Madras High Court
K.Kumar vs R. Sukumar on 13 February, 2019
Author: V.Bharathidasan
Bench: V.Bharathidasan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.02.2019
CORAM
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
S.A. 298 of 2019
and
C.M.P. 4511 of 2019
K.Kumar ... Appellant
Vs
1. R. Sukumar,
2. M.Kuppusamy
3. K.Marimuthu
4. K. Saroja
5. K.Uma Maheswari ... Respondents
Prayer:- This second appeal has been filed under Section 100
C.P.C., against the judgment and decree of District Court,
Tiruvannamalai, dated 26.11.2009 made in A.S.No.14/2009
confirming judgment and decree of Principal Sub-Court,
Tiruvannamalai dated 06.06.2007 made in O.S.No.38 of 2006.
For Appellant : Mr.S.Sounthar
For Respondents : Mr.J.Ramakrishnan for R1
JUDGEMENT
The second defendant in the Suit is the appellant herein. The 1st respondent/plaintiff herein has filed a suit for specific performance to execute a sale deed in pursuant to a sale http://www.judis.nic.in 2 agreement dated 07.03.2003. The Trial Court decreed the suit, and the appeal filed by the appellant herein was also dismissed by the lower appellate court. Now, challenging the same, the present Second Appeal has been filed.
2. According to the plaintiff, the father of defendants 2 to 5 was the absolute owner of the suit property and he has executed an agreement of sale in favour of plaintiff on 07.03.2003. The sale consideration was fixed at Rs.2,47,500/- and a sum of Rs.25,000/- has been paid as advance on the date of execution of the sale agreement. Thereafter, on 22.03.2003, the 1st defendant has received another sum of Rs.22,500/- and he has also made endorsement in the sale agreement. Even though the plaintiff was ready and willing to execute the sale deed, on receipt of valid sale consideration, the 1st defendant avoiding to execute the sale deed. Thereafter, in order to defeat the interest of the plaintiff, the defendants 2 to 5 have filed a suit for partition in O.S.No.150 of 2003 on the file of District Munsif Court, Tiruvannamalai and obtained the decree for partition. Thereafter, when the plaintiff has approached the defendants 2 to 5 to execute the sale deed, they refused to perform the part of contract. Hence, he has filed the Suit.
http://www.judis.nic.in 3
3. The 1st defendant has contested the suit on the ground that as per the decree passed in the suit for partition, the defendants 2 to 5 are also entitled to share in the suit property, and the 1st defendant is not the absolute owner of the property. Hence, the suit is not maintainable against the 1st defendant alone.
4. The Trial Court after considering the pleadings and entire evidence available on record, came to a conclusion that the sale agreement is true and valid one, and the Sale agreement is executed only by the 1st defendant, which is also binding on the other defendants 2 to 5. The decree obtained by the defendants 2 to 5 is only collusive, and decreed the suit. Being aggrieved with the judgment and decree, the 2nd defendant alone filed an appeal in A.S.No. 14 of 2009 on the file of District Judge, Tiruvannamalai, and the lower appellate court after thorough consideration of the entire materials available on record, had concurred with the findings of the Trial Court and held that the sale agreement is true and valid, and the agreement of sale is binding on the defendants 2 to 5, and dismissed the appeal. Now, challenging the above judgment and decree, the present second appeal has been filed by the appellant. http://www.judis.nic.in 4
5. Earlier, notice ordered to the respondents. Today, I have heard the rival submissions made by the learned counsel appearing for the appellant as well as the learned counsel appearing for 1st respondent and perused the materials available on record carefully.
6. On fact, both the courts below have concurrently held that the sale agreement is true and valid, and it is also binding on the defendants 2 to 5. A perusal of the judgment and decree passed in the partition suit, it could be seen that the suit has been filed after the execution of sale agreement, and it is the finding of the courts below that, the defendants 2 to 5 were well aware of the sale agreement, on the date of filing the suit, only in order to avoid the execution of sale deed, they have collusively filed a suit and obtained a decree, and held that the decree is binding on the defendants 2 to 5. I have carefully considered the entire materials, I do not find any perversity in the findings of the courts below and no substantial question of law arises for consideration in the Second Appeal. Now, it is submitted that in pursuant to the judgment and decree, a sale deed has been executed in favour of the plaintiff on 23.12.2011. Considering all the above circumstances, I find no merit in this appeal and it is http://www.judis.nic.in 5 only deserves to be dismissed. Accordingly, it is dismissed. No costs. Consequently, the connected Civil Miscellaneous Petition is closed.
13.02.2019 Index : Yes/No Internet: Yes/No Speaking/Non Speaking order rpp To District Judge, Thiruvannamalai.
http://www.judis.nic.in 6 V.BHARATHIDASAN, J., rpp S.A. 298 of 2019 and C.M.P. 4511 of 2019 13.02.2019 http://www.judis.nic.in