Appellate Judge in A.S.No.14 and 15 of 2012 whereby on proper appreciation of evidence, the learned Sub Judge, Perundurai in Paragraph Nos.17 to 20 had discussed the evidence and placed on the citations relied by the Appellant as well as the Respondents, had rejected the claim of the Respondents (Plaintiff before the trial Court) and thereby, set aside the grant of decree by the learned District Munsif-cum-Judicial Magistrate. It is the further contention of the learned Senior Counsel for the Respondents in both the Second Appeals that the first Appellate Court had on proper appreciation of evidence arrived at a conclusion in which case this Court sitting in Second Appeal cannot set aside the finding particularly when it is on proper appreciation of evidence and well- reasoned Judgment. Therefore, the learned Senior Counsel prayed this Court to dismiss both the Second Appeals as having no merits.
23/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013
20. The learned Counsel for the Appellant Mrs.V.Srimathi submitted her reply to the arguments of Mrs.Chitra Sampath, learned Senior Counsel for the Respondents. The learned Counsel for the Appellant invited the attention of the Court to the additional type set filed by the learned Senior Counsel for the Respondents in page No.50 which is the Sale Agreement marked as Ex.A1. In the recital, it is stated that on the date of Sale Agreement Rs.60,000/- was paid. Also, it is stated that on the date of the Sale Agreement i.e., 02.07.2001 possession was handed over to the purchaser and a period of one year and nine months was granted for the payment of balance of sale consideration. The recitals also stated that in case of failure to execute the Sale Deed, the purchaser shall approach the Court for appropriate relief.
21. It also contained the thumb impression of the seller and signature of the seller, the first Defendant C.Thangaraj. It also contains the thumb impression and signature of the purchaser. That is why the learned Sub Judge, Erode while disposing the case in O.S.No.67 of 2003, by a common judgment in O.S.No.34 of 2008 and O.S.No.240 of 2004 discussing the evidence had observed in Paragraphs No.18 to 20 which reads as under: 24/66
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 “18.Considering this aspect, as per the order of this Court, in I.A. No. 1058/2007 dated: 26.3.2008 the sale agreement, dated 2.7.2001 sent to the Handwriting Expert for comparison with the admitted documents and with the disputed signatures in the sale agreement, dated: 2.7.2001. After the execution of the disputed signatures in the sale Agreement, dated: 2.7.2001 and Promissory note, dated: 2.11.1998 allegedly executed by the 1st Defendant, which was marked as Ex.A.2 in O.S.No. 240/2004 and the admitted document submitted by the 1st Defendant, i.e., the Sale agreement, dated: 17.8.1990 were compared by the Forensic Sciences Department, Assistant Director, Documents Division in their letter, dated: 13.7.2009 they submitted a report is that, "Carefully examined by the undersigned experts in this Department, but it is not possible to offer any reliable opinion on the authorship of the red enclosed signatures stamped and marked Q1 to Q5 on a comparison with the red enclosed standard material similarly stamped and marked S-1 to S-8".
So, the Handwriting expert categorically submitted that not possible offer any reliable opinion on the admitted and disputed signatures by the 1st Defendant.
19. Further more, at the request of the Forensic Department this Court ordered to submit further additional documents that the admitted signatures and Thumb impression of the 1st Defendant. But, the 1st Defendant failed to submit additional documents with admitted signatures and Thumb impression of the 1st Defendant before this Court for further comparison. Hence, the I.A. No. 1058/2007 was closed on 26.10.2009, since additional documents not produced by the 1st Defendant.
20. At this juncture, to prove the sale agreement, dated 2.7.2001, the Plaintiff in O.S. No. 240/2004 side, the Attestor Mr.Anbalagan and the scribe in the Sale Agreement dated: 2.7.2001 Mr.K. Raja (Document Writer) were examined as P.W.2 and 3 respectively in O.S. No. 240/2004. On careful perusal of the evidence of the attestor P.W.2 and scribe P.W.3 in the sale agreement, dated 2.7.2001, they categorically stated that in their presence the Plaintiff in O.S.No.240/2004 and the 1st Defendant were entered into a sale agreement, dated 02.07.2001 and in their presence only, the 1st Defendant put his signature in the Ex.A-1 Sale agreement (in O.S.No.240 of 2004).”
22. After having filed I.A.No.1058 of 2007 which was allowed by the 25/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 Court as per order dated 26.03.2008, the Sale Agreement dated 02.07.2001 was sent to the Handwriting Expert for comparison with documents containing admitted signatures. The Forensic Sciences Department had sought for further documents to give valuable opinion. Accordingly, when the Court sought further documents from the first Defendant C.Thangaraj, but he did not furnish any documents containing admitted signatures. Therefore, the conduct of the Defendant was considered by the Court and I.A.No.1058 of 2007 was closed on 26.10.2009. The Plaintiff had discharged the burden on the Plaintiff by examining the attesting witnesses as P.W-2 and P.W-3 and proved the execution of the Sale Agreement dated 02.07.2001 under Ex.A-1. This fact was not considered by the learned First Appellate Judge while disposing the Appeal in A.S.No.14 of 2012 by judgment dated 28.09.2012, thereby set side the finding of the learned District Munsif-cum-Judicial Magistrate, Perundurai in a common judgment in O.S.No.34 of 2008 and O.S.No.240 of 2004, dated 20.01.2012. The learned Sub Judge, Perundurai, had not perused Ex.A-1 to arrive at a conclusion and had reversed the finding of the learned District Munsif-cum-Judicial Magistrate.
23. The learned District Munsif-cum-Judicial Magistrate, Perundurai, had on proper appreciation of evidence and on observation of the conduct of 26/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 the parties held that the first Defendant did not cooperate with the Court when the Forensic Expert had sought additional documents regarding admitted signatures. The first Defendant had not cooperated with the Court, Therefore, the petition filed by him for comparison of signatures and obtaining opinion from the Expert of the Forensic Department was closed. The Court had drawn adverse inference against the first Defendant. This fact was not at all considered by the learned Sub Judge, Perundurai while disposing of the Appeal in A.S.No.14 of 2012 and A.S.No.15 of 2012 in a common judgment dated 28.09.2012.
24. The learned Counsel for the Appellant also invited the attention of this Court to the Lease Deed executed by the first Defendant on 31.12.2002, which is only to defeat the Sale Agreement Deed. It is unnatural to find that the first Defendant, C.Thangaraj, (i) executed a Lease Deed in favour of C.Thangaraj/first Defendant himself on behalf of C.Thangaraj as the owner of the property and (ii) in favour of C.Thangaraj on behalf of Gangaa Educational Welfare Trust. Therefore, it is nothing but a Deed to defeat the Sale Agreement Deed. The Plaintiff in the suit in O.S.No.67 of 2003 which was renumbered as O.S.No.240 of 2004 had deposited the balance amount of sale consideration in the Court, Therefore, the question of readiness and 27/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 willingness raised by the Defendant does not arise. The suspicious circumstances was pointed out by the learned Senior Counsel for the Respondents that the Plaintiff had not sent any pre-suit notice calling upon the first Defendant to execute the Sale Deed. The Plaintiff had been repeatedly making oral demands for the first Defendant to come and execute the Sale Deed. When the Plaintiff had filed a suit and deposited the amount, the Defendant cannot now be heard to raise the defence of the Plaintiff's readiness and willingness.
25. The learned Sub Judge, Perundurai, failed to appreciate the evidence and the conduct of the parties before the Trial Court, and failed to appreciate evidence that the learned District Munsif-cum-Judicial Magistrate had properly analysed the evidence along with the circumstances surrounding the case including the conduct of the Defendant having disputed his signature, having denied the execution of Sale Agreement Deed had taken out an application to compare the signature and thumb impression to get Expert opinion from the Forensic Department. The said application was allowed by the learned District Munsif-cum-Judicial Magistrate. The first Defendant had furnished the document containing his admitted signatures. When it was compared, the Expert was unable to come to a conclusion. Therefore, the hand 28/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 writing Expert sought further documents containing admitted signatures for which the first Defendant did not co-operate with the Court, Therefore, the petition was closed. This fact on proper appreciation of evidence and on observation of the conduct of the parties was considered by the learned District Munsif-cum-Judicial Magistrate to arrive at a conclusion in favour of the Plaintiff in the suit, whereas the learned First Appellate Judge failed to properly appreciate the circumstances and the conduct of the first Defendant.
26. This fact was not considered by the learned First Appellate Judge while reassessing the evidence and all materials available before the learned District Munsif-cum-Judicial Magistrate. Thereby, the learned Sub Judge, Perundurai as Appellate Authority having reversed the judgment of the Trial Court, is erroneous.
27. The learned Counsel for the Appellant relied on the following rulings in support of the contention that the Defendant cannot be heard of his defence regarding readiness and willingness of the Plaintiff when the Plaintiff had deposited the balance sale consideration to prove his readiness and willingness:
(i) Balwan Singh Raghav vs. Dalip Kumar reported in 2019 SCC 29/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 OnLine P&H 709. The relevant paragraph of the aforesaid judgment is extracted hereunder:
“8. I am afraid the aforementioned argument is not sustainable for the simple reason that if a person who has denied the agreement to sell cannot be permitted to take the plea of readiness and willingness particularly when extensions and earnest money had been proved on record.”
(ii) Motilal Jain vs. Ramdasi Devi (Smt) and Others reported in (2006) 6 SCC 420. The relevant head note of the aforesaid judgment is extracted hereunder:
“Specific Relief Act, 1963 Section 16(c) - Specific performance of contract for sale of immovable property – Readiness and willingness to pay – Where major portion of the consideration (two-thirds in this case) was paid at the time of execution of the contract, held, his willingness to pay the remaining amount is apparent.”
(iii) Tmt.Kanjana Baskaran and Others vs. R.Sundaram and Another reported in 2023 SCC OnLine Mad 5637. The relevant paragraph of the aforesaid judgment is extracted hereunder:
“14. In a suit for specific performance, the basic principle of law is that in order to succeed and to enable the Plaintiffs to get entitled to the relief of specific performance of contract, Plaintiff must aver or prove that he is continuously ready and willing to perform his part of the contract, since the date of agreement till the date of hearing of the suit. Therefore, the burden lies on the Plaintiffs to prove the fact. It is also interesting to note that it is really the evidence that has to be appreciated and it may be oral, documentary or circumstantial and which may also be the evidence coming out of the conduct of both the parties which may have to be looked into.” 30/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013
(iv) Nazir Mohamed vs. J.Kamala and Others reported in (2020) 19 SCC 57. The relevant paragraphs of the aforesaid judgment is extracted hereunder:
“33.3. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
33.4. The general rule is, that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where : (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”
28. In the reported decision, the First Appellate Court failed to apply law to the facts of the case. Therefore, Paragraph No.33(4) squarely applies to the judgment of the First Appellate Court in this case. While cross examining the Plaintiff and the Plaintiff's witnesses, the learned Counsel for the Defendant before the learned District Munsif-cum-Judicial Magistrate had not 31/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 put suggestions that Ex.A1 is a fraudulent Deed. The passing of consideration is also proved by examining P.W-2, attesting witness.
29. The Appellate Court had committed error in placing the burden on the Plaintiff regarding the readiness and willingness. Once the balance amount is deposited before the Trial Court, the Defendant cannot be heard to question the Plaintiff's readiness and willingness as per the above ruling cited by the learned Counsel for the Appellant.
30. The reliance placed by the learned Senior Counsel for the Respondents on the judgment of the criminal Court will not have a bearing on the civil case, it will not serve any purpose by relying on the judgment passed by a criminal Court.
31. The learned Senior Counsel for the Respondents by way of reply to the submission of the learned Counsel for the Appellant submitted that the criminal Court judgment was relied by the learned Senior Counsel for the Respondents only to highlight the fact that the suits on which the Second Appeal has been filed was stage managed by Gangaa Educational Trust. The same Trust takes a contrary view before the criminal Court and again a 32/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 contrary view before the civil Court. Due to rivalry in Gangaa Educational Trust, these suits had been instituted after removal of K.S.Jagadeesan from the Board of Trustees of Gangaa Educational Trust.
32. Mrs.Chitra Sampath, learned Senior Counsel for the Respondents placed reliance on the following rulings in support of her submission:
(i) Chandrabhan (deceased) through Lrs and Others vs. Saraswati and Others reported in 2022 SCC OnLine SC 1273. The relevant paragraphs of the aforesaid judgment is extracted hereunder:
“33.The principles relating to Section 100 of the CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the 33/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 settled position of law.
(iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence”, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
34. In this case, it cannot be said that the First Appellate Court acted on no evidence. The Respondentss in their Second Appeal before the High Court did not advert to any material evidence that had been ignored by the First Appellate Court. The Respondentss also could not show that any wrong inference had been drawn by the First Appellate Court from proved facts by applying the law erroneously.”
(ii) Bhaskaran Nadar (died) vs. Kesavan Nadar (died) & others reported in 2010-1-L.W.422. The relevant paragraph of the aforesaid judgment is extracted hereunder:
“45.Under Section 16(c) of the Specific Relief Act 1963, the agreement holder has to plead and prove that he was ready and willing to perform his part of the contract. Under Section 20 of the Specific Relief Act, the relief of specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so. More particularly, where the performance of the contract would involve some hardship on the Defendant, whereas its non performance would involve no such hardship on the Plaintiff. Under those circumstances the court may not exercise its discretion. The surrounding circumstances would show that the first Defendant being a bachelor, wants to leave the property to the children of the deceased brother and Therefore, had cancelled the “Will” and has also adopted the second Defendant and earlier to that adoption had also executed a sale deed in favour of the second Defendant. The relationship of 34/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 the parties are so strained that he has to execute the above said documents to the children of the deceased brother. Therefore, a genuine doubt arises about the agreement of sale between the parties and the relief could be refused. In my considered view the performance of the contract would involve some hardship on the Defendants, whereas its non performance would involve no such hardship on the Plaintiff.”
(iii) K.Saroja vs. Valliammal and others reported in 1996 (2) MLJ 199.
The relevant paragraphs of the aforesaid judgment is extracted hereunder:
“18.In a suit for specific performance, it is for the Plaintiff to prove that there is a valid agreement in her favour and that she is entitled to get a decree as prayed for. Since it is a discretion of the court, even if there is an agreement, it does not follow that the Plaintiff is entitled to get a decree for specific performance. While considering the agreement, the court is entitled to consider the surrounding circumstances so as to arrive at a finding regarding the genuineness of the so-called agreement.
19.Ex.A-2 is the agreement admittedly executed by the first Defendant. In the written statement filed by the first Defendant, he admitted that he executed such agreement in favour of the Plaintiff.
He also said that the third Defendant who is a politically influential person in the locality, wanted the sale to be executed not only in respect of the plaint item but also other items belonging to him, and he under-took to settle the matter with the Plaintiff, and it was with that understanding, that Ex.A-2 was executed. So, here is a case where the executant and executee agreed that there is an agreement for sale. The person disputing the genuineness of the transaction is the second Defendant who has taken a sale deed from the owner himself. As against the said contention, the second Defendant says that it is a collusive transaction between the owner and the Plaintiff to defeat her rights, and, on the date when she got the sale deed, there was no such agreement, it should have been ante-dated. The first Defendant has not entered the box. The Plaintiff who claims to have taken the agreement has also not entered the box. Instead, her husband, the 5th Defendant, was examined as P.W.1. Before the institution of the suit, certain developments also took place? In Ex.A-3, the first Defendant 35/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 undertook to discharge certain debts and it is the case of the second Defendant that he received a sum of Rs.14,000 for the said purpose and one of the encumbrancers was the 4th Defendant. It is seen that the first Defendant did not discharge the debt and there was some misunderstanding between Defendants 2 and 3 and the first Defendant and, Therefore, the second Defendant was constrained to file a suit as O.S.No.935 of 1979 against the first Defendant. Before instituting the suit, the second Defendant had to discharge the debt of the 4th Defendant and obtain release even though payment was made to the first Defendant for the said purpose. So, the parties were not on good terms is clear, and the litigation was also pending.”
(iv) P.Sampoornam and others vs. L.T.Somasundaram and others reported in 2008 (2) CTC 382. The relevant paragraphs of the aforesaid judgment is extracted hereunder:
“18. The other reasoning creates a doubt in my mind whether an agreement of sale would have been executed by the Defendants in favour of the Plaintiffs. Further more, the Courts below have not considered the plea of the Defendants that there was no lessee in the suit property. This aspect has not been considered at all, even though a plea has been taken in this regard by the Defendants followed by the cross examination of P.W.1 in that regard. The Courts below have considered mainly that the signatures in Ex.A.1 and Ex.A.11 have not been denied by the Defendants and that for the notice, no reply has been sent.
19.The important issue is whether there was a lessee in the suit property which necessitated for extending the time for the purpose of executing the sale deed and the necessity for the endorsement under Ex.A.11. The relief of specific performance is a discretionary relief and the Courts have to exercise their discretion on sound and reasonable reasons. Even if a doubt arises whether it is probable or possible that an agreement of sale would have been executed at all, the discretionary relief shall not be granted. By analysing the matter in issue as referred to above, I am of the opinion that it is doubtful that the Defendants would have executed an agreement of sale with an intention to sell the suit property.
Further more, there is no reason for execution of Ex.A.11 36/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 endorsement since it has not been proved that there was a lessee in the suit property. Further more, after the endorsement dated 30.12.1990, the Plaintiffs would not have waited till the issuance of notice under Ex.A.2 dated 13.07.1996. The silence for nearly six years by the Plaintiffs causes much doubt whether there was a real agreement of sale between the Plaintiffs and the Defendants. Merely because the Defendants have accepted their signatures in the endorsement under Ex.A.11, conclusion could not be reached that the Defendants have entered into an agreement of sale with an intention to sell the suit property.”
(v) In 2022 SCC online SC 840 in the case of U.N.Krishnamurthy Vs. A.M.Krishnamurthy in Paragraph 45 the Hon'ble Supreme Court has held as follows:
“45. The Respondent Plaintiff has relied upon the notice dated 13.02.2003 and evidences of PW2 & PW3 to prove that he was always ready and willing to perform his part of the contract. Even though it may be true that the Respondent Plaintiff had deposited the balance sale consideration in court on 06.04.2010, it cannot be ignored that such deposit was made by him seven years after 15.3.2003, being the date by which the sale had to be concluded. No evidence has been adduced on behalf of the Respondent Plaintiff as to how the Respondent Plaintiff was in a position to pay or make arrangements for payment of the balance sale consideration within time. The Courts below also erred in not adjudicating upon this vital issue except to make a sweeping observation that, given that the Respondent Plaintiff was a businessman he had sources to arrange the balance funds.
Careful study of balance sheet dated 31.03.2003 of the Respondent Plaintiff would demonstrate that he did not have sufficient funds to discharge his part of contract.”
33. It is the submission of the learned Senior Counsel for the Respondents that the entire case of the Defendant is that the Plaintiff had stage 37/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 managed the case on behalf of the Gangaa Educational Trust. Gangaa Educational Trust is behind both the civil proceedings. The case arose out of a simple promissory note and the Plaintiff claims that the amount on promissory note was handed over to Ramamoorthi. The said Ramamoorthi was not examined as a witness before the Trial Court. Therefore, the learned Senior Counsel prays this Court to dismiss these appeal as having no merits.
34. Heard Mrs.V.Srimathi, learned Counsel for the Appellant in both the Appeals and Mrs.Chithra Sampath, learned Senior Counsel for Mr.V.Anandhamoorthy, learned Counsel for the Respondents 1 and 2 in S.A.No.470 f 2012 and Respondents in S.A.No.540 of 2013.
35. The parties in this Second Appeal will be referred to as per their status in the suit before the learned District Munsif-cum-Judicial Magistrate, Perundurai. The Appellant in the Second Appeal No.540 of 2013 is the Plaintiff in O.S.No.240 of 2012 and the Appellant in the Second Appeal No.470 of 2013 is the Plaintiff in O.S.No.34 of 2008. Therefore, they will be referred to as per their status before the trial Court.
36. Perused the evidence of P.W-1 to P.W-3, D.W-1 and D.W-2, the 38/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 documents under Ex.A-1 and Ex.A-2, Ex.B-1 to Ex.B-12 and Ex.X-1 in O.S.No.240 of 2004, the evidence of P.W-1 and P.W-2, D.W-1 and D.W-2, the documents under Ex.A-1 and Ex.A-5, Ex.B-1 to Ex.B-6 and Ex.C-1 and Ex.C- 2 in O.S.No.34 of 2008, the judgments dated 20.01.2012 passed in O.S.Nos.240 of 2004 and O.S.No.34 of 2008 by the learned District Munsif- cum-Judicial Magistrate, Perundurai, and the judgment dated 28.09.2012 in A.S.Nos. 14 and 15 of 2013 passed by the learned Sub Judge, Perundurai.
37. On perusal of the written statement filed by the Defendant-1 Thiru. C.Thangaraj, it is found that he had denied the execution of the sale agreement deed dated 02.07.2001. He had also denied handing over the possession of the property to the Plaintiff. He had denied the payment of advance amount of Rs.60,000/- on 02.07.2001 as well as the claim that the Plaintiff had discharged the debt of the Defendant-1, C.Thangaraj who had borrowed the amount from N.Ramamoorthi from Vilarasampatti, Naal Road under a promissory note dated 02.11.1998.
38. Defendant-1 as D.W-1 in his examination-in-chief filed as affidavit had stated that the Plaintiff in his evidence as well as in the pleadings had mentioned about paying Rs.60,000/- to one N.Ramamoorthi towards the 39/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 debt owed to N.Ramamoorthi by the Defendant-1, C.Thangaraj. It was cleared by the Plaintiff as payment of the advance money for the purchase of property for which the sale agreement was entered into on 02.07.2001. This has been denied by the Defendant-1 as D.W-1 in his examination in chief which was filed as affidavit. Also, he had claimed in the affidavit that he did not know any person by name N.Ramamoorthi .
39. When the Defendant had disputed the contention of the Plaintiff in the plaint itself, it is the duty of the Plaintiff to clear the doubt arising on the claim of execution of sale agreement deed by examining the witnesses cogently. Ex.A-2 is the promissory note dated 02.11.1998 alleged to have been executed by Defendant-1 C.Thangaraj. It was marked through the evidence of Plaintiff as P.W-1. The Plaintiff failed to examine the said N.Ramamoorthi despite claiming that he had settled the dues of the Defendant-1 towards N.Ramamoorthi as part performance for the sale agreement specifically towards advance amount on the date of sale agreement dated 02.07.2001. Therefore, as per the written statement of the Defendant, the Plaintiff had not discharged the burden cast upon him and denied the pleadings of the Plaintiff. Merely marking promissory note will not be considered as discharging the burden of proof. When the Defendant in his pleadings had denied the 40/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 execution of Ex.A-1 i.e., sale agreement deed, the Plaintiff relied on promissory note alleged to have been executed by first Defendant in favour of one N.Ramamoorthi cannot be Defendant-1. In his written statement, the first Defendant claimed that he did not know any person by name N.Ramamoorthi. Therefore, it is for the Plaintiff to have proved part performance of payment of Rs.60,000/- towards the debt of the Defendant-1 towards N.Ramamoorthi. However, that part of the evidence is not available in the evidence of the Plaintiff. On the insistence of the Court, the Plaintiff is said to have deposited the balance of sale consideration of Rs.34,680/- in the Court of the learned District Munsif-cum-Judicial Magistrate. That alone cannot be considered sufficient to prove that the Plaintiff was ready and willing to perform his part of the contract. On the date of examination of Plaintiff as P.W-1 on 22.10.2010, he claimed that his monthly income was Rs.3,000 to Rs.4,000/- and that the sale agreement deed was not registered.
40. The Plaintiff in his evidence claimed that N.Ramamoorthi referred by him in the plaint and in his evidence that he is a neighbour to his father in law. If that be so, the Plaintiff ought to have examined the said N.Ramamoorthi regarding Ex.A-2 promissory note in order to prove the discharge of debt of Defendant-1 and to prove the part payment towards sale 41/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 agreement under Ex.A-1 by Plaintiff. Since that was not done, the claim of the Plaintiff as P.W-1 that he had paid Rs.60,000/- on 02.07.2001 is to be treated as not proved. Merely examining the scribe and the attesting witness will not help the Plaintiff's contention that he had executed sale agreement deed with the Defendant-1. During the examination, P.W-3 the scribe had stated that the particulars for the property were stated by the Defendant-1 and P.W-2 the attesting witness stated that he had seen both the parties affixing their signatures and thumb impression on the sale agreement Ex.A-1. P.W-2 is Anbazhagan and P.W-3 is Raja. In the cross examination of P.W-2 and P.W-3, it is found that the P.W-2 claims that he is relative of Jayalakshmi Natarajan. Natarajan is his cousin and is running the Gangaa Educational and Welfare Trust. Therefore, the claim of the Defendant-1 that the suit had been instituted on behalf of the Gangaa Educational and Welfare Trust by the Plaintiff is found probable. P.W-3 is Raja who is the scribe of Ex.A-1. Also P.W-3, Raja in his cross examination claims ignorance of the promissory note. Merely examining P.W-2 and P.W-3 to prove the case of the Plaintiff will not help the case of the Plaintiff particularly when the Defendant had denied the execution of sale agreement deed on 02.07.2001. Therefore, the Plaintiff ought to have examined N.Ramamoorthi to whom he had paid Rs.60,000/- towards the discharge of the loan availed by the Defendant-1 from N.Ramamoorthi. Only 42/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 upon examining the said N.Ramamoorthi the claim of part performance of contract can be proved by the Plaintiff. Until otherwise N.Ramamoorthi was examined, the evidence of Plaintiff is found not to be satisfactory. He had not caused the burden upon him to prove the averments of the Plaintiff and disprove the claim of the Defendant-1. The learned trial Judge had only placed reliance on the conduct of the Defendant-1 in having not furnished additional document as sought by the Forensic expert regarding the comparison of signatures with admitted signatures in order to give a finding regarding the handwriting. The petition in I.A.No.1058 of 2007 in O.S.No.240 of 2004 moved by the Defendant-1 in O.S.No.240 of 2004 disputes the contention of the Plaintiff in the plaint.
41. The first Appellate Court had on proper appreciation of evidence arrived at a conclusion that the Plaintiff had not proved the sale agreement deed dated 02.07.2001 since he failed to examine N.Ramamoorthi to whom he had settled the loan availed by Defendant-1. Therefore, the learned first Appellate Judge disbelieved the evidence of the Plaintiff. Even though, the Plaintiff had proved the execution of Ex.A-1 through scribe and attesting witnesses, it was not found by the learned first Appellate Judge that the Plaintiff had discharged the burden cast upon him. Therefore, the finding 43/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 given by the learned District Munsif cum Judicial Magistrate, Perundurai was set aside and it was rightly so. When part payment was not proved, the claim of possession by the Plaintiff also is found not to be true.
42. The ruling relied on by the learned Counsel for the Appellant in Balwan Singh Raghav vs. Dalip Kumar reported in 2019 SCC OnLine P & H 709 will not help the case of the Plaintiff in O.S.No.240 of 2004 as the Plaintiff before the trial Court failed to prove that he entered into sale agreement with the first Defendant. As per the reported ruling, the Defendant who denied the agreement to sell cannot be permitted to take the plea of readiness and willingness, particularly, when endorsement and earnest money had been proved on record. Here the initial payment of Rs.60,000/- itself had not been proved. The Plaintiff claimed that he paid Rs.60,000/- to one Ramamoorthi, son of Nallappa Gounder to discharge the debt of the first Defendant. The said Ramamoorthi had not been examined as a witness before the trial Court. The money transaction had not been seen either by the attesting witness P.W-2 Anbazhagan or the scribe of the document P.W-3 Raja. Under those circumstances, the ratio of this ruling will not help the Plaintiff to get a decree for specific performance when the Plaintiff had not proved his case. The Plaintiff had not examined Ramamoorthi the person to 44/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 whom he is alleged to have paid Rs.60,000/- on behalf of the first Defendant to discharge the first Defendant's loan towards part performance of specific performance for sale of the property. The Defendant disputes his own signature and disputes the existence of Ex.A-1 sale agreement. Under those circumstances, the materials in cross examination of P.W-2 attesting witness and P.W-3 scribe had been impeached by the learned Sub Judge, Perundurai. Therefore, the ruling of Punjab Haryana High Court cited before the learned Sub Judge, Perundurai, in Balwan Singh Raghav vs. Dalip Kumar reported in 2019 SCC OnLine P & H 709 will not help the Plaintiff in O.S.No.240 of 2004 and hence, it is rejected.
43. The ruling relied on by the learned Counsel for the Appellant in (2006) 6 SCC 420 [Motilal Jain vs. Ramdasi Devi (Smt) and Others] is the case where major portion of the sale consideration that is 2/3rd was paid at the time of execution of contract and only a small amount has to be paid to execute the sale deed. Therefore, the Honourable Supreme Court had held that willingness to pay the remaining amount is apparent. Here, the initial payment of Rs.60,000/- itself had not been proved by the Plaintiff. The Plaintiff claims that he paid to Rs.60,000/- as advance for the sale amount to one Ramamoorthi to whom the first Defendant owe repayment of loan of Rs.60,000/-. Whether 45/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 the amount was paid to Ramamoorthi had not been proved. P.W-2 attesting witness Anbazhagan and P.W-3 scribe Raja admitted that they have not seen the money being given by the Plaintiff to the Defendant. Under those circumstances, merely the ruling cited by the learned Counsel for the Appellant will not help the case of the Plaintiff in O.S.No.240 of 2004 to get a decree for specific performance. Hence, it is rejected.
44. The ruling of a Division Bench of this Court relied on by the learned Counsel for the Appellant reported in 2023 SCC OnLine Mad 5637 [Tmt.Kanjana Baskaran and Others vs. R.Sundaram and Another] will not help the case of the Plaintiff/Appellant. As per the reported ruling, in a suit for specific performance, the basic principle of law is that in order to succeed and to enable the Plaintiffs to get entitled to the relief of specific performance of contract, the Plaintiff must aver or prove that he is continuously ready and willing to perform his part of the contract. Here, the Plaintiff failed to prove the initial payment of Rs.60,000/- on the date of alleged sale agreement. Under those circumstances, the ruling cited by the learned Counsel for the Appellant in O.S.No. 240 of 2004, will not help the Plaintiff in O.S.No. 240 of 2004 to get the relief under the specific performance of contract for sale of property. Hence, it is rejected.
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45. The ruling reported in (2020) 19 SCC 57 [Nazir Mohamed vs. J.Kamala and Others] cited by the learned Counsel for the Plaintiff in O.S.No.240 of 2004 deals with Second Appeal arising out of specific performance of contract for sale and it deals with stages of the Second Appeal. When there is concurrent finding, substantial question of law does not arise. Here the substantial question of law had been framed by the then learned Judge already. In the above ruling cited by the learned Counsel for the Plaintiff in O.S.No.240 of 2004, this Court had issued guidelines for disposal of Second Appeal. That will not help the case of the Plaintiff in O.S.No. 240 of 2004. Hence, it is rejected.
46. In reported decision in Chandrabhan (deceased) through Lrs and Others vs. Saraswati and Others reported in 2022 SCC OnLine SC 1273 the trial Court decreed the suit. The Appellate Court, on re-appreciation of evidence had granted a decree. Therefore, there is no infirmity. The above ruling is applicable to the facts of this case before this Court. Here is a case the Plaintiff failed to produce the witness to whom he had paid the loan of Rs.60,000/- on behalf of the Defendant and for balance of sale consideration, he had sought one year nine months period. Here the substantial questions of 47/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 law had already been framed by the then learned presiding Judge. Here there is substantial question of law raised by the party. It is not a concurrent finding. It is a reversal of the judgment of the learned District Munsif-cum-Judicial Magistrate, Perundurai by the learned Sub Judge, Perundurai. The learned District Munsif-cum-Judicial Magistrate, Perundurai had failed to appreciate the evidence of the parties in proper perspective and had granted decree for specific performance of contract considering mechanically the fact that the Plaintiff had proved his case by examining the attesting witness as P.W-2 and scribe as P.W-3 but not considering the materials in cross-examination of P.W- 1 to P.W-3 and circumstances of the case. The learned Sub Judge, Perundurai, had considered the materials in cross-examination of P.W-1 to P.W-3 and the circumstances of the case thereby rejected the claim of Plaintiff. The finding of the learned Sub Judge, Perundurai, is found to be well reasoned judgment as per the reported ruling in Chandrabhan (deceased) through Lrs and Others vs. Saraswati and Others reported in 2022 SCC OnLine SC 1273.
47. In the reported ruling in 2010-1-L.W.422 [Bhaskaran Nadar (died) vs. Kesavan Nadar (died) & others] the ratio laid down by the learned Single Judge of this Court based on the ruling of the Hon'ble Supreme Court that under Section 16(c) of the Specific Relief Act, 1963, the agreement holder 48/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 has to plead and prove that he was ready and willing to perform his part of the contract. As per Section 20 of the Specific Relief Act, the discretion vest with the Court. It is not necessary that in all cases of Specific Performance Act, the Court has to grant decree for specific performance of contract. It is the discretionary relief by the Court. Here, the discretionary relief cannot be exercised as the Plaintiff had not proved the case for specific performance of contract regarding payment of advance of Rs.60,000/- to Ramamoorthi whom the Plaintiff claims had lend money to Defendant-1 which is disputed by the Defendant-1. As per this ruling, the judgment of the learned District Munsif- cum-Judicial Magistrate, Perrundurai, is found erroneous. The judgment of the learned Sub Judge, Perundurai, is found well reasoned judgment on proper appreciation of evidence and attending circumstances of this case as per the above ruling.
48. The reported ruling in 1996 (2) MLJ 199 [K.Saroja vs. Valliammal and others] applies to the facts of this case. Existence of an agreement alone is not sufficient to get a decree. The Court has to look into the surrounding circumstances to see whether the agreement is genuine. Here, Ex.A-1 was disputed by the Defendant-1. He had taken I.A.No.1058 of 2007 to send the document to Forensic Expert for opinion. The Defendant-1 had 49/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 forwarded the documents but the same was returned seeking further documents containing admitted signature. It is the claim of the Defendant-1 that he was not a party to the sale agreement deed. The sale agreement deed is not a bona fide sale agreement deed. Under those circumstances, the learned District Munsif-cum-Judicial Magistrate, Perundurai, had decreed the suit considering the fact that the Plaintiff in the suit had examined attesting witness as P.W-2 and the scribe of the document as P.W-3. They had in their cross- examination admitted that they had not seen the Plaintiff transferring money to the Defendant-1. Therefore, the Appellate Court felt that the Plaintiff had not proved his case and dismissed the suit. The above reported ruling is applicable to this case. The arguments of the learned Counsel for the Appellant is rejected and the arguments of the learned Senior Counsel for the Respondents is accepted in the light of this ruling and in the facts of the case before the learned District Munsif-cum-Judicial Magistrate, Perundurai, the decree of the learned District Munsif-cum-Judicial Magistrate, Perundurai, is erroneous as per this ruling. The finding of the learned Sub Judge, Perundurai is found well reasoned judgment in the light of the above ruling.
49. The ruling reported in 2008 (2) CTC 382 [P.Sampoornam and others vs. L.T.Somasundaram and others] applies to the facts of this case. 50/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 Here, the Plaintiff as P.W-1 in cross-examination stated that he paid Rs.60,000 to Ramamoorthi son of Nallappa Gounder towards the loan availed by the first Defendant. The Plaintiff had filed the suit without filing any document seeking the Defendant to come and execute the sale deed. Pre-suit legal notice was not issued by the Plaintiff which creates doubts in the minds of the Court as the Plaintiff claimed that he had paid Rs.60,000 to Ramamoorthi towards the discharge of the debt of the Defendant-1. Expecting the Defendant-1 to receive the balance sale consideration and execute the sale deed. Since there was no sale agreement, as per the Defendant-1, then the Plaintiff has to prove the sale agreement. Here in this case, the Plaintiff had examined the attesting witness Anbazhagan as P.W-2 and the scribe Raja as P.W-3. They had admitted in their cross-examination that they had not seen the Plaintiff handing over money to the Defendant-1. Therefore, the Plaintiff failed to prove his case that he was ready and willing to perform his part of contract. When the Plaintiff had not proved his case, the learned District Munsif-cum-Judicial Magistrate had decreed the suit on the ground that the Plaintiff had examined the attesting witness P.W-2 and the scribe P.W-3. The learned District Munsif-cum-Judicial Magistrate failed to appreciate the evidence particularly the evidence in cross examination of the witnesses P.W-1 to P.W-3 where P.W-2 and P.W-3 admitted that the evidence was impeached. Therefore, the 51/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 grant of decree by the learned trial Court is found erroneous. The learned Appellate Judge had on reappreciation of evidence dismissed the suit reversed the judgment of the learned District Munsif-cum-Judicial Magistrate. Therefore, the discretionary relief was exercised fairly by the learned Sub Judge, as Appellate Authority. As per the reported ruling, grant of decree for specific performance is a discretionary relief. Based on the above ruling, this Court rejected the claim of the Appellant to set aside the judgment of the first Appellate Court and grant a decree.
50. The ruling reported in 2022 SCC OnLine SC 840 [U.N.Krishnamurthy Vs. A.M.Krishnamurthy] applies to the facts of this case. Here, the Plaintiff had not established his case that he had parted with Rs.60,000/- as advance amount and the balance amount is to be paid in within one year and nine months. He had not issued statutory notice to Defendant seeking him to execute the sale deed prior to filing of the suit. Under those circumstances, a claim of the Plaintiff that he was ready and willing to perform his part of the contract cannot at all be accepted as the Plaintiff was earning Rs.3,000/- to Rs.4,000/- per month. Therefore, the claim made by the Plaintiff that he deposited the balance amount in Court will not help the Plaintiff to get a decree. The Plaintiff failed to prove that he paid Rs.60,000/- to 52/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 Ramamoorthi to whom the Defendant-1 owed Rs.60,000/-. In the absence of examination of Ramamoorthi and in the absence of pre-suit notice, the claim of the Plaintiff does not inspire confidence of the Appellate Judge, therefore, the claim was rejected by the first Appellate Court Judge. The finding of the first Appellate Court Judge is proper as per the above reported ruling.
51. Further, the Plaintiff had marked only two documents Ex.A-1 and Ex.A-2. Ex.A-1 is the sale agreement Deed and Ex.A-2 is the promissory note alleged to have executed by the Defendant-1 in favour of one N.Ramamoorthi which was claimed by the Plaintiff to have been settled by the Plaintiff towards part performance of sale agreement. The first Appellate Court was not in error when the first Appellate Court had observed that Plaintiff had not discharged the burden cast upon him when the Defendant-1 had in the written statement specifically denied availing loan from N.Ramamoorthi specifically stated that he did not know the person named N.Ramamoorthi. Therefore, merely upon examining the scribe Raja as P.W-3 and examining one of the witnesses P.W-2 who attested the sale agreement the burden cast upon the Plaintiff cannot be treated as discharged by the Plaintiff. The burden is heavy on the Plaintiff. He has to prove that he had paid Rs.60,000/- on behalf of Defendant-1 to N.Ramamoorthi towards payment of discharge of loan by 53/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 Defendant-1 to N.Ramamoorthi. When that part of the evidence was lacking and during the cross examination P.W-2 having admitted that he is the co- brother of Jayalakshmi Natarajan a member of Gangaa Educational and Welfare Trust, the allegation made in the written statement that the suit has been instituted at the instance of Gangaa Educational and Welfare Trust is found to be justified. The surrounding circumstances and evidence also supports the claim of the Defendant-1.
52. Also, one Azhagappan, the attesting witness to the sale agreement deed dated 02.07.2001 under Ex.A-2 was examined as P.W-2. He had supported the claim of the Plaintiff regarding execution of the sale agreement deed between the Plaintiff and Defendant-1 on 02.07.2001. In the cross examination, he claims that he had not seen the Plaintiff handing over the advance amount to the Defendant. Further, he would state in his cross examination that he is related to the persons – Natarajan and Jayalakshmi Natarajan, who are running the Gangaa Higher Secondary School and only on the request of Natarajan, he had accompanied the Plaintiff to the office of the scribe who had prepared Ex.A-1. Ex.A-1 is a typed document of sale deed. Raja, the scribe who prepared Ex.A-1 was examined as P.W-3. He had also supported the claim of Plaintiff/Jagadeesan. In his cross examination, P.W-3 54/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 the scribe, Raja had stated that the instructions to prepare the sale agreement deed was given by the Plaintiff/Jagadeesan. Also he had stated that based on the information furnished by the first Defendant/Thangaraj he had prepared the sale agreement deed. To the pointed question, whether money was exchanged between the Plaintiff and Defendant-1, he had categorically stated that in his presence, no transaction taken place. Therefore, the claim made by the Plaintiff that he paid Rs.60,000/- on the date of sale agreement had not been established. P.W-2 the attestor also stated that in his presence no money was exchanged. Under those circumstances, the learned District Munsif-cum- Judicial Magistrate, Perundurai, had failed to appreciate the evidence in the cross examination of the witnesses, the attesting witness and the scribe P.W-2 and P.W-3. He had erroneously decreed the suit in the absence of sufficient materials available to decree the suit. He failed to appreciate the evidence in cross-examination. P.W-3 the scribe, Raja, had specifically denied the suggestion of the learned Counsel for the first Defendant that the first Defendant never appeared before him in his office to give instructions to prepare the sale agreement deed and he is deposing false evidence was denied by him. He had also stated in his cross examination that he does not recollect whether he had instructed them to bring the encumbrance certificate of the suit property. To the specific question on behalf of the Defendant by the learned 55/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 Counsel for the Defendant whether he had advised the Plaintiff and Defendant to bring the encumbrance certificate, he claims ignorance. To the specific question, whether he had faced departmental action for suspension of his license as document writer, he had stated that he had not faced any departmental action for creating a false document and deposing false evidence. The suggestion of the learned Counsel for the Defendant that P.W-3 had created false document under Ex.A-1 and deposing false evidence was denied by him. The application in I.A.No. 1058 of 2007 was filed in O.S.No. 240 of 2004 by the first Defendant when the suit was pending before the learned District Munsif-cum-Judicial Magistrate, Perundurai, to get opinion of the Forensic Sciences Expert regarding signature and thumb impression on Ex.A-1 since the first Defendant disputed the signature of the first Defendant in the sale agreement under Ex.A-1 and the petition was allowed by the learned District Munsif-cum-Judicial Magistrate, Perundurai. The admitted documents filed by the first Defendant was the sale agreement dated 17.08.1990. When the disputed document containing admitted signature were forwarded to the Forensic Sciences Department. The Assistant Director of Document Division of the Forensic Sciences Department had addressed a letter dated 13.07.2009 whereby “"Carefully examined by the undersigned experts in this Department, but it is not possible to offer any reliable opinion on 56/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 the authorship of the red enclosed signatures stamped and marked Q1 to Q5 on a comparison with the red enclosed standard material similarly stamped and marked S-1 to S-8".
So, the Handwriting expert categorically submitted that not possible offer any reliable opinion on the admitted and disputed signatures by the 1st Defendant.”
53. Based on the request of the Assistant Direct, Document Division, Tamil Nadu Forensic Sciences Department, Chennai, the Court had directed the first Defendant to furnish additional documents containing admitted signatures and thumb impression of the first Defendant. But the first Defendant failed to submit additional documents with admitted signature and thumb impression. Therefore, I.A.No.1058 of 2007 was closed by the learned District Munsif-cum-Judicial Magistrate, Perundurai, as per order dated 26.10.2009 as the first Defendant failed to produce additional documents and thumb impression for comparison by the expert. Under those circumstances, Ex.A-1 is to be presumed to be a sale agreement which is even though disputed by the first Defendant had not been disproved. At the same time, the Plaintiff as P.W-1 is duty bound to prove that sale agreement is valid and it came into existence as claimed by the Plaintiff. The Plaintiff as P.W-1 in his cross examination stated that he had not issued presuit notice, directing the Defendant to execute the sale deed in continuation of the recitals in Ex.A-1 57/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 sale agreement deed. Further, P.W-1 Jagadeesan in his cross examination admitted that his monthly income was between Rs.3,000/- and Rs.4,000/-. On the date of execution of the sale agreement, he had paid Rs.60,000/-, which was readily available with him in his house. For the balance of sale consideration of Rs.34,000/-, it was difficult for him. Therefore, he sought one year period for payment of balance of sale consideration. The sale agreement was not registered.
54. It is the specific admission of the Plaintiff/Jagadeesan as P.W-1 that he is a real estate broker. Therefore, it is presumed that he has good rapport with document writers like P.W-3 and he was aware of the real estate business. He had created document. That is why, he did not issue pre-suit notice to the Defendant-1 directing him to execute the sale deed. He has rushed to Court without issuing notice. In the evidence of first Defendant, he had stated that the value of the property is more than Rs.7,00,000/- on the date of sale agreement. In the evidence of P.W-1 Jagadeesan admitted that based on sale agreement deed under Ex.A-1, he had executed lease deed in favour of the Gangaa Higher Secondary School. The learned Appellate Judge had on proper appreciation of evidence rejected the claim of the Plaintiff in O.S.No.34 of 2008 Gangaa Educational Welfare Trust by its Secretary Saraswathi 58/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 Ganapathy regarding possession and seeking permanent injunction against Defendant-1/C.Thangaraj. C.Thangaraj is the owner of the property as on the date of execution of Ex.A-1. Lease Agreement had been entered into with Jagadeesan/Plaintiff who had filed the suit in O.S.No.240 of 2004 for specific performance. Therefore, the Plaintiff/Jagadeesan in O.S. No.240 of 2004 is a real estate broker. He had filed the suit for specific performance without issuing pre-suit notice to the Defendant-1/C.Thangaraj seeking to execute the sale deed. A person who had in his evidence claimed that with great difficulty he had paid Rs.60,000/-, with great difficulty he had to pay the balance of Rs.34,000, therefore, he sought one year and nine months period for execution of the sale deed and a person who claims that he has monthly income between Rs.3,000/- and Rs.4,000/- claims that he was ready and willing to perform his part of the contract without issuing statutory notice had instituted the suit. The same person had entered into lease deed with the Gangaa Higher Secondary School for 10 years based on the sale agreement deed. Therefore, the claim made by him that he was ready and willing to perform his part of the contract is not true, without issuing pre-suit notice, he had instituted the suit. The witnesses P.W-2 and P.W-3 who supported his claim were procured by him. But in cross-examination the attesting witness admitted that he is a relative of Jayalakshmi Natarajan, the person who is the owner of the School and he had 59/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 stated clearly that in his presence, no exchange of money took place in the office of the scribe, where he had affixed his signature P.W-2 Ambazhagan, the attesting witness. Similarly, P.W-3 Raja, the scribe also admitted that in his presence no money transaction took place between the Plaintiff and Defendant. Under those circumstances, the claim made by the Plaintiff that he had paid Rs.60,000/- to Ramamoorthi to whom Defendant-1 owed Rs.60,000/- on execution of Ex.A-1 is found doubtful and suspicious especially when the said Ramamoorthi was not examined as a witness on the side of the Plaintiff which the learned District Munsif-cum-Judicial Magistrate failed to appreciate from the circumstances available in the evidence. He had mechanically admitted the statements in the depositions as the Plaintiff had proved his claim by examining attesting witness and the scribe ignoring the fact that the attesting witness and the scribe in their cross examination admitted that they had not seen any exchange of money between the Plaintiff and Defendant in the office of the scribe. Therefore the claim made by the Plaintiff that he paid Rs.60,000/- and got a sale agreement deed is found unacceptable on appreciation of evidence. The substantial questions of law framed by the Court at the stage of admission that inspite of unimpeachable evidence of P.W- 2 and P.W-3 itself is found erroneous. P.W-2 and P.W-3 had been impeached by cross-examination by the learned Counsel for the Defendants where they 60/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 had clearly admitted in their presence no money transaction had taken place.
55. The Court below had not erred in relocating the burden of proof on the Plaintiff especially when he had claimed discharged same by proving his possession. The possession is claimed by the School. The School had taken a lease deed from a real estate broker, the Plaintiff in O.S.No.240 of 2004. The Plaintiff in O.S.No.34 of 2008 claims to be in possession of the property in dispute based on a lease deed entered into with P.W-1 in O.S.No.240 of 2004 who is a real estate broker and not the true owner. Therefore, the learned Sub Judge, Perundurai, had on re-appreciation of evidence rejected the lease deed. A person who claims to be in possession based on lease deed, not obtained from the true owner cannot maintain a suit for bare injunction against true owner. If the lease deed had been obtained from true owner, Defendant-1, C.Thangaraj, then they can maintain the suit for permanent injunction. The Plaintiff School cannot be presumed to be in lawful possession even though the lease deed was a registered lease deed. Ex.A-1 sale agreement deed is disputed by the Defendant-1 in O.S.No.240 of 2004. When the scribe was confronted regarding presence of the first Defendant, he was unable to answer cogently, but he denied the suggestion that the first Defendant had not appeared before him. The scribe had admitted in cross- 61/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 examination that he had received Rs.500/- for preparation of the sale agreement deed based on the instructions of the Plaintiff. But he had not issued receipt which he ought to have issued as a licensed document writer. Moreover, Ex.A-1 is not a registered sale agreement deed. The claim made by the Plaintiff/Jagadeesan in O.S.No.240 of 2004 that he had paid Rs.60,000/- to one Ramamoorthi son of Nallappa Gounder to whom Defendant-1 C.Thangaraj owed Rs.60,000/-. The said Ramamoorthi had not been summoned or examined by the Plaintiff/Jagadeesan in O.S.No.240 of 2004 to prove that he had paid the advance to C.Thangaraj/first Defendant who owed Rs.60,000/- to Ramamoorthi. The said Ramamoorthi had not been examined as a witness. Therefore, the claim made by the Plaintiff that he paid Rs.60,000/- which was readily available with him is found fictitious and unbelievable. In the absence of evidence that the sale agreement had been duly executed the specific performance cannot be enforced by a Court of law. The learned District Munsif-cum-Judicial Magistrate, had erroneously and mechanically arrived at a conclusion that the Plaintiff's claim had been proved by the scribe and the attesting witness P.W-3 and P.W-2 and mechanically granted a decree. Whereas the learned Sub Judge, Perundurai on re- appreciation of evidence with the available materials before the learned District Munsif-cum-Judicial Magistrate on proper appreciation of evidence 62/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 based on circumstances available in the evidence rejected the claim of the Plaintiff in O.S.No.240 of 2004 for specific performance of contract for sale and the claim made by the Plaintiff in O.S.No. 34 of 2008 for permanent injunction as the possession claimed by the Plaintiff/Saraswathi Ganapathy in O.S.No. 34 of 2008 is based only on a lease agreement obtained from a person who is not the owner of the property. Therefore, both the suits had been dismissed by the learned Appellate Judge on proper appreciation of evidence.
56. In the light of the above discussion from paragraphs 36 to 55, the substantial question of law-1, whether the Court had misdirected itself in law by overlooking question of possession and posing a wrong question unto itself is found not true. The Court had not misdirected. The Appellate Court had properly appreciated the evidence. It has not overlooked the question of possession and it had properly appreciated the possession is unlawful and illegal. Therefore, the suit for injunction cannot be maintained. Accordingly, the Substantial Question of Law-1 is answered against the Plaintiff in O.S.No.34 of 2008 and O.S.No.240 of 2004.
57. In the light of the above discussion from paragraphs 36 to 55, the Plaintiff had not discharged the burden cast upon him. In civil suits, the 63/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 burden is always on the Plaintiff to prove the averments in the plaint, it never shifts. The possession claimed by the Plaintiff in O.S.No.240 of 2004 is an illegal possession when he is unable to prove that he had paid Rs.60,000 on the date of execution of Ex.A-1. There are suspicious circumstances available in Ex.A-1 favouring the Plaintiff. Accordingly, the Substantial Question of Law-2 is answered against the Plaintiff in O.S.No.34 of 2008 and O.S.No.240 of 2004.
58. In the light of the above discussion from paragraphs 36 to 55, the Substantial Question of Law-3 is found erroneous. P.W-2 and P.W-3 are not unimpeached witnesses. In their cross examination they had admitted that they had not seen transfer of money from the hands of the Plaintiff to the Defendant-1. P.W-2 and P.W-3 had been impeached. Therefore, the first Appellate Court is right in arriving at a correct conclusion discarding the evidence of P.W-2 and P.W-3. Accordingly, the Substantial Question of Law-2 is answered against the Plaintiff in O.S.No.34 of 2008 and O.S.No.240 of 2004.
59. In the light of the above discussion from paragraphs 36 to 55, the Appellate Court had not erred. It was on strong reasoning based on evidence 64/66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:14 pm ) S.A.No.470 & 540 of 2013 and circumstances available in the evidence through oral evidence in the cross examination of witness P.W-1 to P.W-3 in O.S.No. 240 of 2004 and P.W-1 in O.S.No.34 of 2008. Accordingly, the Substantial Question of Law-4 is answered in favour of the Defendant and against the Plaintiff in O.S.No.240 of 2004 and O.S.No.34 of 2008.
In the result, both the Second Appeals are dismissed. The judgment and decree dated 28.09.2012 passed in A.S.Nos.14 and 15 of 2012 by the learned Subordinate Judge, Perundurai reversing the judgment and decree of the District Munsif-cum-Judicial Magistrate, Perundurai in O.S.No.240 of 2004 and O.S.No.34 of 2008, dated 20.01.2012 is confirmed. No costs. Consequently connected miscellaneous petitions are closed.
14.07.2025
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Index : Yes/No
Internet : Yes/No
Speaking/Non-speaking order
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S.A.No.470 & 540 of 2013
SATHI KUMAR SUKUMARA KURUP, J.,
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To:
1. The Subordinate Judge,
Perundurai.
2. The District Munsif-cum-Judicial Magistrate,
Perundurai.
3. The Section Officer,
V.R. Section,
High Court, Madras.
Judgment in
S.A.No.470 and 540 of 2013
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