Madras High Court
Krishnamoorthy vs Nagammal on 30 June, 2015
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 05.09.2018
DELIVERED ON : 29.01.2019
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
S.A.(MD)Nos.559 and 560 of 2015
Krishnamoorthy .. Appellant in
S.A.(MD)Nos.559 and 560 of 2015
Vs.
1.Nagammal .. Respondent in
S.A.(MD)Nos.559 and 560 of 2015
2.Balasubramanian
Thillaiyammal (Died)
3.Jagadeesan
4.Gunasekaran
5.Rathinavalli
6.Savitri
7.Kala .. Respondents in
S.A.(MD)No.560 of 2015
Common Prayer :Second Appeals filed under Section 100 of Civil Procedure
Code, to set aside the Judgments and Decrees dated 30.06.2015 passed in
A.S.Nos.21 and 22 of 2014 on the file of the I Additional District Judge(PCR),
Tiruchirappalli confirming the Judgments and Decrees dated 19.02.2014 passed
in O.S.No.680 of 2001 and 539 of 1998 on the file of the I Additional Sub Judge,
Thiruchirappalli.
For Appellant : Mr.J.Anandhavalli
For Respondent No.1 : Mr.Raguvara Gopalan
For Mr.K.Prahakar
For Respondent No.2 : Mr.B.Brijesh Kishore
For Respondents 5 & 6 : Exparte in Lower Court
For Respondents 3, 4 & 7: No Appearance
http://www.judis.nic.in
2
COMMON JUDGMENT
Heard Mr.J.Anandavalli, learned counsel appearing for the appellant, Mr.Raguvara Gopalan for Mr.K.Prahakar, learned counsel appearing for the first respondent and Mr.B.Brijesh Kishore, learned counsel appearing for the second respondent.
2.These appeals filed against the common Judgment and Decree passed in A.S.Nos.21 and 22 of 2014 dated 30.06.2015 on the file of the I Additional District Judge(PCR), Tiruchirappalli confirming the common Judgment and Decree passed in O.S.Nos.680 of 2001 and 539 of 1998 dated 19.02.2014 on the file of the I Additional Sub Judge, Thiruchirappalli.
3.The appellant in S.A.(MD)No.560 of 2015 is the first defendant and the first respondent herein is the plaintiff and the respondents 2 to 7 are the defendants 2, 5 to 9 in O.S.No.539 of 1998 and the appellant in S.A.(MD)No.559 of 2015 is the plaintiff and the first respondent herein is the defendant in O.S.No.680 of 2001. Since both the appeals arise out of one and the same property and between the same parties and against the common Judgment passed by the trial Court and by the first Appellate Court, a common judgment is delivered in these appeals.
http://www.judis.nic.in 4.The case of plaintiff in O.S.No.539 of 1998 is that the plaintiff 3 entered into an agreement with the first defendant on 09.07.1998 for the sale of the suit property and the plaintiff has paid a sum of Rs.10,000/- (Rupees Ten Thousand only) towards advance. The sale consideration was fixed as Rs. 2,00,000/- (Rupees Two Lakhs only). The time for payment of balance is fixed as two months. The plaintiff sent a telegram on 08.09.1998 to the first defendant stating that he is ready and willing to perform his part of the contract. But the first defendant did not act in accordance with the agreement. The first defendant sent a notice on 10.09.1998 stating that he was waiting at Sub Registrar Office from 02.00 p.m., till 06.00 p.m. But the plaintiff did not come. No time limit was fixed in the agreement. The plaintiff is ready to perform his part of the contract. The first defendant sent a notice of eviction. As the plaintiff is in possession as a tenant and there is no need to hand over the possession. Though the plaintiff had approached the defendants several times, the first defendant has failed to execute the sale deed. But the first defendant has created some documents in favour of the second defendant. The third defendant has executed a mortgage deed. The defendants are having no right over the property. The plaintiff is entitled for injunction and for specific relief of the agreement.
5.The case of the defendants in the suit in O.S.No. 539 of 1998 is that since the plaintiff has failed to pay the balance amount, he is not having any right in http://www.judis.nic.in suit property as a tenant. Though the defendants are ready to perform 4 their part of the contract, the plaintiff has failed to pay the balance amount. The defendants have waited for the plaintiff till 06.00 p.m., at the Sub Registrar Office. As the plaintiff did not have the fund to pay the balance amount, he did not come there. The plaintiff has not sent any reply notice. The first defendant is having every right over the suit property. On 17.09.1998, the first defendant has sold the property for Rs.2,00,000/- (Rupees Two Lakhs only) to the second defendant. The second defendant has mortgaged the property to the third defendant for a sum of Rs.21,000/- (Rupees Twenty One Thousand only).
6.The case of the plaintiff in the suit in O.S.No.680 of 2001 is that the suit land belonged to the plaintiff and that the defendants were cultivating tenant under the plaintiff on an annual rent of 38 “kalam” paddy per acre. Subsequently the defendant have agreed to purchase the suit land from the plaintiff for a sale consideration of Rs.2,00,000/- (Rupees Two Lakhs only) and she paid an advance of Rs.10,000/- (Rupees Ten thousand only). The time for payment of balance is fixed as two months.
7.It is stated that the plaintiff was ready and willing to perform his part of the contract. The defendants sent a telegram on 08.09.1998 calling upon the plaintiff to be present at the Sub Registrar Office. On 09.09.1998, the plaintiff waited at the Sub Registrar Office till 06.00 p.m., but the defendants have failed http://www.judis.nic.in to come to the Sub Registrar Office. The defendants are liable to pay 5 the future profits from 10.09.1998 onwards. The defendant has filed O.S.No.539 of 1998 without eliciting these facts. The plaintiff is entitled for possession of the suit property and also for future mense profits from 1998-1999 till the date of delivery of possession.
8.The case of the defendant in O.S.No.680 of 2001 is that there was a sale agreement on 09.07.1998. The defendant was willing to perform his part of the contract. Though the defendant was waiting at the Sub registrar Office, the plaintiff has failed to appear there and that the plaintiff is not entitled for any future profits.
9.In O.S.Nos.539 of 1998 and 680 of 2001, the trial Court has passed a common Judgment on 19.02.2014. Against the Judgment and decree in O.S.Nos. 539 of 1998 and 680 of 2001, A.S.Nos.21 and 22 of 2014 were filed and the first Appellate Court passed a common order in both the appeals. Against the common Judgment in A.S.Nos.21 and 22 of 2014, the present second appeals were filed by the appellant.
10.For the sake of convenience, the word 'appellant' herein under will denote Mr.Krishnamoorthy, appellant in S.A.(MD)No.560 of 2015 and the word 'respondent' will denote Ms.Nagammal, respondents in S.A.(MD)No.560 of 2015. http://www.judis.nic.in 6
11.The suit property belonged to the appellant and the respondent was a tenant. There was a sale agreement on 09.07.1998 and the sale consideration is fixed as Rs.2,00,000/- (Rupees Two Lakhs only). The respondent has paid a sum of Rs.10,000/- (Rupees Ten Thousand only) towards advance. These facts are admitted by both parties. The suit in O.S.No.539 of 1998 was filed for specific performance directing the first defendant to execute sale deed in favour of the plaintiff in respect of the suit property and for permanent injunction. The suit in O.S.No.680 of 2001 has been filed for recovery of possession of the suit property and for future mense profits from 1998-1999 till the date of delivery of possession.
12.This Court by its order dated 18.08.2016 admitted the second appeals by framing the following substantial question of law:
“(a)Is not the Courts below committed an error in granting a decree for specific performance when the first respondent has not proved her readiness and willingness from the date of the agreement till the date of the suit and thereafter?
(b)Is not the Courts below committed an error in holding that the first respondent is a cultivating tenant even after the execution of Ex.A1?
(c)Whether the findings of the Courts below that time is not essence of the contract is sustainable in law, when both the parties are bound by the terms of Ex.A1?
(d)Admittedly parties are bound by Ex.A1 and it is specifically stated under Ex.A1 that from the date of Ex.A1, the first respondent is not a cultivating http://www.judis.nic.in tenant. When that being so, the judgment and decree of the Courts 7 below contrary to Ex.A1 is sustainable in law?” Issue No.(a):
13.On the side of the appellant, it is stated that the respondent has failed to prove that she was in possession of balance sale consideration on 09.09.1998. P.Ws.1 to 3 have deposed that they have not produced any document to show that she was having a sum of Rs.1,90,000/- (Rupees One Lakh and Ninety Thousand only) on 09.09.1998. The respondent did not plead that they meet the appellant before sending the telegram for the execution of the sale deed. P.W.3 has clearly deposed that he did not have any money and there is no document to show that they got Rs.1,90,000/- (Rupees One Lakh and Ninety Thousand only). P.W.2 has deposed that she was not having any document to show that she gave the amount to her brother and her mother was having the fund. P.Ws.1 and 3 admitted that they have no amount. P.W.2 has admitted that no document is filed to prove that she was having amount to give tp her mother and that it is proved that the respondent is not having sufficient fund at the time.
14.On the side of the appellant, it is stated that the first respondent has failed to prove her readiness and willingness to perform her part of the contract and she has not produced stamp papers and that she did not prove that she was http://www.judis.nic.in waiting at the Sub Registrar Office on 09.09.1998 and that the first 8 respondent did not file any document to show that she prepared a draft sale deed.
15.On the side of the appellant, it is stated that the trial Court is wrong in deciding that the burden to prove the case is upon the defendant. The trial Court in the Judgment has given a finding that the burden is on the defendants to prove that the purchaser has no money and that the trial Court has failed to consider that it is a settled position of law that the plaintiff has to prove the case. It is stated that there is no way for the appellant to prove that he was ready and willing to perform his part of contract, as the duty of the defendant is only to be available for registeration and that the respondent has to prove that she was having sufficient fund and she was ready to perform her part of the contract and that the respondent has failed to produce any documents to show that she was having sufficient fund at that time and that she failed to prove her readiness as she has not filed any stamp papers and that she has not filed any draft sale deed and the oral contention that she was present before the Sub Registrar is not supported by any documents and that there was no witness except P.Ws.2 and 3 who are the son and daughter of the respondent and that nobody else was examined to prove that the respondent was present before the Sub Registrar Office at that date.
http://www.judis.nic.in 16.On the side of the appellant, it is stated that the trial Court has 9 failed to consider that the burden to prove the case is upon the plaintiff and that the original sale agreement was only with the respondent and not with the appellant and that the trial Court has came to a wrong conclusion that the burden was upon the appellant and not on the first respondent and that it was the duty of the first respondent to prove that he was ready and willing to perform her part of the contract and that the trial Court has decided that the appellant failed to send notice or telegram calling upon the respondent to pay the balance amount and that the vendors need not establish the case even then, the appellant has taken steps to prove that the plaintiff was not having sufficient amount at that time.
17.The learned counsel appearing for the appellant has relied on the Judgment passed by this Court in the case of S. Kalianna Gounder (Deceased) and others v. S.Periyasamy and others reported in 2017 5 L.W. 265, which reads as follows:
“Therefore, it is clear that dehors the conduct of the defendants in a suit for specific performance, it is incumbent on the plaintiff to prove continuous readiness and willingness. If such readiness and willingness is absent the whole suit would have to fail and there cannot be a decree against some of the defendants alone in such a suit for specific performance. In my considered opinion in as much as the bar contemplated under Section 16 are personal bars as against the plaintiffs in a suit for specific http://www.judis.nic.inperformance, whether or not there is a plea on the part of the 10 defendants, the plaintiff will have to plead and prove that he or she is always ready and willing to perform his or her part of the contract. A negative finding on the readiness and willingness will entail the dismissal of the entire suit and there cannot be a partial decree.”
18.On the side of the respondent, it is stated that even in the telegram sent by the respondent, the respondent has stated that she is ready and willing to perform her part of the contract and that even in the reply notice sent by the respondent, the respondent clearly expressed her readiness and willingess and that based on the evidence of P.Ws.1 and 2 and Exs.A3, 5 and 6 both the trial Court and the lower Appellate Court has concluded that the respondent has proved her readiness and willingess. P.W.3 gave evidence that she has paid money for the sale consideration from the fund that was received from her husband who in turn received from his employer and that he was employed in BHEL, Trichy.
19.The learned counsel appearing for the respondent has relied on the Judgment passed by the Hon'ble Supreme Court in the case of Motilal Jain v. Ramdasi Devi and others reported in (2000) 6 Supreme Court Cases 420, which reads as follows:
“Held, averment as to readiness and willingess in plaint is sufficient if the plaint, read as a whole, clearly indicates that the http://www.judis.nic.in plaintiff was always and is still ready and willing to fulfil his part of 11 the obligations.”
20.The learned counsel appearing for the respondent has relied on the Judgment passed by this Court in the case of Sarojini and others v. N.A.Kandaswamy reported in 2013 (2) MWN (Civil) 785, which reads as follows:
“ Before expiry of date stipulated in Agreement for payment of balance consideration, Telegram sent by plaintiffs to defendants to specify time and place for payment of balance consideration- Certified copy of said telegram filed by plaintiff in Court-Defendant however, not replying to said telegram- moreover, xerox copies of bank pass books produced by plaintiff establishing that plaintiff was capable of paying balance sale consideration-in such circumstances, held, plaintiff held, ready and willing to perform his part of contract.”
21.The learned counsel appearing for the respondent has relied on the Judgment passed by the Hon'ble Supreme Court in the case of Balwant Vithal Kadam v. Sunil Baburaoi Kadam reported in (2018) 2 Supreme Court Cases 82, which reads as follows:
“So far as the plea relating to readiness and willingess is concerned, it was again rightly held by the High Court to which we concur that this being a finding of fact, it could not be disturbed in second appeal and was binding on the High Court. It was more http://www.judis.nic.in so when the first appellate Court had recorded its finding by 12 appreciating the entire evidence on record”
22.The learned counsel appearing for the respondent has relied on the Judgment passed by the Hon'ble Supreme Court in the case of V. Pechimuthu v. Gowrammal reported in (2001) 7 Supreme Court Cases 617, which reads as follows:
“25.Counsel for the respondent finally urged that specific performance should not be granted to the appellant now because the price of land had risen astronomically in the last few years nad it would do injustice to the respondent to compel her to reconvey property at prices fixed in 1978.
26.The argument is specious. Where the court is considering whether or not to grant a decree for specific performance for the first time, the rise in the price of the land agreed to be conveyed may be a relevant factor in denying the relief of specific performance.”
23.The learned counsel appearing for the respondent has relied on the Judgment passed by the Hon'ble Supreme Court in the case of J.P.Builders and another v. A.Ramadas rao and another reported in (2011) 1 Supreme Court Cases 429, which reads as follows:
“Vendor, further held, could not take advantage of his own inaction-Doctrine of impossibility cannot be applied to assist a party unwilling to fulfil its obligation under the contract-contract Act, 1872- Sections 31,32 and 56-Termination/Discharge of contract-Termination http://www.judis.nic.in by Frustration/impossibility-induced Frustration/impossibility-Transfer 13 of Property Act, 1882....In case of non compliance therewith, suit has to be dismissed even in absence of specific plea to that effect by opposite party-such readiness has to be established throughout the relevant points of time.”
24.The case of the appellant is that the respondent as well as her son were not having the balance of the consideration amount and that the daughter of the respondent gave fund to the respondent. P.W.2 also was having no means. She depended upon her husband. No document was filed to prove that the husband of P.W.2 was willing to hand over the amount to his mother-in-law. Even in the telegram sent by the respondent on 08.09.1998, there was no statement as to the availability of fund with the respondent. From the date of agreement, the proposed purchaser should be ready and willing to perform his part of the contract.
25.On the side of the appellant, it is stated that the case of the respondent was that she was ready on the last date of the agreement and that only based on the oral evidence of P.W.2, the trial Court has come to the conclusion that the respondent was ready and the trial Court presumed that no steps was taken by the appellant to vacate the respondent, which shows that she might have paid the entire arrears of rent and that without any evidence and without any document, the trial Court has come to a wrong presumption as there was no http://www.judis.nic.in tenancy agreement between the appellant and the respondent after 14 10.09.1998, there was no necessity for the appellant to approach the revenue Court and that even the respondent did not claim herself as a continuing tenant and that as per sale agreement, the respondent failed to perform her part of the contract and she lost her right of tenancy also.
26.The learned counsel appearing for the respondent has relied on the Judgment passed by the Hon'ble Supreme Court in the case of Damodar Lal v. Sohan Devi and others reported in (1997) 2 Supreme Court Cases 200, which reads as follows:
“concurrent findings of Courts below on pure question of fact-interference with, in second appeal, reiterated, not permissible unless such findings are based on no evidence or are perverse -Determination whether finding(s) concerned are perverse”
27.On the side of the appellant, it is stated that proving readiness and willingness is a mixed question of facts and law within the scope of Section 103 of CPC. The learned counsel appearing for the appellant has relied on the Judgment passed by the Hon'ble Supreme Court in the case of Ramathal v. Maruthathal and others reported in 2018 1 L.W. 385, which reads as follows:
“A clear reading of section 100 and 103 of the CPC envisages that a burden is placed upon the appellant ot state in the memorandum of grounds of appeal......
http://www.judis.nic.in High Court's interference in a second appeal on a 15 question of fact-scope-Section 103 enables the High Court to consider evidence when the same has been wrongly determined by the courts below on which a substantial question of law arises.”
28.The question to be decided in the suit is whether the plaintiff proves her readiness and willingness to perform her part of the contract. Except her oral evidence and the evidence of P.W.3 and Ex.A9, no other documents are filed on the side of the plaintiff to prove the availability of the funds for paying the balance of the sale consideration. Ex.A9 is the letter sent by BHEL for distributing the amount. Whether the amount was remitted in to the account of P.W.3 and P.W.3 hand over the amount to P.W.1 who is the respondent herein are not elicited in the evidence of P.Ws.1 to 3. P.Ws.1 to 3 admitted that they have no fund. P.W.2 admitted that there are no documents to show the availability of fund. What prevent the respondent to approach the appellant for execution before 08.09.1998 is not stated in the plaint. Only at the last date of expiry of agreement on 08.09.1998, the respondent has sent a telegram to be present at the Sub Registrar office.
29.The contention of both the parties is that they have waited at the Sub Registrar Office on 09.09.1998 and that the other parties did not come. There was no evidence or no document to prove their availability at the Sub Registrar Office on 09.09.1998. Initial burden is upon the plaintiff to prove her http://www.judis.nic.in readiness and willingness, the plaintiff has not produced any document or 16 evidence to show her presence at the Sub Registrar on 09.09.1998. Except the respondent her son and daughter nobody else was examined on the side of the respondent to prove the presence of the respondent before the Sub Registrar on 09.09.1998. P.W.2 has deposed that selvanathan accompanied her to the Sub Registrar which is denied by P.W.3. Though the burden is not upon the appellant, the appellant marked documents to show that the respondent was having arrears of rent. Both the lower Courts assumped and presumed that the respondent might have settled the arrears of the rent Exs.B1 to B5 and the evidence of P.Ws.1 and 3 reveals that the respondent was not in a capacity to pay the balance of sale consideration.
30.Hence, it is decided that the Courts below have committed an error in granting a decree of specific performance, when the first respondent has not proved her readiness and willingess.
Issue No.(c):
31.On the side of the appellant, it is stated that the first respondent has not proved that she was ready and willing to perform her part of the contract from the date of decree till 09.09.1998. Time is the essence of the contract between the parties. Condition in the agreement is that the first respondent will lose the advance amount as well as the tenancy right if she has fail to http://www.judis.nic.in perform her part of the contract within the time limited. The case of the 17 appellant is that he has received a telegram at about 07.30 p.m., and he was present at the Sub Registrar Office on 09.09.1998 from 02.00 to 06.00 p.m. But the respondent was not there.
32.The case of the first respondent is that she sent a notice on 08.09.1998 and she was there waiting at the Sub Registrar Office. However, the appellant did not turn up. The appellant and the respondent did not produce any documents to show their presence in the Sub Registrar's Office, Thiruverumbur on 09.09.1998.
33.The learned counsel appearing for the appellant has relied on the Judgment passed by the Hon'ble Supreme Court in the case of Saradamani Kandappan v. S.Rajalakshmi and Ors. reported in AIR 2011 Supreme Court 3234, which reads as follows:
“time is the essence of the contract even the delay of single day is not acceptable as the time is essence of contract”
34.On the side of the respondent, it is stated that the Court has to consider whether the time is the essence of contract and readiness and willingness of the parties and that there is no default clause mentioned in the agreement and that 09.07.1998 was the date of agreement and 09.09.1998 was the date of his presence in the Sub Registrar Office and that the time limit fixed http://www.judis.nic.in 18 in the agreement was 08.09.1998. It is stated that the respondent has sent a notice expressing her willingness and readiness but the appellant did not turn up on 09.09.2018 and that further legal notice was sent by the appellant on 10.09.2018 which was marked as Ex.A3 and that the time was not the essence of the contract and that the appellant has entered into an agreement with the second defendant and that the document in favour of the second defendant may not be genuine and that the second defendant also had no money and that the financial capacity of the defendants 2 and 3 is not proved and that till today no sale deed was executed.
35.It is stated that there is concurrent finding by both the two lower Courts and that no steps was taken against the respondent for non payment of arrears and that no steps was taken to evict the respondent and that on the date of agreement, the respondent was a cultivating tenant and that the respondent will not lost her right of tenancy and prayed the appeals are to be dismisssed.
36.The learned counsel appearing for the respondent relied on the Judgment passed by the Hon'ble Supreme Court in the case of Indira Kaur and Others v. Sheo Lal Kapoor reported in (1988) 2 Supreme Court Cases 488, which reads as follows:
“The lower Appellate Court and the High Court also mechanically confirmed the finding. The real test as to whether or http://www.judis.nic.in not the plaintiff was ready and willing to perform his part of the 19 contract was for the defendant to call his bluff.”
37.The learned counsel appearing for the respondent has relied on the Judgment passed by the Hon'ble Supreme Court in the case of Sukhbir Singh and others v. Brij Pal Singh and others reported in (1997) 2 Supreme Court Cases 200, which reads as follows:
“Respondents' presence in Sub-Registrar's office show their readiness and willingess as also possession of necessary funds, whereas petitioners' failure to attend the office shows their avoidance....It is no necessary that they should always carry the money with them from the date of the suit till the date of the decree. It would, therefore, be clear that the Courts below have appropriately exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law”
38.The learned counsel appearing for the respondent has relied on the Judgment passed by the Hon'ble Supreme Court in the case of Balasaheb Dayandeo Naik (Died) through lrs and others v. Appasaheb Dattatraya Pawar reported in (2008) 4 Supreme Court Cases 464, which reads as follows:
“that time is not essence unless contrary intention is expressed in unequivocal language”
39.On the side of the appellant, it is stated that as the appellant is http://www.judis.nic.in badly in need of money at that time, the appellant entered into the contract 20 with the second defendant and received the entire sale amount from the second defendant.
40.On the side of the respondent, it is stated that the appellant received Rs.2,00,000/- (Rupees Two Lakhs only) from the second defendant and only the bank account of the appellant is marked as Ex.B5 and the bank statement of the second defendant is not there and the capacity of the second defendant to pay the same amount is not proved by the appellant. D.Ws.1 and 2 deposed that D.W.2 have no sufficient fund to buy the stamp paper for registering the sale deed and that the respondent has proved her readiness and willingess through Ex.A9 and the evidence of P.Ws.1 to 3 reveals that the respondent has called upon the appellant through telegram dated 08.09.1998. If the time is not the essence of the contract, there is no need for the respondent to send the telegram at all.
41.The learned counsel appearing for the appellant has relied on the Judgment passed by the Hon'ble Supreme Court in the case of Padmakumari and others v. Dasayyan and others reported in (2015) 8 Supreme Court Cases 695, which reads as follows:
“the subsequent purchaser for a valuable consideration is entitled for the property” http://www.judis.nic.in 21
42.The burden is upon the plaintiff who claim specific performance to prove the case. The case of the respondents rest upon Ex.A1.The recitals in Ex.A1 clearly reveals that time is the essence of the contract. Intention to treat time as the essence of the contract is proved through the conditional clause in Ex.A1. When both the parties are bound by the terms of Ex.A1, both the Courts below are wrong in finding that time is not the essence of the contract. Issue nos.(b) and (d):
43.On the side of the appellant, it is stated that in the sale agreement, time for execution of sale is fixed as two months. The respondent who was a cultivating tenant, was not ready and willing to perform her part of the contract. As the first respondent has failed to perform her part of the contract, she is now an encroacher.
44.On the side of the appellant, it is stated that the respondent was not having the fund at any point of time and as the respondent did not pay the lease amount properly the appellant has filed a suit before the revenue Court in the year 1995 and the respondent was a chronic defaulter and she never pay the rent and in the evidence, the respondent has admitted that she has arrears of rent. It is further stated that as the respondent was not capable of paying the lease amount, just to give an opportunity to purchase the property, the appellant http://www.judis.nic.in fixed a time limit and fixed that time is the essence of the contract. 22
45.The learned counsel appearing for the appellant has relied on the Judgment passed by this Court in the case of P.Subramanian Udayar v. Eswari and others reported in (2001) 2 Mlj 19, which reads as follows:
“Scope- cultivating tenant agreeing to purchase the land- agreement entered into-tenant put in possession of property in capacity as prospective purchaser-contract not performed-He does not revert to his position as cultivating tenant-Distinction between case where lessee becoming mortgagee of the property and case where he becomes an agreement holder put in possession as a prospective purchaser”
46.A perusal of the records reveals that the respondent was a tenant and there was an agreement between the appellant/landlord and the respondent/tenant for the sale of suit property. Time for payment of balance consideration was fixed as two months. The respondent approached the Court for the specific performance and for permanent injunction. It is settled legal position that the plaintiff has to prove the case but in both the lower Court Judgments, it is stated that burden is upon the defendants to prove the case. The capacity of the second defendant is not an issue to be decided.
47.In the agreement, it is clearly stated that the respondent will lose the right http://www.judis.nic.in the tenancy if she failed to perform her part of the contract. In the 23 above circumstance, the possession of the respondent is not as a tenant as there was an agreement of sale. The possession in the hands of proposed purchaser is not a possession of a cultivating tenant. There is no necessity for the appellant to approach the revenue Courts, as there is no subsisting relationship of landlord and cultivating tenant between the petitioner and the respondent.
48.A perusal of the records reveals that there is apparent mistake on the part of both the lower Courts in presumpting that the burden is upon the defendants to prove the case and by assuming that the plaintiff might have paid back the arrears of the rent. There is apparent mistake under Section 100 of C.P.C.,
49.All the issues are decided in favour of the appellant. As there is an apparent mistake under Section 100 of C.P.C., the Judgment of both the lower Courts are to be set aside. Both the Second Appeals are allowed. The respondents are directed to hand over possession to the appellant within a period of six months from the date of receipt of copy of this order. No Costs.
29.01.2019
Index : Yes/No
Internet : Yes/No
Mrn
http://www.judis.nic.in
24
R.THARANI, J.
mrn
To
1.The I Additional District Judge(PCR), Tiruchirappalli
2.The I Additional Sub Judge, Thiruchirappalli.
3.The V.R.Section, Madurai Bench of Madras High Court, Madurai.
S.A.(MD)Nos.559 and 560 of 2015 29.01.2019 http://www.judis.nic.in