Madras High Court
R.Natarajan vs Thangaraj on 2 March, 2017
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
IN THE HIGH COURT OF JUDICATE AT MADRAS Dated: 02.03.2017 CORAM THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN S.A.No.272 of 2008 R.Natarajan Petitioner Vs. 1.Thangaraj 2.Balu 3.Palanisamy 4.Minor Velu Respondents (Minor represented by his natural Guardian and next Friend Palanisamy the 3rd respondent herein) Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and decree dated 16.11.2005 passed in A.S.No.38 of 2005, on the file of the Additional Subordinate Judge, Salem, whereby confirming the Judgment and decree dated 16.02.2004 passed in O.S.No.1070 of 1997, on the file of the Court of the IInd Additional District Munsif, Salem. Petitioner : Mr.C.Prakasam Respondents : Mr.S.K.Chandrakumar (for R3 and R4) No Appearance (for R1) R2 Dismissed vide order dated 23.09.2011 O R D E R
The plaintiff is the appellant before this Court, challenging the concurrent judgment in both O.S.No.1070 of 1997 dated 16.02.2004, on the file of the learned II Additional District Munsif Court, Salem and in A.S.No.38 of 2005, dated 16.11.2005, on the file of the learned Additional Subordinate Judge, Salem.
2.The case of the plaintiff is that the plaintiff has purchased the property morefully set out in the suit schedule of property on 31.08.1992 from the 1st defendant for a valid sale consideration. The said sale deed was registered on 31.08.1992 in favour of the plaintiff, who is the appellant herein. The said suit schedule of property was purchased by the 1st defendant in pursuance of the sale deed dated 03.11.1989 from the defendants 2 to 5. At the time of purchase by the plaintiff on 31.08.1992, the original sale deed dated 11.08.1978 in respect of the suit schedule of property was handed over by the 1st defendant to this plaintiff.
3.It is the further case of the plaintiff is that the plaintiff was doing real estate business, by buying lands from the 3rd parties and lay out the same as house sites and sold the house site to third parties with a marginal profit. As a matter of fact, the lands situated adjacent to the suit property on its west and north have already been acquired by the plaintiff and the same was divided into house sites during the year 1989.
4.He has also states that the 1st defendant also handed over the peaceful possession of the suit schedule of property on 31.08.1992 itself, when the sale deed was registered and executed in favour of the plaintiff and after purchase the same, this petitioner divided the same as house plots already annexing with the properties already acquired by the plaintiff on the west and north side. The defendants 1 to 5 were well known that the plaintiff after purchasing the suit property has divided the suit land as house sites and sold away some portions of the house sites to the third parties and remaining lands are with the plaintiff.
5.While being so, during the middle of the year 1997, the defendants 1 and 2 were approached the plaintiff and demanded that the plaintiff should give a reasonable amount from the profit which the plaintiff divided the land as house sites and sold to the third parties with high profits. But, the plaintiff refused to comply with the unlawful and illegal demand. Thereafter, the defendants 1 and 2 were states that they have filed a collusive suit which has been designed by them to achieve their claim. Thereafter only on verification, the plaintiff came to know that all the defendants together designed a conspiracy even earlier to the purchase of the suit property by the plaintiff and had brought out a suit in O.S.No.820 of 1990 on the file of the learned District Munsif Court, Salem, by offer of purchasing the suit property for conveniently laying house sites. The plaintiff also states that in the above said circumstances, Panchayat was convened by the plaintiff for an amicable settlement and the defendants have been dragging on the same on the one hand, they have purposely suppressed the pendency of the collusive execution proceedings, which is pending in REP.No.32 of 1997, on the file of the learned District Munsif Court, Salem for the relief of delivery of possession of the suit property.
6.The plaintiff come forward by saying that the entire proceedings in O.S.No.820 of 1990, thereafter the Execution Proceedings in REP.No.32 of 1997 are out come of a conspiracy designed by the defendants with a view of unlawful gain. Though the plaintiff after have sold few house site plots is still in possession and enjoyment of the other properties with the full knowledge of the defendants.
7.The very filing of the suit in O.S.No.820 of 1990 and the decree dated 28.02.1995 in O.S.No.820 of 1992 and the consequential execution proceedings in REP.No.32 of 1997 both of them were filed before the learned District Munsif Court, Salem, are absolute outcomes of abuse of process of law by the defendants and therefore, the decree is liable to be set aside. Therefore, in the above circumstances, this plaintiff has filed the above suit for declaration cancelling the judgment and decree passed in O.S.No.820 of 1990, dated 28.08.1995, on the file of the District Munsif Court, Salem.
8.On receipt of the summon, the defendants were appeared and a written statement was filed by the 4th defendant Mr.Palanisamy and the said written statement was adopted by the defendants 5 and 6. Therefore, the plaintiff has filed the original suit for cancelling the sale deed.
9.The defendants states that the averments made in the plaint in para 3 to 6 are false, contradictory, tendentions and self-serving and also they have no knowledge about the plaintiff's real estate business. The 4th defendant also states that the 2nd defendant had purchased the suit schedule of property from one Mr.Perumal only, who is the 2nd defendant in the suit.
10.The 4th defendant states that the suit schedule of property was sold by the 2nd defendant in favour of the 1st defendant Thangaraj for a sum of Rs.30,700/-, but, due to the fraud played upon the said Perumal by the 1st defendant, he was forced the 2nd defendant in filing the suit in O.S.No.820 of 1990 on the file of the learned Additional District Munsif Court, Salem, for cancellation of the said sale deed. The 4th defendant also states that there is no conspiracy in respect of filing the suit in O.S.No.820 of 1990.
11.Admittedly, the plaintiff has purchased the suit property from the 1st defendant herein on 31.08.1992, during the pendency of the suit supra. Under the circumstances, the plaintiff has purchased the suit property is hit by the principle of Lis pendens there was no Panchayat of any sort took place and that there was no demand for a share in the profit. Therefore, the 4th defendant share is for the entire plaint allegations are imaginary and ill-designed and ill-motivated. The 4th defendant also states that incidentally, the sale in favour of the 1st defendant had been cancelled by means of a decree of the Court on 28.08.1995 and in execution of the said decree the possession of the suit property obtained through Court and delivery of possession was recorded on 11.06.1998 in REP.No.32 of 1997, on the file of the Court of Principal District Munsif, Salem. The 4th defendant also states that there is no cause of action in filing of the suit and the Court fee valued in the suit is also not correct. Hence, the defendants 4 and 5 were prayed for dismissal of the suit. But, there was no appearance of the defendants 1 to 3 in O.S.No.1070 of 1997.
12.Considering both side cases, the learned II Additional District Munsif, Salem was framed two issues:
(1)Whether the decree and judgment in O.S.No.820 of 1990 dated 28.08.1995 can be cancelled?
(2)To what relief the plaintiff is entitled?
13.For the 1st issue, the learned II Additional District Munsif, Salem, states that the plaintiff needs to prove that there is collusion between the 1st defendant and other defendants and there was abuse of process of law. The learned District Munsif states that on perusal of records seized that the Ex.A1 is the sale deed dated 31.08.1992 was executed by the 1st defendant in favour of the plaintiff, who has remained exparte in the suit in O.S.No.820 of 1990 as well as in the present suit in O.S.No.1070 of 1997. The documents Exhibits A2 to A9, which shows the title of the 2nd defendant predecessors to the suit property are all with the plaintiff. DW1 Mr.P.Palanisamy, who is the 4th defendant herein has admitted that all the above documents Exs.A2 to A9 were handed over by the 2nd defendant in favour of the 1st defendant on the date of sale i.e. on 03.11.1989 executed in favour of the 1st defendant.
14.The learned Judge also states that when DW1 comes with the allegations that the 1st defendant did not agreed the payment of Rs.30,500/- and committed fraud, therefore, they have filed the suit in O.S.No.820 of 1990, but DW1 admits that he did not said that the necessary consideration had not passed before the Sub-Registrar. In fact, Ex.A6 the cancellation of the sale agreement noted with one Mohan and Ex.A9 the sale to 1st defendant are on the same day. The inference is that not satisfied with one Mohan, cancelling the agreement and satisfied with the offer of 1st defendant agreed to execute a sale deed in favour of the 1st defendant, later obtained exparte decree on 28.08.1995 stating that the agreed consideration did not pass. This is a case wherein it is not decided on merits and knowing fully well about the existence of the suit, the learned Judge says that the 1st defendant sold off the property to the plaintiff.
15.The learned Judge also states that as per Ex.B1, the possession was delivered in REP.No.32 of 1997 on 30.04.1998, since the 1st defendant was set exparte in both the suits in O.S.No.820 of 1990 and the present suit in O.S.No.1070 of 1997. The learned Judge also states that the 1st defendant have given possession on 30.04.1998 whereas he had already as per Ex.A1 sold the same to the plaintiff and this is nothing but to hoodwink the plaintiff. After getting possession, the 4th defendant had issued Ex.B3 notice to the plaintiff, the 1st defendant herein and Kondalampatti Police. As on date of the possession, the Village Administrative Officer and other individuals nearby were present, noting by the plaintiff to show that at that time, plots were made except Ex.A14 plan of the year 1993. The learned Judge also states that the PW1 states that he does not know from whom the possession was delivered and no intimation was given to PW1, just shows the real state of affairs and his bonafide attitude. The same way Ex.B3 notice was issued to the plaintiff on 30.07.1999, but, the plaintiff denies that he never received such notice and the signature is not of him. Ex.B5 shows that someone had signed for the plaintiff. The defendants produce Ex.B7, encumbrance for the period 1993-1996 and the last entry is about cancellation of the sale deed dated 03.11.1989, which was made in the year 1995.
16.The learned Judge further states that when a specific question was put to the 4th defendant whether he had reported it to the concerned authority, he showed his bonafideness by Ex.B7, the last entry. Even though the date is 18.07.1990, its the date of suit can be seen in Ex.A3. Ex.B2 is a receipt given by the concerned Police Station regarding a complaint given by the 4th defendant in which it is stated that the respondents are trying to remove the thatched shed, but no copy of the complaint is produced to show against whom it was filed and it is ultimately shows the 4th defendant took possession and he was disturbed by some persons and the plaintiff produced Exs.A10 to A14 to show that he had purchased the lands adjoining the suit property on the north and west. But, the 4th defendant categorically denies, turns a blind eye to the question that adjacent lands have been divided into plots. It is nothing but to denied the claim of the plaintiff, as some 4= acres of land have been divided into plots or atleast noticed that some work is going on. But, this itself does not show that he had a bad intention even earlier to defraud the plaintiff. The learned Judge also states that as per Section 52 of the Transfer of Property Act, any transfer of property pending suit, the person purchasing or transferee is bound by the decree passed even though, he has not a party and knew nothing about it, unless the suit or proceeding is collusive. Therefore, the plaintiff not having proved the connivance and the net result, the abuse of process of law comes under the purview of doctrine of lis pendens. Hence, the plaintiff is bound by the decree and accordingly the issue No.1 is decided as against the plaintiff.
17.The learned Judge also considered that the issue No.1 is decided that the judgment and decree in O.S.No.820 of 1990 is cannot cancelled since the plaintiff, who has purchased a defective title from the 1st defendant and he can claim damages as against the 1st defendant and is not entitled to any other relief and therefore, the second issue was decided against the plaintiff. Therefore, the learned II Additional District Munsif, Salem has dismissed the suit with cost on 16.02.2004.
18.Challenging the said judgment and decree in O.S.No.1070 of 1997 dated 16.02.2004, this plaintiff has filed an appeal in A.S.No.38 of 2005 before the learned Additional Subordinate Judge, Salem. The learned Appellate Judge considered both side cases, he states that the 2nd defendant immediately taken proceedings against the 1st defendant, who failed to pay the balance of sale consideration, he also issued a notice to the 1st defendant, who gave a reply notice also. Hence, the 2nd defendant herein filed the above suit for the cancellation of sale deed executed in favour of the 1st defendant. The learned Appellate Judge states that there is no such collusive between the defendants 1 and 2 as alleged by the plaintiff herein. Thereby, the legal heirs of the 2nd defendant established that there is no collusive between the 1st and 2nd defendant in obtaining the decree in O.S.No.820 of 1990. The learned II Additional District Munsif has consider the case on the ground that the plaintiff's purchase is hit by Doctorine of Lis Pendens, thereby, he is bound by the decree in O.S.No.820 of 1990. It is admitted fact that during the pendency of O.S.No.820 of 1990 the plaintiff purchased the suit property from the 1st defendant in the year 1992. Previous to that sale, the 1st defendant also got appearance through his counsel in O.S.No.820 of 1990. As per Section 52 of the Transfer of Property Act, the sale transaction during the pending litigation also subject to the rights declared under the decree. Hence, pending disposal of O.S.No.820 of 1990 the plaintiff purchased the suit property from the 1st defendant thereby he entered into the shoes of the 1st defendant thereby, he is also bound by the decree passed in O.S.No.820 of 1990. Therefore, the learned Appellate Judge passed an order that the learned II Additional District Munsif, rightly dismissed the suit and confirmed the judgment and decree in O.S.No.1070 of 1997, dated 16.02.2004. Challenging the Judgment Decree in A.S.No.38 of 2005, confirming the Judgment and Decree in O.S.No.1070 of 1997, the plaintiff has filed the present Second Appeal before this Court.
19.I heard Mr.C.Prakasam, learned counsel appearing for the appellant and Mr.S.K.Chandrakumar, learned counsel appearing for the respondents 3 and 4. No representation on behalf of the 1st respondent and perused entire records.
20.When the Second Appeal came for admission, this Court by order dated 27.02.2008 ordered Notice regarding admission returnable by eight weeks and the Second Appeal was not admitted. The Second Appeal was filed challenging both the judgment and decree in O.S.No.1070 of 1997 and in A.S.No.38 of 2005. The plaintiff/appellant raising the following substantial question of law:
SUBSTANTIAL QUESTION OF LAW A. Whether Courts below correctly concluded that the respondents 2 to 4's father not received the sale consideration even after marking of Ex.A-9?
B. Whether Courts below appreciated the contents contained in Ex.A-9?
C. Whether the courts below can appreciate without considering the collusion made between the defendants 1 and 2 while deciding the suit?
21.It is the case of the plaintiff is that the plaintiff is doing the real estate business and before purchasing the suit schedule of property, the plaintiff has purchased the lands on the west and north sides of the suit property and the same was divided into house sites. The plaintiff has purchased the suit property from the 1st defendant Mr.Thangaraj, by sale deed dated 31.08.1992, which is marked as Ex.A1 Sale Deed. Before purchasing the suit schedule of property as per Ex.A1, the 1st defendant had purchased the suit schedule of property from the 2nd defendant Mr.Perumal on 03.11.1989 for a valid sale consideration, which was marked as Ex.A9, executed in favour of the 2nd defendant by Mr.Perumal the 2nd defendant in the suit.
22.At the time of purchase of the suit schedule of property, the 1st defendant has handed over the original parent document dated 11.08.1978, since the original sale deed dated 11.08.1978 was handed over by the 2nd defendant to the 1st defendant on the date of sale deed dated 03.11.1989. Therefore, at the time of execution of sale deed on 21.08.1992, the 1st defendant was handed over the entire original documents including the Ex.A2 dated 11.08.1978 to the plaintiff.
23.The 1st defendant also handed over the vacant possession of the suit schedule of property in favour of the plaintiff on the same date i.e. 31.08.1992. After purchasing the suit schedule of property, the plaintiff has divided the property into the house sites and some of the house plots were sold to some 3rd parties. After sold the suit schedule of property in the middle of June 1997, the defendants 1 and 2 were approached the plaintiff and demanded that they should be given a reasonable amount from the profit which the plaintiff gets from the suit property. When the plaintiff refused to comply with their unlawful and illegal demand, then only the defendants were disclosed the filing of the suit and there is a decree in O.S.No.820 of 1990, which was decreed on 28.08.1995 and later on, execution petition was filed in REP.No.32 of 1997 for delivery of possession and as per the order in the E.P. on 11.06.1998, the possession of the property was delivered to the defendants 2 to 5.
24.It is the case of the plaintiff is that there is a collusion between the 1st defendant with other defendants and there was an abuse of process of law in respect of the suit filed in O.S.No.820 of 1997. As per the sale deed dated 11.08.1978, the 2nd defendant Perumal was purchased the suit property. While pendency of the above on 28.09.1987, the 2nd defendant Perumal executed the agreement in favour of one Mr.Mohan and thereafter on 31.01.1989, the sale agreement was cancelled by Perumal. Thereafter, on 03.11.1989, the 2nd defendant was executed the sale deed in favour of the 1st defendant. Pursuant to the sale deed dated 03.11.1989, the 1st defendant has executed the sale deed in favour of the plaintiff on 31.08.1992 i.e. after 3 years.
25.It is the case of the defendants 2 to 5 that the suit in O.S.No.820 of 1990 was filed by the defendants 2 to 5 against the 1st defendant before the learned District Munsif Court, Salem. While pendency of the suit, the 2nd defendant has sold the property on 21.08.1992 in favour of the plaintiff, which is not at all maintainable. It is the case of the lis pendens and the case was filed as per Section 52 of the Transfer of Property Act, since any transfer of property pending suit, the person purchasing or transferee is bound by the decree passed even though, he has not a party and knew nothing about it, unless the suit or proceeding is collusive. Therefore, the suit filed by the plaintiff for cancelling the sale deed dated 31.08.1992, and the judgment and decree dated 28.08.1995, on the file of the learned District Munsif, Salem, is not maintainable.
26.In this case, it is made clear that the suit in O.S.No.820 of 1990 was filed in cancellation of the sale deed dated 03.11.1989 on the ground that the 1st defendant has not paid the amount of Rs.30,700/-. Therefore, the defendants 2 to 5 were filed the suit against the 1st defendant for cancellation of the sale deed dated 03.11.1989.
27.It is the case of PW1, who is the 4th defendant in the suit it was alleged that the 1st defendant Thangaraj has not paid the agreed amount of Rs.30,700/- and committed fraud. Therefore, the Original Suit in O.S.No.820 of 1990 was filed against the 1st defendant, the learned II Additional District Munsif admitted that the DW1 did not say that the necessary consideration has not been passed before the Sub-Registrar, while registering the suit schedule of property on 03.11.1989 in favour of the 1st defendant.
28.Normally without paying the necessary sale consideration, the Sub-Registrar cannot register the sale deed. Even infact normally when a sale deed is arranging to execute, it is the bounded duty of the Sub-Registrar to question about the sale consideration for the payment and receipt by the seller and purchaser, as per the Registration Act. Unless the sale consideration is fulfill, the sale deed should not be registered. Thus being the case, how the Court has accepted this that the sale amount of Rs.30,700/- has not been paid by the 1st defendant and the suit in O.S.No.820 of 1990, decreed in favour of the defendants 2 to 5. In fact, in the sale deed dated 03.11.1989 executed by the 2nd defendant in favour of the 1st defendant and it is stated as follows:
v';fspy; 1 yf;fkpl;ltUf;F Rahh;$pjk;/ ic& 1 yf;fkpl;lthpd; bgaUf;F brd;w 11/8/1978k; njjpapy; nryk; 3 be/ rg;hp$p!;jh; MgPrpy; 1 g[j;jfk; 1196 thy;a[k; 321 Kjy; 324 tiu gf;f';fspy; 1978k; tUc&j;jpa 1912 tJ bek;guhf hp$p!;juhfpapUf;Fk; fpuag; gj;jpug;gof;F Rahh;$pjkha; ghj;jpag;gl;L ic&ahhpd; bgahpy; gl;lhita[k;. 2. 3. 4. 5 yf;fkpl;lth;fSf;F thhpRhpikg;gof;F ghj;jpag;gl;lJk; v';fspd; RthjPd mDgtj;jpypUe;J tUk; fPH;fz;l g[";ir tptrha epyj;ij ehsJ njjpapy; j';fSf;F U:gha;/7.000?00f;F Rj;jf;fpuaKk; RthjPdKk; bra;J bfhLj;J v';fspd; FLk;g cgnahfkhd bryt[fSf;fhft[k; btspapy; bfhLf;fg;glntz;oa fld;fis fl;o jPh;g;gjw;fhft[k; ic& fpuaj; bjhif U:/7.000?00 U:gha; VHhapuk; j';fsplkpUe;J eh';fs; ,d;nw bgw;Wf; bfhz;lgoahy; fPH;f;fz;l fpuar; brhj;ij ,d;nw j';;fsplk; fpuaKk; RthjPdKk; bra;Jf; bfhLj;Jtpl;nlhk;/ ,dp ,e;jf; fpuar;brhj;ij ,dp v';fSf;fhtJ v';fs; gpd;dpl;l vt;tpj rl;l rk;ke;jkhd Mz;. bgz; thhpRfSf;fhtJ ve;jtpjkhd ghj;jpaKk; rk;ke;jKk; gpd; Jlh;r;rpa[k; chpika[k; ve;jf; fhyj;jpYk; fpilahJ/ ,d;W Kjy; fPH;fz;l fpuar; brhj;ij jh';fns rfy Rje;jpu ghj;jpa';fSld; jhd tpdpnahf tpw;fpua';fSf;F mUfuhf g[j;jpu bgsj;jpu ghuk; ghpae;jkha; Mz;lDgtpj;Jf; bfhz;L Rfj;jpy; ,Uf;ft[k;/
29.Hence, the question of consideration has not at all maintainable to the present suit in O.S.No.1070 of 1997. Therefore, it is made clear that it is totally a collusion between the defendants. Even as per the sale deed dated 03.11.1989 executed by the 2nd defendant in favour of the 1st defendant, the total sale is only Rs.7,000/-, then how the suit in O.S.No.820 of 1990 has been filed by stating that the total sale consideration of Rs.30,700/- has not been paid. As per the sale deed averments it is stated that the entire sale consideration is only Rs.7,000/- that too the said amount was also received by the seller by namely, the 2nd defendant from the 1st defendant herein.
30.Apart from this, there is no evidence to show that whether the 2nd defendant who is the father of the defendants 3 and 4 that he has not received the sale consideration even after Ex.A9. Therefore, the substantial question of law (a) is considered in favour of the plaintiff.
31.It is the case of the defendants 2 to 4 that the 1st defendant has not paid the sale consideration of Rs.30,700/- to the defendants 2 to 4, when the sale deed was executed by the 2nd defendant Perumal, the father of the defendants 3 to 4 on 03.11.1989 is true one or not? Thus being the case, the defendants 2 to 4 are not proved in the suit whether the said amount has been paid or not? Therefore, when the defendants 2 to 4 are not proved the non payment of Rs.30,700/- either in this suit in O.S.No.1070 of 1997 or in the suit in O.S.No.820 of 1990, then the defendants 2 to 4 have no right to file the suit in O.S.No.820 of 1990 for cancellation of the sale deed dated 03.11.1989, since both the defendants 1 and 2 in this case has not appeared in O.S.No.820 of 1990 and also in this O.S.No.1070 of 1989. When the Ex.A9 very clearly states that the sale consideration was already fulfilled by the purchaser and the Ex.A9 dated 03.11.1989 in the eye of law is valid one. Hence, the 2nd question of law is decided in favour of the plaintiff.
32.Whether the Courts below appreciated without considered the collusion between the 1st defendant and other defendants, while deciding the suit in O.S.No.820 of 1990. It is the case of the defendants 2 to 5 is that the sale consideration of Rs.30,700/- has not paid by the 1st defendant as per the sale deed in Ex.A9 dated 03.11.1989. Thus being the case, there should be evidence given by Mr.Perumal i.e., that the 1st defendant Mr.Thangaraj, has not paid the sale consideration, but the defendant in the suit in O.S.No.820 of 1990 as per record it shows that as per sale deed dated 03.11.1989 the entire sale amount is paid by the 1st defendant to the 2nd defendant. Unless, the 1st defendant with defendants 2 to 5 are colluded themselves, the defendants 2 to 5 cannot filed the suit in O.S.No.820 of 1990. When the sale deed dated 03.11.1989 was executed in the presence of Sub-Registrar and the sale deed itself is made clear that the 2nd defendant has received the entire sale consideration of Rs.7,000/-, how the defendants 2 to 5 were filed the suit against the 1st defendant that the entire sale consideration of Rs.30,700/- was not received. Therefore, it is totally collusion between the defendants 1 and 2 for filing the suit in O.S.No.820 of 1990. In the above circumstances, the substantial question of law No.3 is also decided in favour of the plaintiff.
33.Both the Courts miserably failed to consider the suit in O.S.No.1070 of 1997 in a proper manner since there was no evidence to show the non payment of sale consideration by the 1st defendant in favour of the other defendants. Even there was an evidence to shows that the first defendant has not paid the sale consideration, then how the Sub-Registrar has registered the document by stating the sale consideration was fulfilled by both the parties.
34.Even, the decree and judgment in O.S.No.820 of 1990 should be cancelled on the simple reason that the suit has been filed only for non payment of sale consideration. But, if the Courts below could have gone through the document Ex.A9-Sale deed dated 03.11.1989 executed by the defendants 2 to 4 in favour of the 1st defendant, that would give the clear picture that the 1st defendant has paid the entire sale consideration and the same was received by the defendants 2 to 4, and definitely the suit in O.S.No.1070 of 1997 would be decreed in favour of the plaintiff, but for the reason best known to them except the reason of lis pendens under Section 52 of the Transfer of Property Act, the Courts below simply dismissed the suit.
35.It is the case of the plaintiff is that originally, the sale deed was executed by the defendants 2 to 4 on 03.11.1989 in favour of the 1st defendant, after 3 years, the 1st defendant has executed the sale deed in favour of this plaintiff on 31.08.1982 and the suit in O.S.No.820 of 1990 was decreed only on 28.08.1995. If the defendant is appeared before the learned District Munsif Court, in O.S.No.820 of 1990, they would have enquired the 1st defendant as well as the Sub-Registrar, but the 1st defendant and the 2nd defendant Mr.Perumal, who was the father of the defendants 3 and 4 since at the time of registering the sale deed on 03.11.1989, both the defendants 3 and 4 were minors, then the receipt of the sale consideration was received by the 2nd defendant only, who is the father, but in the said suit in O.S.No.820 of 1990, both the purchaser the 1st defendant and the seller, the 2nd defendant Mr.Perumal have not adduced evidence in respect of sale consideration. When in the absence of evidence by both the defendants 1 and 2 namely Mr.Thangaraj and Mr.Perumal, how the Court below come to a conclusion that the sale consideration was not paid by the 1st defendant in O.S.No.820 of 1990.
36.If the learned District Munsif had gone into the sale deed dated 03.11.1989 in a proper manner, defenitely he would consider the suit in O.S.No.820 of 1990 is not maintainable and the same would be dismissed by the said Court. Therefore, there is total lack on the part of both the Courts.
37.Therefore, it is my absolute view that the learned District Munsif Court, Salem, has passed the Judgment and decree in O.S.No.820 of 1990 with total non application of mind. Hence, this Court warranting interference of the judgment and decree in both O.S.No.1070 of 1997 and A.S.No.38 of 2005 and the same are liable to be set aside.
38.In the result, this Second Appeal is allowed and the judgment and decree in A.S.No.38 of 2005, dated 16.11.2005, on the file of the Additional Subordinate Judge, Salem, confirming the O.S.No.1070 of 1997, dated 16.02.2004, on the file of the Court of IInd Additional District Munsif, Salem, are hereby set aside. No costs.
02.03.2017 Note:Issue order copy on 02.08.2017 vs Index:Yes Internet:Yes To
1.The Additional Subordinate Judge, Salem.
2.The IInd Additional District Munsif, Salem.
M.V.MURALIDARAN,J.
vs Pre-Delivery order made in S.A.No.272 of 2008 02.03.2017