Madras High Court
) Kader Pathu vs ) Ayisha Gani (Died) on 11 May, 2016
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 11.05.2016
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
S.A.(MD) No.1035 of 2009
and
M.P.Nos.1/2009 and 1/2015
1) Kader Pathu
2) Kamarunish
3) Badurnisha
4) Ismail Banu
5) Mohammed Sath Sadhik Banu
6) Anees Fathima
7) Mumtaj Begum
8) Mohammed Ismail
9) Mehraj Banu
10)Sabeena Yasmin
11)Ramjan Begum .. Appellants
Vs.
1) Ayisha Gani (died)
2) M.Rahmathul Ayisha Banu
3) Kamartheen
4) Asraf Ali
5) Razzak
6) Jaffar Ali
7) Aneesh
8) Ayubh Khan .. Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure,
against the judgment and decree of the Additional District & Sessions Judge
(Fast Track Court) Ramanathapuram dated 15.07.2009 made in A.S.No.9 of 2007
confirming the judgment and decree of the Sub court, Paramakudi dated
16.03.2007 made in O.S.No.10 of 2005.
!For Appellants :: Mr.M.Arumugam
for M/s.Ajmal Associates
^For Respondents :: Mr.S.Ramesh for R2, 7 and 8
:J U D G M E N T
The defendants in the original suit are the respondents. The suit came to be filed for the relief of specific performance directing the defendants to execute a sale deed in terms of the suit agreement for sale dated 12.10.1992 allegedly executed by the first defendant agreeing to sell the suit property in favour of K.P.M.Fakkir Ahamed, the father of the plaintiffs. The defendants resisted the suit contending that no such sale agreement was executed by the first defendant; that the said document could have been created with the intention of grabbing the suit property and that the relief of specific performance could not be granted when the plaintiffs approached the court after a lapse of 13 years without taking any steps to proceed with the transaction on the basis of the suit sale agreement. The plaintiffs had also taken a plea that the first defendant, at the time of execution of the sale agreement, also handed over possession of the suit property in part performance of the contract. The said contention was also denied by the defendants.
2. In the trial, three witnesses were examined as PWs.1 to 3 and 12 documents were marked as Exs.A1 to A12 on the side of the plaintiffs, whereas two witnesses were examined as DWs.1 and 2 and 12 documents were marked as Exs.B1 to B12 on the side of the defendants.
3. The learned trial Judge, on an appreciation of evidence came to the conclusion that the suit agreement for sale produced as Ex.A1 could not be true and it should have been fabricated; that the suit for specific performance was also time barred; that the claim of the plaintiffs that their father K.P.M.Fakkir Ahamed got possession of the suit property on the date of the suit sale agreement in part performance of the contract for sale was also not substantiated; that the defendants were able to prove that the property was purchased by the second defendant from the first defendant under a sale deed dated 05.08.2004 executed by the first defendant through her power agent Mohammed Ali under Ex.B7; that there after the property was in possession and enjoyment of the second defendant and that therefore, the claim of the plaintiffs that their father was in possession and after him they were in enjoyment of the suit property as agreement holders and they were entitled to the relief of specific performance, based on Ex.A1-Agreement for sale could not be sustained. Accordingly, the learned trial Judge, by a judgment and decree dated 16.03.2007 dismissed the suit O.S.No.10/2005 filed by the plaintiffs for the relief of specific performance.
4. On appeal to the lower appellate court, the learned lower appellate Judge, namely the court of the Additional District Judge, Fast Track Court, Ramanathapuram, framed the following points for consideration in the appeal:
1) Whether the suit sale agreement Ex.A1 is valid agreement?
2) Whether the plaintiffs were always ready and willing to perform his part of contract?
3) Whether the time was essence of contract?
4) Whether the suit is barred by limitation?
5) Who is in possession over the suit property?
6) Whether the appeal is to be allowed?
The learned lower appellate Judge, after hearing and on re-appreciation of evidence pronounced a judgment on 15.07.2009. In the said judgment, the learned lower appellate Judge, concurred with the finding of the trial court and held that Ex.A1 - suit agreement for sale was not proved to be genuine and on the other hand, the preponderance of probabilities would show that the same should have been created. So far as the question of limitation is concerned, the lower appellate Judge held that the bar of limitation did not get attracted, since the plaintiffs got notice of the defendant?s refusal to perform only on receipt of reply notice dated 20.01.2005 and the suit came to be filed on the same day. However, surprisingly, the learned lower appellate Judge, chose to hold that, since the date of refusal to perform was not mentioned in the plaint, the suit was premature and it had been filed before the arisal of the cause of action, without mentioning the date of refusal to perform. So far as the claim of possession of the plaintiff was concerned, the learned trial judge concurred with the finding of the trial court and held that the plaintiffs were in possession and enjoyment of the suit property and on the other hand, the defendants had not proved that the suit property was in possession and enjoyment of the defendants. Regarding the question whether time was the essence of the contract, the learned lower appellate Judge held that since no time was fixed, the question did not arise. Regarding the question whether plaintiffs were always ready and willing to perform their part of the obligations under the agreement for sale, the learned lower appellate Judge held that the inaction for more than 13 years would show that they failed to prove their readiness and willingness to perform their part of the obligations under the agreement, even if the agreement shall be assumed to be true. The net result is that the learned lower appellate Judge dismissed the appeal confirming the decree of the trial court dismissing the suit for specific performance without cost. The judgment of the lower appellate court came to be pronounced and the decree came to be passed on 15.07.2002. It is as against the said decree of the lower appellate court, the present second appeal has been filed on various grounds set out in the memorandum of grounds of second appeal.
5. Section 100 of the Civil Procedure Code, 1908 says that unless otherwise expressly provided in the body of the Civil Procedure Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. It also provides that the Memorandum of Second Appeal shall precisely state the substantial question of law involved in the second appeal and the High Court, if satisfied that a substantial question of law is involved in the case, it shall formulate such question and that thereafter, the appeal shall be heard on the substantial question of law as formulated by the court. It also provides that the respondent in the second appeal shall have the right to argue that no such substantial question of law is involved in the second appeal. In purported compliance with the requirement found in section 100 CPC, the appellants have stated the following questions to be the substantial questions of law involved in the second appeal:
a) Whether the finding of the courts below that the sale agreement Ex.A1 is barred by time is wrong in view of the specific clause in the agreement that the vendee has to execute the sale deed as and when demanded by the purchaser and whether the interpretation given by the courts below are in tune with Article 54 of the Limitation Act?
b) Whether defendants are legally estopped from contending that plaintiffs are not ready and willing to perform their part of sale agreement when the defendants dispute the genuineness of the same and when lions share of price was already paid as per the recitals of the sale agreement?
c) Whether the finding of the courts below that Ex.A1 is not true is wrong since the courts below have not considered the admissible evidence of P.W.2 & 3 on the aspects and whether the finding of the courts below is against evidence and hence perverse and therefore liable to be set aside?
d) Whether the courts below are legally wrong in holding that Ex.A1 is not valid on the ground that only the vendor has signed and the vendee has not signed?
e) Whether the failure of the trial court to frame proper issues has resulted in a wrong decision?
f) Whether the failure of the 1st appellate court to frame proper points for consideration has resulted in a wrong decision?
6. Notice before admission was issued and on appearance of the respondents/defendants, this court, upon hearing both sides regarding the substantial questions of law, if any, involved in the second appeal, has formulated the following to be the substantial questions of law involved in the second appeal.
Substantial Questions of Law:
1) Whether the courts below committed an error in holding that the suit for specific performance filed on Ex.A1-agreement was barred by limitation providing a wrong interpretation to Article 54 ofthe Limitation Act, 1963?
2) Whether the finding of the courts below that Ex.A1-Agreement is not true is perverse?
3) Whether the courts below committed an error in holding that the plaintiffs failed to prove their readiness and willingness and hence they were not entitled to the relief of specific performance?
4) Whether the lower appellate court committed an error in not properly considering the fact that the trial court did not frame an issue as to the genuineness of Ex.A1?
5) Whether the finding of the court below that the claim of the plaintiff to have obtained possession of the suit property in part performance of the agreement for sale was not proved is perverse?
After the formulation of the above said substantial questions of law, further arguments advanced on both sides were heard and the certified copies of the judgments and decrees of the courts below and all the materials available on record sent for from the courts below were also perused and taken into consideration.
7. The first and foremost contention of the learned counsel for the appellants is that the trial court failed to frame proper issues and that hence it resulted in a wrong decision being rendered by the trial court. The learned counsel referred to the non-framing of an issue as to whether Ex.A1- Agreement for sale is true or not, eventhough the defendants had denied the case of the plaintiffs that the first defendant executed Ex.A1-Agreement for sale in favour of K.P.M.Fakkir Ahamed, the father of the plaintiffs. Of course it is true that the learned trial Judge has not framed a specific issue as to "whether the suit agreement for sale is true or not?" But it is a fact that cannot be denied that the trial started only after the settlement of issues and the plaintiffs did not ask for framing of such an issue. Even at the time of trial, the plaintiffs did not ask the trial court to frame such a specific issue. However, in dealing with the issue as to whether the plaintiffs were entitled to the relief of specific performance, the court below rendered a finding that Ex.A1-Agreement was not proved to be genuine and that on preponderance of probabilities it appeared to have been fabricated. Such a finding of the trial court was rendered not without affording an opportunity to the parties to lead evidence regarding the genuineness or otherwise of the suit agreement for sale. A perusal of the records shows that the parties to the suit were conscious of their respective pleadings and with such consciousness, they not only went for trial, but also led evidence regarding the proof of execution and genuineness of Ex.A1- Agreement for sale. The appellants/plaintiffs cannot be heard to contend that they were denied the opportunity of leading evidence regarding the execution and genuineness of Ex.A1-Agreement for sale. In fact, a specific finding came to be rendered by the trial court negativing the genuineness of Ex.A1- agreement for sale, based on the analysis of the evidence adduced on both sides. When the plaintiffs preferred an appeal to the lower appellate court in A.S.No.9 of 2007, the lower appellate court removed the irregularity, which did not go to the root of the case by formulating a specific point for determination regarding the validity of Ex.A1-Agreement for sale.
8. The first point for consideration formulated by the lower appellate court is whether the sale agreement (Ex.A1) is valid document? It is also obvious from a reading of the judgment of the lower appellate court that no grievance was aired by the counsel for the plaintiffs regarding the non- framing of an issue as to the validity of Ex.A1-Agreement by the trial court. It is also obvious that the counsel for the plaintiffs did not argue before the lower appellate court that the plaintiffs were prejudiced by non- provision of an opportunity to lead evidence regarding the execution and validity of Ex.A1-Agreement for sale. On the other hand, the only contention raised before the lower appellate court was that though sufficient evidence regarding the execution of Ex.A1-Agreement for sale and passing of consideration was adduced, the trial court rendered an erroneous finding on those aspects. The learned lower appellate Judge, on re-appreciation of evidence concurred with the finding of the trial court regarding the genuineness and validity of Ex.A1-Agreement for sale by holding that the execution of the said agreement was not proved and on the other hand by preponderance of probabilities it stood disproved. The lacuna caused in the proceedings before the trial curt has been rectified by the appellate court in framing a specific point for determination regarding the genuineness and validity of Ex.A1-Agreement for sale and rendering a finding on such point for determination, which finding concurred with the finding of the trial court. Therefore, this court comes to the conclusion that the non-framing of an issue by the trial court regarding the genuineness and validity of Ex.A1 ? Agreement for sale is of no consequence, since the plaintiffs knowing fully well that their claim was resisted by the defendants, based on their contention that the suit agreement for sale was not genuine and it was fabricated, went for trial and led evidence fully regarding the said point and that the omission made by the trial court was rectified by the learned lower appellate judge by formulating a specific point for determination. Hence this court holds that the failure to frame an issue regarding the genuineness and validity of Ex.A1-agreement for sale did not result in any prejudice to the plaintiffs. The contention that the lower appellate court did not consider the effect of non-framing of a specific issue regarding the genuineness of Ex.A1-Agreement for sale cannot be countenanced. The 4th substantial question of law is answered, accordingly, in favour of the respondents/defendants and against the appellants/plaintiffs.
9. The next contention raised by the learned counsel for the appellants/plaintiffs is that both the courts below have rendered a perverse finding to the effect that the execution of Ex.A1-Agreement for sale was not proved by the plaintiffs. Learned counsel for the appellants contended that the execution of the suit sale agreement by the first defendant in favour of K.P.M.Fakkir Ahamed, the father of the plaintiffs, had been proved by oral and documentary evidence, including examination of the attestors of Ex.A1- Agreement for sale; that the plaintiffs? possession of the suit property in part performance of the agreement for sale had also been proved by oral and documentary evidence and that the courts below, relying on a single factor that the stamp paper on which the agreement was executed, was purchased at Madurai on the date of agreement itself, whereas the agreement was stated to be executed at 12.30 p.m at Chennai on the very same day, held that the suit sale agreement was not genuine.
10. On the other hand, the learned counsel for the respondent contended that a person, after purchasing the stamp paper from a Stamp Vendor at Madurai in the morning could not have reached Chennai at 12.30 p.m and that the said singular fact itself was rightly considered by the courts below to be negativing the genuineness of Ex.A1-Agreement for sale. In 1992, it would have taken a minimum of 8 hours if a person travelled from Madurai on road by a car to Chennai. Learned counsel for the respondents/defendants pointed the fact that even PW2, the first attestor did not say that the agreement was prepared in his presence but stated that by the time he reached the place of execution of the agreement, the agreement had already been typed and he signed as a witness in the said agreement, which had already been prepared. The learned counsel for the respondents/defendants also pointed out the fact that the entire consideration minus Rs.500/- alone was said to have been paid by way of adjusting the cost of the steel and other building materials allegedly supplied to the first defendant for constructing a house towards the sale consideration under the agreement for sale. Learned counsel for the respondents/defendants also pointed the fact that no bill for supply of steel and other building materials to the first defendant came to be produced in proof of the contention of the plaintiffs that the amount due from the first defendant for the supply of the said materials was treated as the advance and major part of the sale consideration for Ex.A1-Agreement for sale.
11. The above said rival submissions made on both sides were taken into consideration by this court.
12. It is an admitted fact that though the agreement is said to have been executed on 12.10.1992 and a sum of Rs.48,000/- was paid by way of adjusting the amount due from the first respondent/first defendant towards the sale consideration, leaving only a paltry sum of Rs.500/- to be paid for the completion of the sale transaction, till the death of the purchaser under Ex.A1-Agreement, namely K.P.M.Fakkir Ahamed in 1995, he did not take any steps to have the sale deed executed in his favour by the first defendant and registered. Nearly 10 years after the death of the vendor under the agreement, his legal representatives chose to file the present suit for specific perfromance.
13. PW1-Fakhrudeen is none other than the husband of the third plaintiff Badurnisha. None of the plaintiffs chose to enter the Box to depose as to what transpired on the date of agreement for sale. In fact, the evidence of PW1-Fakhrudeen regarding the execution of Ex.A1-Agreement for sale is only hearsay and he had no personal knowledge of the execution of Ex.A1-Agreement. His evidence is not assertive that he knew the transaction. On the other hand, the very language used by him in his proof affidavit, accepted by the trial court as his evidence in chief examination, shows that he subsequently came to know that the first defendant for constructing a house had purchased steel and other building materials on credit to the tune of Rs.48,000/- from Rangoon Hardwares Mart run by K.P.M.Fakkir Ahamed at Chennai and that defendant agreed to sell the suit property for a sum of Rs.48,500/- to him agreeing to adjust Rs.48,000/- due to the above said K.P.M.Fakkir Ahamed on account of supply of steel and other buildng materials for the construction of the first defendant's house at Chennai towards the sale consideration and leaving only a sum of Rs.500/- to be paid by K.P.M.Fakkir Ahamed as and when he would like to have the sale deed executed and registered in his name. Even though he would have made an attempt to contend in his chief examination that possession of the suit proeprty was delivered to K.P.M.Fakkir Ahamed in part performance of the agreement on the date of agreement for sale itself and thereafter K.P.M.Fakkir Ahamed, the father of the plaintiffs enjoyed the property, he would also state that the above particulars were found recited in the suit agreement for sale. In the subsequent paragraphs of his proof affidavit, he claimed to have seen the execution of Ex.A1-suit sale agreement and held out that he along with one Dasul Anbia son of Abdul Khader Mohideen and one Shanmugam son of Kalimuthu, who was cultivaitng the land, signed the agreement as attestors. Though he asserted that he saw the other two witnesses signing the agreeemnt as attestors, there is no clearcut assertion that he saw the first defendant signing the agreement.
14. Ex.A1 has been produced as the suit sale agreement that came to be execued by the first defendant in favour of K.P.M.Fakkir Ahamed, the father of the plaintiffs. Ex.A2 has been produced as the original mortgage deed already executed by the first defendant in favour of K.P.M.Fakkir Ahamed prior to the execution of the suit sale agreement. Ex.A3 has been produced as the patta in the name of the first defendant Ayisha Gani and Ex.A4 has been produced as another patta. The said documents were claimed to have been handed over to K.P.M.Fakkir Ahamed at the time of execution of Ex.A1- Agreement for sale. However during cross examination, PW1 admitted that Kamarudeen, husband of the first defendant Ayisha Gani was employed in Kuwait; that the father of the first defendant Ayisha Gani was having a separate properties at Chennai and he was also doing business there. Though he would admit that accounts would be maintained for the purchase made by the customers and that the accounts would be available regarding the purchase made by Ayisha Gani, the first defendant, from the hardware shop of K.P.M.Fakkir Ahamed, he also contended that the account would have been closed on expiry of five years. Though he would admit that the production of the accounts would show the commodities purchased by the first defendant, he gave an excuse for non-production of the account books by stating that the accounts were not available as on the date of examination of PW1. Apart from that the oral testimony of PW1 is also not the evidence of a person who directly witnessed the dealings, namely purchase of steel from the Hardware Mart of K.P.M.Fakir Ahamed. Not even a scrap of paper pertaining to the said business transaction came to be produced on the side of the plaintiffs.
15. One Dasul Anbia has been examined as PW2. He would state that on the date of agreement, namely 12.10.1992 he had gone to the shop of K.P.M.Fakkir Ahamed and that at that point of time, the first defendant Ayisha Gani agreed to sell her property for a sum of Rs.48,500/-. His further statement is to the effect that out of Rs.48,500/-, Rs.48,000/- was adjusted towards the steel bars purchased by the first defendant Ayisha Gani and it was agreed that K.P.M.Fakkir Ahamed could pay the balance amount of Rs.500/- and get the sale deed executed and registered in his favour. He would also state that he signed as the first attestor in Ex.A1-sale agreement and following him PW1-Fakhrudeen and PW3-Shanmugavel also singed as attestors of Ex.A1-Agreement for sale. It is also his evidence that the first defendant Ayisha Gani handed over the parent deeds, namely sale deed, mortgage deed and patta to K.P.M.Fakkir Ahamed and that possession of the property was also handed over to the purchaser under the agreement for sale. It is quite obvious that he is a resident of Kakur village, Mudukulathur Taluk, Ramanathapuram District. He claims to have gone to Chennai on 12.10.1992 and at that point of time he attested the suit sale agreement executed by the first defendant in favour of the plaintiffs' father. It is his further statement that whenever he would go to Chennai, he used to go to the shop of the father of the plaintiffs; that when he went to the said shop on the date of agreement for sale at about 12.00 Noon, K.P.M.Fakkir Ahamed, his son-in- law Fakhrudeen (PW1), Shanmugavel (PW3) and Ayisha Gani (first defendant) were there and that before his arrival, the agreement had been kept prepared. Though in chief examination he would have stated that a sum of Rs.48,000/- the amount due from the first deendant for the supply of iron bars for the construction of the building of the first defendant in Chennai was agreed to be adjusted towards the sale consideration, leaving only a balance of Rs.500/-, he made a clear admission in cross examination that he was not there when the negotiation took place and that he simply signed when he was asked to sign the agreement as an attestor. His evidence regarding consideration also seems to be not direct, but hearsay. PW2 did not have seen the subject matter of the agreement and he was only informed that PW3- Shanmugavel was enjoying the property. PW2 did not know where from the stamp papers for the preparation of Ex.A1-agreement was purchased.
16. The above said Shanmugavel figured as PW3. In his chief examination he stated that he was supervising the cultivation on behalf of the plaintiffs; that he went to the hardware shop of K.P.M.Fakkir Ahamed in Chennai on 12.10.1992; that at that point of time, the first defendant Ayisha Gani agreed to sell the suit property to K.P.M.Fakkir Ahamed for a sum of Rs.48,500/-, out of which a sum of Rs.48,000/- was adjusted towards the cost of steel supplied to the first defendant for the construction of her house leaving only a balance consideration of Rs.500/- and that in the agreement executed by the first defendant in favour of K.P.M.Fakkir Ahamed, he also signed as an attestor. It is also his assertion in his chief examination that he saw the first defendant handing over the parent document, namley the sale deed, mortgage deed and patta to K.P.M.Fakkir Ahamed at the time of execution of Ex.A1-Agreement for sale. The suit sale agreement is said to have been executed on 12.10.1992. According to his testimony he was cultivating the said land for 15 years as on 19.06.2006, the date n which he was examined as PW3. However he made a clear admission that there is no document to show that he was cultivating the suit property for over 15 years. His evidence in the cross examination is to the effect that already he was supervising the properties of K.P.M.Fakkir Ahamed; that in that respect he went to Chennai to see the said Fakkir Ahamed on 12.10.1992 and that by chance he happened to be a witness for the execution of an agreement for sale. He also gave a different version to the effect that it was PW1, who took him to the shop of K.P.M.Fakkir Ahamed.
17. He also admitted that he did not personally witness the preparation of Ex.A1-Agreement for sale and that he did not know what negotiations took place between the first defendant Ayisha Gani and K.P.M.Fakkir Ahamed. It is also the evidence of PW3 that he first went to Madurai and from there he went to Chennai by bus. However he was unable to say how much would be the travel time between Madurai and Chennai.
18. A perusal of the evidence of PWs.1 to 3 will make it clear that none of the above said witnesses was present when negotiation allegedly took place and when the agreement was prepared. They are also not in a position to say at what time the stamp paper used for the preparation of Ex.A1 - Agreement was purchased and by what means of transportation the same was taken to Chennai to prepare Ex.A1-Agreement using the said stamp paper. Ex.A1- Agreement has been prepared in a fifty ruppes stamp paper purchased on 12.10.1992 at Madurai from one S.Subbiah Chettiar, Stamp Vendor. It was purchased in the name of K.P.M.Fakkir Ahamed. It is not the evdience of any of the witnesses examined on the side of the plaintiffs that they purchased the stamp paper in the name of K.P.M.Fakkir Ahamed on 12.10.1992 and took it to Chennai on the same day for the execution of Ex.A1-Agreement for sale. On the other hand, PW1, during cross examination, would state that the stamp paper was purchased by his father-in-law K.P.M.Fakkir Ahamed at Madurai. If at all K.P.M.Fakkir Ahamed was available at Madurai to purchase the stamp paper on 12.10.1992 and it was personally known to PW1, K.P.M.Fakkir Ahamed could have taken PW1, who is none other than his son-in-law and PW3 along with him to Chennai. The said evidence of PW1 will show that K.P.M.Fakkir Ahamed was available at Madurai on 12.10.1992 to purchase stamp paper. What is the mode of transportation used by him to reach Chennai from Madurai has not been spoken to by either PW1 or PW3. In fact PW1 does not speak about the mode of transportation used by him to go to Chennai from Madurai. On the other hand, PW3 has stated that he travelled by bus from Madurai to Chennai. According to this statement and also the statement of PW1, PW3 was taken to Chennai by PW1. Hence the necessary inference shall be that PWs.1 and 2 should have travelled by bus from Madurai to Chennai. The mode of transportation used by K.P.M.Fakkir Ahamed has not been spoken to by any of the witnesses. Since PW1 and PW3 were invited to Chennai for the purpose of being witnesses for the execution of Ex.A1 - Agreement for sale, the necessary inference shall be that K.P.M.Fakkir Ahamed also should have travelled with them by bus. But it is quite improbable that a person could have reached Chennai by bus before 12 noon after purchasing stamp paper from a stamp vendor at Madurai in the morning. The said improbability has been properly dealt with by the courts below.
19. In addition, it is also quite obvious that the normal method of preparing an agreement for sale shall be by making the agreement bilateral in which both the purchaser and the vendor would be signing. The evidence of PWs.1 to 3 that the agreement had been kept prepared when they went to the hardware shop of K.P.M.Fakkir Ahamed will also show that there is derth of reliable evidence regarding the execution of Ex.A1-agreement for sale. In addition, though the agreement recites that a sum of Rs.48,000/- which was due from the first defendant as cost of the steel supplied by K.P.M.Fakkir Ahamed from his hardware shop for the construction of her house, there is not even a scrap of paper, excepting Ex.A1, to show that the first defendant purchased steel from the hardware shop of K.P.M.Fakkir Ahamed on credit. The receipts books, duplicate credit bills, ledger, day book and other account books showing such transaction have not been produced. There is not even a single paper containing the signature of the first defendant, except Ex.A1, acknowledging the purchase of steel from the hardware shop of K.P.M.Fakkir Ahamed on credit. The respondents/defendants have stoutly denied the plaint averment that the first defendant had purchased steel for the construction of her house on credit. All the above said aspects were taken into consideration and scrupulously analysed by the courts below and the courts below, on proper appreciation of evidence arrived at a concurrent finding of fact that Ex.A1- agreement was not proved to have been executed by the first defendant and that the consideration quoted therein was not proved to have passed. The above said concurrent finding of the courts below holding that Ex.A1- Agreement was not proved by the plaintiffs to have been executed by the first defendant by adducing reliable evidence and that on preponderance of probabilities, the same was proved to have been fabricated, cannot be interfered with by the second appellate court. The concurrent finding of fact cannot be interfered with by the High Court in the second appeal excepting the cases in which such finding shall be perverse. Perversity of finding can occur in the following circumstances: findings based on no evidence; finding based on legally inadmissible evidence; a finding which no reasonable person would have arrived at based on the available evidence. In the case on hand, the finding of the courts below does not come under any one of the categories to hold it to be a perverse finding. Hence the attempt made by the learned counsel for the appellants to project the above said finding of the trial court and the lower appellate court regarding the genuineness of Ex.A1- Agreement for sale does not succeed and the said finding of the trial court does not warrant any interference by this court, as it cannot be termed perverse. The second substantial question of law is answered accordingly.
20. The next contention raised by the learned counsel for the appellants is that though the learned lower appellate judge came to a correct conclusion that the limitation did not start running in terms of Article 54 of the Limitation Act, 1963 till the plaintiffs received the reply notice containing refusal to perform, the learned lower appellate Judge committed an error in law holding that the suit for specific performance was premature and hence not maintainable. Of course it is true that the learned lower appellate judge committed an error in law holding that the suit for specific performance was premature and hence not maintainable. The learned lower appellate judge, adverting to the contentions of the parties regarding limitation, held that the agreement contained no specific time for the completion of the transaction and that in such an eventuality limitation would start running only from the date on which the plaintiffs got notice of refusal to perform. Article 54 reads as follows:
54.
For specific performance of a contract.
Three years The date of fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.
20. A consideration of the said Article will make it clear that in respect of the agreements which prescribe a time for performance, limitation shall start running from the date of expiry of the time stipulated therein and that in case no such time is prescribed, limitation shall start running from the date on which the plaintiff gets notice of refusal to perform by the opposite party. Before the filing of the suit, the plaintiffs caused a pre- suit notice calling upon the first defendant to get the balance amount of consideration and execute the sale deed in accordance with the suit agreement for sale. The office copy of the pre-suit notice has been marked as Ex.A6. It was received by the first defendant and the postal acknowledgment card has been marked as Ex.A8. The first defendant issued a reply notice and the same has been marked as Ex.A7. Office copy of the same has been marked as Ex.B1. The reply notice is dated 20.01.2005 and Ex.B2-Acknowledgment card shows that it was received by the counsel for the plaintiffs on 24.01.2005. The suit came to be filed on 24.01.2005 itself. However, in the cause of action column nothing has been mentioned regarding the reply notice containing refusal to perform. Of course, it is obvious that after sending the notice calling upon first defendant to execute the sale deed in accordance with the suit sale agreement for sale, the suit came to be filed within 12 days and it so happened the reply notice sent by the first defendant was also received by the counsel for the plaintiffs on the date of filing of the suit.
21. The pertinent question that arises for consideration is when the vendor under the agreement is keeping quiet can the purchaser be said to be filing a premature suit, if he files a suit even before receipt of any notice or reply notice containing refusal to perform. Cause of action for a suit is nothing but a bundle of facts and the refusal to perform is one such fact. Refusal to perform cannot be said to be the sole factor giving rise to a cause of action. By the conduct of the vendor under the agreement for sale, the purchaser under the agreement for sale can apprehend refusal on the part of the vendor under athe agreement and rush to the court in order to prevent any sale taking place giving a right to third party purchaser under such sale to claim to be a bonafide purchaser for valuable consideration without notice of the agreement. In such a case, one cannot be denied the relief on the ground that he has approached the court without first calling upon the vendor under the agreement to execute the sale deed and without waiting for a reply to be sent by the vendor under the agreement for a notice sent by the purchaser under the agreement calling upon the vendor to execute the sale deed in terms of the agreement. In fact the execution of the agreement and the mere failure to complete with the transaction shall give rise to a cause of action for fling a suit for specific performance. If at all the defendant was also ready and willing, but the suit came to be filed without giving an opportunity to him to complete the transaction, then the defendant can very well express his preparedness to execute the sale deed in terms of the agreement and urge the court to award cost or exemplary cost against the plaintiff for rushing to the court. But that does not mean that the plaintiff has to be non-suited for the relief of specific performance. Hence, though the finding of the lower appellate court that the suit is not barred by limitation is correct, it has committed an error in law in holding that the suit was filed prematurely and there was no cause of action for filing of the suit, as the suit came to be filed without waiting for a reply to be sent by the first respondent/first defendant. If the plaintiffs are to be non-suited on the ground that the denial had taken place only subsequent to the presentation of the suit, it will be ritualistic and hyper technical to non- suit the plaintiff and drive him to file a frsh suit based on the subsequent arisal of the cause of action pursuant to the refusal to perform. Hence the finding of the lower appellate court that the suit was premature and hence was not maintainable deserves to be interfered with and set aside. The first substantial question of law is answered accordingly.
21. The next question to be considered is whether the plaintiffs were successful in proving that they were in possession of the suit property in part performance of the agreement for sale. In order to substantiate their contention, they relied on Exs.A2 to A5, the title deeds relating to the suit property. Learned counsel for the appellants pointing out the fact that the said documents were produced by the plaintiffs and PWs.1 to 3 also spoke about the entrustment of those documents to K.P.M.Fakkir Ahamed at the time of execution of Ex.A1-Agreement for sale and contended that the courts below ought to have arrived at a conclusion that possession of the suit property right from the date of agreement for sale was with K.P.M.Fakkir Ahamed and after his death with the plaintiffs and that PW3-Shanmugavel was cultivating the said property on behalf of the plaintiffs. The first defendant has made it clear that the property lying on the north of the suit property was owned by K.P.M.Fakkir Ahamed; that during his life time he approached the first defendant and asked for the documents relating to the suit property for surveying the lands and fixing the boundaries; that in the confidence reposed on K.P.M.Fakkir Ahamed, she had handed over those documents to him, but later on forgotten to get back those documents; that after the death of K.P.M.Fakkir Ahamed, who was true to the first defendant, the plaintiffs have concocted an agreement for sale with the help of those documents and filed the frivolous suit making a false claim. She has also made it clear that at no point of time, the suit property was in possession of either K.P.M.Fakkir Ahamed or the plaintiffs or PW3. The survey notice regarding the mutation of names issued to the first defendant has been marked as Ex.A4 and the patta issued to her in respect of the suit property has been marked as Ex.A5. The mortgage deed executed by the original owner of the suit property in favour of the first defendant on 20.09.1985 has been marked as Ex.A2. Subsequently, the mortgagees executed a sale deed conveying the suit property to the first defendant. The said sale deed has been marked as Ex.A3. The first defendant has clearly explained the circumstances under which the said documents went into the hands of K.P.M.Fakkir Ahamed and the purpose for which she had handed over the same to K.P.M.Fakkir Ahamed. If at all possession was delivered in part performance of the agreement for sale on the date of agreement itself, namely 12.10.1992, the plaintiffs could have produced documents right from 12.10.1992 to show the possession and enjoyment of the suit property by K.P.M.Fakkir Ahamed till his life time and thereafter by the plaintiffs. The four documents sought to be projected as the documents evidencing their possession have been marked as Exs.A9 to A12. Ex.A9 is an order passed by the Tahsildar on an application submitted by the first defendant in the Grievance Day complaining that one Shanmugam (PW3) son of Kalimuthu, at the instigation of the people of K.P.M. Group, had trespassed into the property and praying for removal of such encroachment. The Tahsildar seems to have issued a direction to the Sub-Inspector of Police, Mudhukulathur police station to take steps for the removal of the encroachers. Ex.A10 is nothing but photographs allegedly taken showing the cultivation of cotton by PW3. Ex.A11 is a news item found in "Dinamalar" dated 22.04.2005 regarding the action taken by the police against one Mohammed Ali and Ex.A12 is a similar news item that appeared in "Dinavel" dated 23.04.2005. These documents came into existence subsequent to the filing of the suit. They show the rival actions taken by the parties to retain possession or take possession from the other. No importance can be attached to those documents. It is pertinent to note that there is no document prior to 06.01.2005 to show that the property was either in the possession and enjoyment of K.P.M.Fakkir Ahamed or in the possession and enjoyment of the plaintiffs or in the possession and enjoyment of PW3 as a cultivating tenant. No document has been produced to show that his name has been recorded as a cultivating tenant. Not even a single document has been produced to show that either K.P.M.Fakkir Ahamed or any one of the plaintifs or PW3 paid kists for the suit property.
22. On the other hand, the defendants, besides producing the patta, have also produced adangal extracts for the Faslis 1404, 1406, 1411 and 1413. They have also produced kist receipts for having paid the kist in the name of the first defendant for the Fasli 1407, 1410 and 1411. They have been marked as Exs.B5 and B6. It is obvious that on 05.08.2004 the suit property was purchased by the second defendant from the first defendant. From Ex.B9 it is also obvious that patta for the suit property has been changed in the name of the second defendant. The said sale deed was executed through Mohammed Ali, the Power Agent of the first defendant. The deed of Power of Attorney dated 07.07.2004 has been produced as Ex.B2. Considering all the above said aspects and also considering the tenor of the evidence of PW3-Shanmugavelu, the courts below arrived at a conclusion that the claim of the plaintiffs that they were in possession of the suit property in part performance of the agreement for sale could not be believed. The courts below have rightly held that PW3 was not in a position to give the particulars of the suit property and he was not able to produce any document to prove his enjoyment as a tenant under the owner of the property and he could not have been in possession and enjoyment of the suit property. In addition, the courts below have also held that since A1-Agreement itself has not been proved, the case of the plaintiffs that they were in possession of the suit property through PW3 was also not proved. The said finding of the courts below, which is a concurrent finding based on appreciation and re-appreciation of evidence by the trial court and lower appellate court, being the final court of appeal on facts, cannot be said to be perverse warranting interference by this court. Fifth substantial question of law is answered accordingly.
23. The next question that arises for consideration is, even if it is assumed for argument sake that the agreeemnt is true and valid, whether the plaintiffs are entitled to the relief of specific performance. The agreement for sale was allegedly executed on 12.10.1992. If at all the sale consideration quoted therein is Rs.48,500/-, out of which Rs.48,000/- was paid according to the recitals found in the agreement leaving a balance of a paltry sum of Rs.500/-, the purchaser under the agreement, namely K.P.M.Fakkir Ahamed could have very well paid the balance amount of sale consideration then and there itself or within a short time and got the sale deed executed in his favour. The very fact that the agreement, without even mentioning a time frame for the completion of the transaction, contains a recital to the effect that the vendor under the agreement should come and execute the sale deed as and when required by the purchaser under the agreement, coupled with the fact that the purchaser under the agreement and his legal representatives kept quiet for more than 13 years and then came forward with the present suit will make it clear that the same would show absence of readiness and willingness on the part of the plaintiffs right from the date of agreement till the date of filing of the suit. However, the learned counsel for the appellants would contend that major part of the sale consideration was paid and possession of the property was also delivered to the purchaser under the agreement in part performance of the agreement for sale; that only the first respondent/first defendant postponed the execution of the sale deed citing her personal inconvenience to come over to Mudhukulathur, Ramanathapuram District to execute the sale deed and that it was the first defendant, who was not ready and willing, whereas K.P.M.Fakkir Ahamed and after his death, the plaintiffs were ready and willing throughout. The said contention does not seem to be tenable. A person who has paid the major part of the sale consideration under the agreement should have taken steps within a reasonable time to have the sale deed executed and registered in his favour. During the life time of K.P.M.Fakkir Ahamed he did not even send a notice to the first defendant calling upon her to come and execute the sale deed in terms of the agreement for sale. He is said to have died in 1995. After his death his LRs, namely the plaitniffs had not chosen to issue a notice calling upon the first defendant to execute the sale deed till 12.01.2004. The same will show the lethargy on the part of the plaintiffs, which will negative their readiness and willingness to complete the transaction within a reasonable time. Considering all these aspects the courts below have rendered a concurrent finding that the plaintiffs did not prove their readiness and willingness to perform their part of the obligations under the agreement, even if it is assumed that the agreement is true. On the basis of the said finding, the courts below have arrived at a correct conclusion that the discretion of the court to grant the relief of specific peformance cannot be exercised in favour of the plaintiffs. However the learned counsel for the appellants argued that when more than 95% of the sale consideration has been paid, the readiness and willingness on the part of the purchaser under the agreement shall be presumed and that the escalation of the price of land should be taken in favour of the plaintiff/purhcaser and not in favour of the defendant/vendor. Of course it is true that the discretion of the court shall not be exercised in favour of the vendor under the agreement on the ground that the value of the land had increased manifold, when more than 95% of the sale consideration had been paid. But the inrodinate delay show the virtual inaction on the part of the purchaser under the agreement for sale. It would even go to show that the plaintiffs were content with the agreement and were bent upon enjoying the property without going for a regular sale and thereby avoid payment of revenue to the government in the form of stamp duty and registration charges. The said aspects also should be taken into account to arrive at a conclusion whether the purchaser under the agreement was ready and willing to complete the transaction. If the facts of the case are approached in such an angle, then necessarily this court has to come to the conclusion that the plaintiffs failed to prove their readiness and willingness. The finding of the trial court regarding the readiness and willingness on the part of the plaitniffs cannot be said to be defective or infirm, much less perverse. Even otherwise, since the agreement itself has not been proved to be genuine the readiness and willingness on the part of the plaintiff shall not be enough to grant the relief of specific performance. Hence the third substantial question of law is answered accordingly.
24. Though the finding regarding first substantial question of law alone is in favour of the appellants/plaintiffs, in view of hte answers provided to substantial questions of law 2 to 5, the appeal is bound to fail with the result that the appeal shall be dismissed with cost, confirming the decree of the trial court dismissing the suit filed by the appellants, namely O.S.No.10 of 2009, which stand confirmed by decree of the lower appellate court.
In the result, the second appeal is dismissed with cost, confirming the decree of the trial court dismissing the suit filed by the appellants, namely O.S.No.10 of 2009, which stood confirmed by the decree of the lower appellate court. Consequently, the connected miscellaneous petitions are closed.
To The Additional District & Sessions Judge (Fast Track Court), Ramanathapuram..