Madras High Court
Ka.Kistama Naidu vs Pushpa on 21 February, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.2.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.135 of 2007 1.Ka.Kistama Naidu 2.Mangammal 3.Lalitha 4.Mohan 5.Bhaskar ... Appellants vs. 1.Pushpa 2.Rajeswari 3.M.Govindan .... Respondents This second appeal is filed against the judgement and decree dated 21.8.2003 passed by the Subordinate Judge, Tiruvallur, in A.S.No.21 of 2002 confirming the judgement and decree of dismissal dated 18.12.2001 passed by the District Munsif, Tiruvallur, in O.S.No.217 of 1996. For Appellant : Mr.M.R.Khapali For Respondents : Mr.M.Venkatachalapathy,Sr.counsel for Mr.Sriram for R3 JUDGMENT
This second appeal is focussed by the plaintiffs, inveighing the judgement and decree dated 21.8.2003 passed by the Subordinate Judge, Tiruvallur, in A.S.No.21 of 2002 confirming the judgement and decree of dismissal dated 18.12.2001 passed by the District Munsif, Tiruvallur, in O.S.No.217 of 1996, which was filed for specific performance of an agreement to sell.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:
The appellants herein, as plaintiffs, filed the suit seeking the following relief:
"to pass judgement and decree for specific performance of contract directing the defendants 1 to 4 to execute the registered sale deed in respect of the suit properties the plaintiff bearing the registration expenses, failing which the plaintiffs pray that the sale deed may be executed by the Court and for possession of suit items 1 to 3 and for costs."
(extracted as such)
(b) Written statement was filed by D4. D1 to D3 were ex-parte. Whereupon, the trial Court framed the issues.
(c) On the side of the plaintiffs, the second plaintiff examined himself as P.W.1 along with P.W.2 and P.W.3 and marked Exs.A1 to A10. On the defendants' side, the 4th defendant examined himself as D.W.1 along with D.W.2 to D.W.4 and marked Exs.B1 to B7.
(d) Ultimately, the trial Court dismissed the suit, as against which the appeal was filed for nothing but to be dismissed by the first appellate Court, confirming the judgement and decree of the trial Court.
4. Challenging and impugning the judgements and decrees of the Courts below, this second appeal has been filed on various grounds, inter alia, thus:
(i) Despite the plaintiffs having taken steps to summon D1 to D3, who happened to be the original owners of the suit properties and who remained deliberately ex-parte, the Courts below failed to summon them and elicit out the truth from those witnesses.
(ii) Without appreciating the fact that shortly after the service of notice by the plaintiffs on the land owners as well as the father of D4, the sale deed in favour of D4 emerged, at the instance of D1 to D3, purely for the purpose of thwarting the interest of the plaintiffs.
5. Accordingly the following substantial questions of laws are found suggested in the memorandum of grounds of second appeal.
"1) Whether the Courts below were justified in holding that the failure to mention the date of agreement in Ex.B7 as mistake when not stated by D.W.1 or D.W.4 the scribe.
2) Whether the Courts below were justified in placing the burden of proof collusion as between the defendants on the plaintiffs/appellants under the circumstances of the case?
3) Whether the Courts below were justified in holding that the 4th defendant was a bona fide purchaser insite of the receipt of Ex.A4 by the father? The Kartha.
4) Whether the Courts below were justified in upholding Ex.B1?
5) Whether the Courts below were justified in not drawing any inference against the 4th defendant for the non-examination of any of the alleged vendors?
6) Whether the Courts were justified in holding that the possession of the defendant was in pursuance of Ex.B1?
7. Whether the Courts below were justified in placing any burden on the plaintiff a duty to enquire about the title of the defendants 1 to 3?"
(extracted as such)
6. Based on the available materials and after hearing partly both sides, this Court framed the following substantial questions of law:
"i) Whether both the Courts below were justified in holding that Ex.B1 is not an ante-dated document despite the missing of date of Ex.B1 in Ex.B7 and also in view of the oral and documentary evidence put forth on the side of the plaintiff?
ii) Whether the non-examination of either of defendants 1 to 3, despite steps having been taken by the plaintiff to get them examined as Court witnesses before the Court, is fatal to the findings and the rendering of judgement by the first appellate Court?
iii) Whether both the Courts below were justified in holding that D4 is a bona fide purchaser for value without notice of the sale agreement Ex.A1, even though D4's father received the plaintiff's notice Ex.A2 anterior to the emergence of the Sale Deed Ex.B7 and that when D4 and D1 to D3 are close relatives?
iv) Whether there is any perversity or illegality in the findings rendered by both the Courts below?"
(extracted as such)
7. In respect of the above substantial questions of law, both sides advanced their arguments.
8. Substantial questions of law (i) to (iv): All these substantial questions of law are taken together for discussion, as they are interwoven and interlinked, interconnected and entwined with one another.
9. The gist and kernel of the arguments as put forth and set forth on the side of the plaintiffs would run thus:
(i) The plaintiffs happened to be the neighbouring land owners of the suit properties and in fact, the land owners of the suit properties, namely, D1 to D3 and the plaintiffs entered into the sale agreement Ex.A.1 and as per which, the total sale consideration agreed was Rs.27,000/- and out of that on the date of Ex.A1, a sum of Rs.5000/- was paid as advance by the plaintiffs to the defendants.
(ii) Time for performance was fixed at nine months and it so happened that even after three months of the said agreement to sell, the plaintiffs were ready and willing to perform their part of the contract, as they had sufficient funds after the harvest. When they approached D1 to D3, they prayed for time to execute the sale deed. However, subsequently, the plaintiffs came to know that the defendants 1 to 3 wanted to sell the suit property in favour of D4's father, so as to thwart and nullify the interest of the plaintiffs under Ex.A1. Whereupon, the plaintiffs issued the notice-Ex.A2 dated 16.5.1985, which was received by D4's father as well as by D1-Achammal. Shortly thereafter, so to say, within a period of five days, the sale deed-Ex.B7 dated 23.5.1985 emerged at the instance of Defendants 1 to 3 in favour of D4, purely for the purpose of nullifying the interest of the plaintiffs.
(iii) D4 unjustifiably, for the purpose of shutting out the truth from the Court, resisted the application filed by the plaintiffs to get summoned D1 to D3 so as to establish the truth before the Court and the trial Court also erroneously dismissed the application giving a finding as though the very fact that D1 to D3 remained ex-parte would enure to the benefit of the plaintiffs.
(iv) Simply because Civil Revision Petition was not filed, as against such order, the plaintiffs were not precluded from raising it as a grievance before the second appellate Court.
(v) Adverse inference has to be drawn against D4 for having resisted that application for getting D1 to D3 summoned and examined before the Court.
(vi) In the sale deed-Ex.B7, there is a reference to an alleged agreement to sell, without specifying the date obviously because as on the date of the emergence of the said sale deed, the defendants themselves were not sure about the fact as to what date they had to specify in the agreement to be fabricated, so as to thwart the right of the plaintiffs. Hence, the date of agreement is missing in Ex.B7, even though month and year of the agreement were found specified therein.
(vii) Adding fuel to the fire, the subsequent fabrication of the agreement to sell-E.B1 dated 10.9.1984 was written on a stamp paper, which was purchased not from the stamp vendor, who is having office in the same vicinity, but from a different place and even thereon the initial of D4 differs. As such, it is clear that Ex.B1-the agreement to sell dated 10.9.1984 was fabricated by the defendants purely for the purpose of showing as though two days anterior to the suit agreement-Ex.A1 dated 12.9.1984 in favour of the plaintiffs, the said agreement Ex.B1 dated 10.9.1984 emerged.
(viii) The Courts below failed to take into consideration all these salient features and simply dismissed the suit as though D4 is a bona fide purchaser based on an earlier agreement, warranting interference in second appeal.
9. Piloting the arguments on the side of R3/D4 and in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiffs, the learned senior counsel for R3/defendant No.4 would advance his arguments, the gist and kernel of them would run thus:
(a) The non-filing of the Civil Revision Petition as against the order dated 18.12.2001 passed by the trial Court in rejecting the prayer of the plaintiffs to get D1 to D3 examined before the lower Court would lead to conclusion that the said order achieved finality and in such a case, once again they cannot rack up that issue.
(b) D4's personality is different from D4's father's personality. Simply because the plaintiffs claim that the pre-suit notice Ex.A2 was issued to D4's father, that would not impute knowledge on the part of the D4.
(c) D4 is having separate status of his own and in such a case, he cannot be mulcted with knowledge, to his detriment as though he, despite knowing the agreement Ex.A1 in favour of the plaintiffs executed by D1 to D3, purchased the property as per the sale deed-Ex.B7.
(d) Trite the law, is that as against concurrent findings of fact by the lower courts, the High Court would be reluctant to interfere, by invoking Section 100 of C.P.C. Here both the Courts below discussed thread bare the pros and cons of the matter and arrived at a reasoned conclusion, warranting no interference in second appeal.
(e) The plaintiffs failed to prove and establish that they were always ready and willing to perform their part of the contract ever since they entered into Ex.A1, the agreement to sell with D1 to D3.
Accordingly, the learned Senior counsel for R3/D4 prays for dismissing the second appeal.
10. At the outset itself, I fumigate my mind with the following decisions of the Honourable Apex Court.
(i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus:
"19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements.
.............
22. In Hero Vinoth v. Seshammal, this Court has observed that : (SCC p.556, para 24) "(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
(ii) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL;
(iii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iv) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYA:
11. A perusal of those precedents would exemplify and demonstrate that unless there is any perversity or illegality in the findings of the Courts below, in second appeal, the High Court while exercising jurisdiction under Section 100 of C.P.C.will not interfere.
12. The first appellate Court is the last Court of facts. Hence, it is just and necessary to see as to whether there is any perversity or illegality in the findings of fact on the part of both the Courts below.
13. I recollect the maxim-'The best evidence should be placed before the Court'.
14. In this case, I would like to point out that indubitably and indisputably, unarguably and unassailably the plaintiffs filed the application before the trial Court at the appropriate time to get D1 to D3-the land owners examined before the Court, so that, the truth could be elicited out and that too, in view of the fact that D1 to D3 remained ex-parte.
15. The nature of the controversy is such that the plaintiffs and D4 have been litigating mainly because of the conduct of D1 to D3. The Courts below, convincingly and correctly, appropriately and appositely held that the agreement-Ex.A1 was executed by D1 to D3-the land owners in favour of the plaintiffs and when such is the case, while the Courts giving a finding that the sale in favour of D4 was also valid, should have taken steps to summon those D1 to D3 as Court witnesses, so as to enable both parties to cross-examine and elicit out the truth. But in this case, I am of the considered view that D4 should not have resisted that application, because, had D1 to D3 been examined before the trial Court then the truth would have been elicited out and both the Courts below could have based their judgements on strong grounds.
16. The non-filing of the C.R.P., in my considered opinion is not at all fatal to the grievance expressed by the plaintiffs herein, because law does not contemplate that as against interlocutory orders then and there C.R.P. should be filed and in fact law discourages such filing of C.R.Ps.
17. While filing appeal, the grievance of the appellant relating to the orders passed in the interlocutory application could rightly be added and the appellate Court can rightly consider the same. Here my finding is that D1 to D3 must have exclusive and special knowledge concerning the real controversy involved in this case and also under what circumstances they executed Ex.A1-the agreement to sell in favour of the plaintiffs and subsequently executed the sale deed Ex.B7 in favour of D4.
18. On the one hand, D4 would state that Ex.A1 is anterior in point of time and Ex.B1 is an ante-dated one, fabricated and concocted to defeat the rights of the plaintiffs under Ex.A1. Whereas, the plaintiffs would gainsay and deny the same. In such a case, only by cross-examining D1 to D3-the land owners, who are the protagonists of the documents Exs.A1, B1 and B7, the truth could be elicited out. Cross-examination is a legal weapon, by which, truth can be elicited out from a witness. But that opportunity was not given to the plaintiffs.
19. The learned counsel for the plaintiffs would go to the extent of arguing that from the available evidence before this court, in the second appeal, the matter could be decided in favour of the plaintiffs and the original suit can be decreed, forgetting for a moment that despite best evidence could be brought on record and that the same was not made available, nonetheless both the lower courts decided the lis.
20. In the second appeal, as against the concurrent findings, based on tenuous, weak, meek, bleak and patchy evidence the High Court would not be justified in simply altering such mistake committed by the lower Courts and reversing the findings of fact by both the Courts below and decreeing the original suit and as such, I am of the considered view that with the available evidence, the High Court would not be justified in simply decreeing the original suit reversing the findings of the lower Courts.
21. The learned counsel for the plaintiffs would contend that the notice served on D4's father would impute knowledge on D4 and that would also prove that there was collusion among D4's father D4 and D1 to D3. All these facts cannot simply be presumed or assumed. No doubt, the learned counsel for the plaintiffs has succeeded in creating doubts in the mind of the Court that there are some suspicious circumstances which have to be explained by D1 to D3. Within seven days after the issuance of notice Ex.A2 by the plaintiffs to D4's father as well as to D1, the sale deed-Ex.B7 emerged. This also is a suspicious circumstance, which should necessarily be explained and the Court should get itself satisfied thoroughly on these aspects before holding that D4 is a bona fide purchaser for value without having knowledge about the subsequent agreement.
22. This is a peculiar case, in which, it is not the contention of D4 that he is a mere subsequent purchaser based on subsequent agreement or even without any subsequent agreement to sell. But the specific case of D4 is that even before the emergence of Ex.A1 dated 12.9.1984, Ex.B1- the agreement to sell dated 10.9.1984 emerged, so to say, two days anterior to Ex.A1. If that be so, then once again the crucial question arises as to what prompted D1 to D3 to enter into the agreement to sell Ex.A1 with the plaintiffs on 12.09.1984, hardly a day after Ex.B1. If what D4 says is cenpercent true, then there should be sufficient reason to explain and expound as to how a day after such Ex.B1, D1 to D4 were prompted to enter into such agreement Ex.A1 with the plaintiffs.
23. Adding fuel to the fire, there is other circumstance also which the defendants are bound to explain. D4 is admittedly a close relative of D1 to D3. After D1 to D3 entering into such agreement- Ex.B1 with D4, what might have prompted D1 to D3 in entering into such agreement-Ex.A1 with the plaintiffs. As such, I need not, at this point of time, proceed further to discuss on the merits of the case.
24. On the side of the plaintiffs, the following decisions are cited:
1. (2002) 5 SCC 481 (Nirmala Anand vs Advent Corporation (P) Ltd. and others, an excerpt from it would run thus:
"38. It is well settled that in cases of contract for sale of immovable property the grant of relief of specific performance is a rule and its refusal an exception based on valid and cogent grounds. Further, the defendant cannot take advantage of his own wrong and then plead that decree for specific performance would be an unfair advantage to the plaintiff."
2. (2009) 2 SCC 177 (U.R. Virupakshappa vs Sarvamangala and another)
3. 2010 (1) CTC 295 (Govindasamy Pandaram vs Ramasamy Asari and four others
25. The learned Senior counsel for the respondent No.3/D4 would cite the following decisions.
1. 2008 (1) CTC 86 (Sita Ram and others vs Radhey Shyam)
2. 1999 (III) CTC 340 (Kondiba Dagadu Kadam vs Savitribai Sopan Gujat)
3. 2008-1-Law Weekly 1039 (M.C. Manickam Chettiar vs Indrani Karmegam and four others)
4. (2008) 4 MLJ 878 (M.C. Manickam Chettiar vs Indrani Karmegam and four others)
5. 2008 (3) CTC 1 (P. Retnaswamy vs A. Raja and another)
6. AIR 2005 Madhya Pradesh 118 Prakashchandra vs Mahalaxmiben and others
7. 2008 (4) CTC 385 S. Vijayakrishnan vs Jayaprakash and 7 others
8. 2007 (1) CTC 449 (Jayalakshmi Ammal and 8 others vs Chinnasamy Gounder) Absolutely there is no quarrel over with the proposition as found enunciated in the aforesaid decisions. However, my discussion supra would show that here both the Courts below decided the lis without bringing before them the best evidence.
26. My discussion supra would display and demonstrate that necessarily the matter has to be remanded to the first appellate Court with the direction that the first appellate Court should summon D2 and D3 at the cost of the plaintiffs, as D1 is reported dead, to appear before the Court and depose on the facts relating to this case and both sides should be given an opportunity to cross-examine those witnesses. If for any reason, the Court feels that D2 and D3 might not be in a position to physically appear before the Court, then even at the cost of the plaintiffs, an Advocate Commissioner should be appointed for such examination of those witnesses. Hence, in these circumstances, I am of the view that the matter has to be remanded back to the first appellate Court after setting aside the judgement and decree of the first appellate court.
27. In view of the ratiocination adhered to above, the substantial question of law (1) and (3) are answered to the effect that the said substantial questions of law could not be decided finally unless additional evidence is recorded as contemplated supra.
Substantial questions of law (2) and (4) are answered to the effect that the lower Courts were not justified in simply deciding the lis without examining D2 and D3, as envisages supra.
28. Accordingly, the aforesaid points are decided and the judgement and decree of the first appellate court are set aside and the matter is remanded to the first appellate Court for the purpose of summoning D2 and D3, as D1 is reported dead, to appear before the Court and depose on the facts relating to this case. Both sides should be given an opportunity to cross-examine the witnesses. If for any reason, the Court feels that D2 and D3 might not be in a position to physically appear before the Court, at the cost of the plaintiffs, an Advocate Commissioner could be appointed for such aforesaid examination. The parties are also at liberty to adduce additional evidence. The parties shall appear before the first appellate Court on 7.3.2011.
29. The second appeal is disposed of accordingly. However, there is no order as to costs.
Msk Registry shall send back the records to the Subordinate Judge, Tiruvallur.
To
1. The Subordinate Judge, Tiruvallur
2. The District Munsif, Tiruvallur