Madras High Court
Karvannan vs Gopal Padayaschi on 1 December, 2000
ORDER
1. This second appeal has been filed against the judgment and decree made in A.S.No.113 of 1986 on the file of the Subordinate Judge, Vridhachalam dated 23.12.1988 confirming the decree granted in O.S.No.46 of 1982 on the file of the District Munsif, Vridhachalam dated 22.7.1986.
2. Twice defeated defendant is the appellant in this second appeal.
The defendant filed a written statement contesting the claim of the plaintiff by contending that the suit is liable to be rejected with compensatory cost, that ihe suit property belongs to the defendant, that the suit property is not properly described in the plaint schedule, that it is not true that the defendant wanted to sell the suit property, that there was no negotigations with regard to the sale of the suit property that it is equally false to state that this defendant agreed to sell the suit property for a sum of Rs.5,250 that this defendant did not receive any amount, much less a sum of Rs.5,250 on 28.6.1979, that this defendant has not issued any receipt for having received the said amount that this defendant never told the plaintiff that we would execute the sale deed and have it registered in a week that the possession was not handed over to the plaintiff as contended by him, that this defendant is in possession of the suit property that the claim of the plaintiff is false and this can be seen from the fact that even in 1979, the lands in the locality would fetch high price, that the market value of the land was Rs.15,000 per acre, that this defendant could not have agreed to sell the suit property for such a small amount of Rs.5,250 that the agreement set up by the plaintiff is not true, that the plaintiff requested this defendant to sell the suit property to him because he has properties on all three sides but this defendant did not agree and that therefore the plaintiff has come forward with a false case and the suit is, therefore, liable to be dismissed.
4. On the above pleadings, the trial Court framed the issues as to: (1) whether the oral agreement dated 28.6.1979 is true? (2) whether the plaintiff is entitled for specific performance? and (3) whether the plaintiff is entitled to any other relief?
5. The plaintiff examined himself as P.W.1 besides P.Ws. 2 and 3 and plaintiff has filed Exs.A.1 to A.4 documents. The defendant examined himself as D.W.1 and has filed Exs.D1 to D5 documents Exs.C.1 to C.5 were marked by the Court suo moto which are certain signatures of the defendant found in certain documents filed along with the records.
6. On consideration of evidence both oral and documentary, learned District Munsif gave finding to the effect that there has been an oral agreement between the plaintiff and the defendant to sell the property for a sum of Rs.5,250 on 15.6.1979, that accepting the evidence of P.Ws.l to 3 the court also held that on 28.6.1979 Ihe entire sale consideration was received by the defendant and in acknowledgment of the same, Ex.A1 receipt was issued by the defendant to the plaintiff, that thereafter, the defendant has not executed the sale deed and therefore, decreed the suit directing the defendant to execute the sale deed. Aggrieved at the said decree and findings the defendant preferred an appeal in A.S.No.113 of 1986 and the learned Subordinate Judge, by impugned judgment, dismissed the appeal confirming the decree granted by the trial court. Aggrieved by the said decisions, the defendant has come forward with the above second appeal.
7. At the time of admission of the second appeal, the following substantial question of law has been formulated for consideration: Whether the decree for specific performance can be granted when the agreement does not contain any specification regarding the properties to be sold?
8. The plaintiff has filed the suit on the footing of an oral agreement of sale said to have been entered into between the plaintiff and the defendant on 15.6.1979. The agreement is said to have taken place in respect of the suit property having an extent of 1.19 acres comprised in Survey Nos.145/2 and 145/5 of Poovanur Village, Pennadam Taluk, South Arcot District. The suit property, admittedly, belongs to the defendant and is irrigated with the water taken from the irrigation channel as seen from the Adanga! produced by the defendant. The parties used to raise paddy and other nanja crops eventhough the classification of the lands, as per the revenue records, is punja. Anyhow, the extent of the land in dispute is admittedly 1.19 acres.
9. The negotiation for the purchase and sale seem to have arisen under these circumstances. The land belonging to the defendant is lying as a distinct plot in the midst of a surrounding properties, which belong to the plaintiff and it is also specifically stated by the plaintiff that it was the defendant who wanted to dispose of the properties and when this came to be known to him he went and approached the defendant as a result of which the agreement is said to have been arrived at on 15.6.1979.
10. The agreement is said to be oral only. There is absolutely no explanation as to why the agreement was not reduced to writing after the completion of negotiation in the presence of witnesses. The sale consideration was fixed and arrived at Rs.5.250 on 15.6.1979 itself. One explanation is that the defendant wanted the entire transaction to be completed within a week and therefore, wanted the plaintiff to come forward with money, so that the sale could be completed and document could be registered. Moreover, the plaintiff is said to have approached the defendant by offering the entire sale consideration on 28.6.1979 and wanted him to execute the sale deed and have it registered. The defendant accepted the money from the plaintiff but did not execute the sale deed and persuaded the plaintiff to come after a week and also undertook to execute the sale deed and have it registered in the Registrar Officer. While on 28.6.1979 after paying the money to the defendant at the insistence of the plaintiff, Ex.A.1 receipt is said to have been obtained from the defendant Ex.A.l is said to be the receipt given by the defendant on 28.7.1979. This was also given only after the plaintiff demanded some acknowledgment for having received the entire sale consideration Ex.A.l reads as follows:-
If the sale consideration was arrived at after negotiation in the presence of witnesses and if the entire consideration also has been paid to the defendant who wanted the plaintiff to come after a weeks time for registration of the sale deed, in respect of which ihe plaintiff wanted a receipt for payment of money, definitely, there could have been mention about the agreement between the parties, the Survey number and extent of the properties alleged to have been agreed to be sold and also with regard to the oral agreement but, strangely, Ex.A.l receipt does not refer to any agreement with regard the sale and the amount being received towards sale consideration. Therefore, recitals found in Ex.A.1 would show that the document could not have been obtained as alleged by the plaintiff in token or acknowledgment of payment of entire consideration. This document could not have been obtained by the plaintiff especially, after paying full consideration and after the defendant has declined either to execute an agreement of sale or execute the sale deed.
11. It is only on the basis of the receipt, the plaintiff, claims to have proved the earlier sale agreement alleged to have taken place on 15.6.1979. No doubt, the plaintiff has examined himself as P.W.1 besides P.Ws.2 and 3. The case of the plaintiff is sought to be corroborated by the evidence of P.Ws.2 and 3, but P.W.2 and 3 are close relatives of the plaintiff and therefore, they are interested witnesses P.W.1 in his evidence denied the relationship. But it has been elicited from P.W.2 that himself and the plaintiffs brother have married sisters. It is also elicited that P.W.2 is a cousin or nephew of P.W.1. Moreover, the presence of P.W.2 and P.W.3 appears to be artificial and improbable.
12. P.Ws.2 and 3 claim to have been present when negotiations for the sale took place on 15.6.1979, again on 28.6.1979 when the defendant came to the house of the plaintiff and received the entire sale consideration. It is also stated that these two witnesses also accompanied the plaintiff and the defendant actually, to the suit property when possession was handed over to the plaintiff. There is absolutely no reasons for these two persons being present on all these occasions. Moreover, if they have been present and if the agreement has been reached after negotiations between the parties concerned in the presence of P.W.2 and 3, definitely, the agreement would have been reduced to writing and signed and attested by these witnesses. These witnesses do not offer any reasonable explanation as to why they have been present on all these occasions and why in respect of the transaction no document was obtained. The plaintiff sought to explain it away by stating that the defendant said that the transaction itself could be completed within a week or ten days and therefore, there was no necessity for putting it in white and black. Accordingly, the defendant has mobised the necessary finds and it was the defendant who is sought to have gone to the house of the plaintiff and received the money. If the defendant has gone to the house of the plaintiff and received the money and that too, in the presence of P.Ws.2 and P.3, naturally, agreement could have been reduced to writing but there was no agreement of sale. In fact, the plaintiff is said to have demanded some evidence by way of agreement of sale when the entire money was paid. If such demand has been made and if the money has been paid under such circumstances, the defendant could not have reduced the request of the plaintiff. Moreover, if under such circumstances money has been paid and the plaintiff insisted upon the document, Ex-A will be the last document which could have satisfied the demand of the plaintiff. In fact, Ex.A.1 does not even appear to be a normal receipt. If Ex.A.1 is obtained as receipt for payment of entire sale consideration of Rs.5,250 definitely, mention would have been made about the earlier agreement of sale the particulars with regard to the land or field for which the sale consideration has been paid and also for entire consideration. But none of these things found place in Ex.A.l and Ex.A.1 by itself appears to have come into existence under suspicious circumstances because the words are ambiguous and it has not spelt out as to what purpose the money was paid or the receipt was given. The defendant has stoutly denied having issued this receipt. The defendant has also denied having entered into any oral agreement for the sale of the suit property in favour of the plaintiff.
13. The plaintiff would further claim that the entire money was paid on 28.6.1979 and possession was also given to him. In fact, P.W.2 and 3 would claim that they also accompanied D.W.1 the defendant and others to the suit land when possession was handed over by the defendant to the plaintiff. So, on 28.6.1979, the plaintiff is said to have obtained possession of the suit property in pursuance of agreement of sale. In fact, the plaintiff and other witnesses would claim that in their presence the separating ridges were removed. Both of these witnesses wanted the cause to infer that since suit property is a small plot and lying surrounded by the lands of the plaintiff, they were all subsequently being enjoyed by the plaintiff as a single unit or plot. If this is really so, the plaintiff must have taken out a commission either initially at the time of filing of the suit or atleast prior to the recording of the evidence. The Commission could have been taken out and could have pointed out to the commissioner the fact about entire property including the suit property lying as a single plot in the midst of lands of the plaintiff. Strangely, the plaintiff has not chosen to do any of these things. In fact, the plaintiff in his evidence refers to the fact that the surrounding lands were being irrigated by above-well situated in the plaintiffs land wherein a motor pump set had been installed. If really possession has been handed over to the plaintiff on 26.8.1979, and if thereafter till filing of the suit, he was in possession and enjoyment of the suit property, this could have been very well proved by taking out a commission and pointing out to the commissioner that the suit lands are being irrigated by the water taken out from the bore- well situated inside the lands belonging to the plaintiff. But no such attempt was made. On the other hand, the plaintiff has relied upon their own evidence of himself and his own relations.
14. The plaintiff also has failed to produce any documents, which subsequently came into existence after the alleged agreement. First of all, the agreement is said to have been concluded on 15.6.1979 and the entire amount was is to have been paid on 28.6.1979 and possession also said to have given to the plaintiff. According to the plaintiff, the defendant at the time promised to come and execute the sale deed within a weeks time. The plaintiff must be aware of the fact that neither for the agreement nor for payment of entire consideration there is any documentary evidence apart from Ex.A.l receipt, which also does not, on the face of it show or reflect any agreement of sale or payment of consideration therefore, he would have immediately called upon the defendant by issuing a notice to come and execute the sale deed. P.Ws.2 and 3 who claim to have been present on the first day when negotiation took place and on the second day when the entire sale consideration was paid and also on the same day when the possession is said to have been handed over to the plaintiff, but strangely, neither P.W.2 nor P.W.3 claim to have gone and asked the defendant to come and execute the sale deed in favour of the plaintiff. The payment of consideration said to have been made by the plaintiff on 28.6.1979. Thereafter, there is absolutely nothing to show that the plaintiff ever demanded the defendant to execute, the sale deed and to complete the transaction. Ex.A.2 notice has been sent by the plainliff admittedly, only on 25.11.1981. The entire sale consideration also, as pointed out, is said to have been paid by the plaintiff to the defendant on 28.6.1979 and for about 2 i/2 years, the plaintiff has not moved his little finger. There is absolutely no evidence to show that he ever demanded the defendant to execute the sale deed. The long interval and silence of the plaintiff during this period must necessarily prove fatal to the case of the plaintiff.
15. The plaintiff claims to have been put in possession of lands. The plaintiff claims that the suit lands were annexed to his own lands and enjoyed as a single plot. Naturally after the entire sale consideration is paid by the plaintiff, the defendant cannot be expected to pay the kist. The plainliff claims to have been paying the kist but he has not produced any kist receipt. Some questions have been put to P.W.1 in re-examination and he has stated that he went to V.M. Office and tendered the kist. Apart from that he does not claim to have done anythings further. Anyhow, during his examination in chief, he never claimed that he made any payment towards kist and this is also highly improable if the plaintiff is in possession and if the defendant has received the entire consideration. According to the plaintiff the defendant has been postponing the execution of the sale deed. If so the plaintiff would not have been quiet for 2 1/2 years without the kist to the lands. If really, the defendant has received the entire amount and the defendant has agreed to execute the sale deed, one cannot expect the defendant to pay the kist. Naturally, if the plaintiff offered to pay kist, the V.A.O. could not have refused. Anyhow, there is no evidence that the plaintiff offered to pay kist, eventhough he claims to have been in possession. Learned District Munsif and the Subordinate Judge has failed to consider this aspect. The burden is cast on the plaintiff to prove the oral agreement and the possession claimed by him and also to prove the payment of entire sale consideration. The plaintiff has miserably failed to prove all these things and the evidence of P.Ws.2 and 3 cannot be relied upon because their evidence is highly artificial and they also happen to be close relatives of P.W.1.
16. On the other hands, the defendant has produced documentary evidence to show that it is during the crucial period 1979-1981, he has been in possession and enjoyment of the property and this must have been sufficient to reject the case of the plaintiff. Exs.D.2 to D.5 are the Adangal extracts for fasli year 1388 to 1391 corresponding to 1978 to 1981. There are entries in the above said Adangal extracts to show that during this period he has paid kist and raised crops and it is stated that the crops have been raised only by the defendant. Learned counsel for the plaintiff explained this by stating that when patta has not been changed, usually, the name of the pattadar would find place in the Adangal records and only under such circumstances the name of the defendant is found. These documents are produced on the said of the defendant to show that conlrary to the pleadings of the plaintiff he has been in possession and enjoyment. The plaintiff has failed to produce documentary evidence which he could have done in respect of the oral agreement. But he has failed to do so. Both the Courts below have not properly appreciated the evidence available in this case both oral and documentary and that too. produced by the defendant. The plaintiff has failed to prove his case. The plaintiff has not adduced proper evidence. The evidence adduced on the side of the plaintiff cannot be called reliable or credible. There is total lack of documentary evidence to corroborate the oral agreement and payment of entire sale consideration. While so, both the courts below have miserably failed to appreciate these documents filed on behalf of the defendant but have strangely accepted the explanation offered by the plaintiff. There is total failure on the part of both the courts below to consider the material evidence available and while the evidence adduced on the side of the defendant was not considered. In fact, both the trial court and the appellate court also, seem to have come to a conclusion based on is own observation. When the plaintiff himself has not asked the court to take specimen signature of the defendant, for getting them compared by the expert, learned munsif seems to have directed the defendant to affix his signature in a document and he has also marked certain admiited records connected with the case wherein the signatures of the defendant were also found. He has proceeded to compare the specimen signature obtained by him and has commented upon it. The plaintiff has not explained as to why he has not sought for the opinion of the expert in respect of the alleged signature obtained in Ex.A.l. Therefore the court need not have taken the trouble of comparing the signature. No doubt, it is open to the court to compare and come to a conclusion. But even such conclusion has to be based on reasonings and must be the comparison on the disputed signature with the admitted signature. So, there has been total misreading of evidence and material records have not been given due consideration, whereas the oral evidence adduced on the side of the plaintiff has been accepted without giving sufficient reasons. The conclusion and reasoning of the courts below appear to be perverse and anyhow not supported by material evidence. Therefore, I am of the opinion that this court is very well justified in interfering with the finding and conclusions of the courts below by allowing the second appeal. On the other hand, there are documentary evidence in respect of the case of the defendant, which has not been properly considered by the courts below. Therefore, I have no hesitation in reversing the judgment and decree of the courts below.
17. In the result, the appeal is allowed and the plaintiff's suit for specific performance is dismissed however, without costs.