Madras High Court
Mrs.Gowri (Died) vs T.Lakshmiammal on 28 March, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28 .03.2014
CORAM :
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
A.S.Nos.312 of 1994 and 985 of 1997
and
CMP Nos.1793 and 1794 of 2008
1.Mrs.Gowri (Died)
2.M.K.Krishnan : Appellants/Plaintiffs
3.Rajesh
4.Suresh
[Appellants 3 and 4 brought on
record as Lrs of the deceased
1st appellant as per order of
this court, dated 08.01.2003
made in CMP No.18925/2002]
Vs.
1.T.Lakshmiammal
2.T.Ramanathan
3.T.Ramakrishnan
4.T.Ramanarayanan(died)
5.T.Ramamoorthy
6.Malarkodi
7.Sriram
8.Minor Saradha Devi
[R8 represented by mother &
Guardian Malarkodi]
[RR6 to RR8 brought on record as
LRs of the deceased R4 vide order
of this court, dated 14.10.2008
made in CMP No.1553 to 1555//08
R6 appointed as Guardian] : Respondents/Defendants
Appeal Suits filed under Section 96 of CPC against the Judgment and decree, dated 27.01.1994 passed in Original Suit Nos.1595 of 1987 and 248 of 1992 by the Sub Court, Coimbatore.
For Appellants : Mr.T.M.Hariharan
For Respondents : Mr.M.S.Krishnan
Senior Counsel
for M/s.Sarvabhvaman Associates
COMMON JUDGMENT
The plaintiffs in both the suits in O.S.No. 1595 of 1987 and 248 of 1992 on the file of the I Assistant Subordinate Judge, Coimbatore, are the appellants.
2.O.S.No.1595 of 1987 was filed for specific performance of Agreement of Sale, dated 27.03.1979 and for injunction and O.S.No.248 of 1992 was filed for injunction. Both the suits were dismissed and aggrieved by the same, the plaintiffs filed the above appeal suits.
3.The case of the plaintiffs in both the suits are as follows:-
The 1st plaintiff is the wife and the 2nd plaintiff is the husband. The suit property originally belonged to G.Thirumalaisamy Nadar and the 1st defendant is his widow and the defendants 2 to 5 are his sons. The said G.Thirumalaisamy Nadar let out the suit property and a larger extent to Beema Rao and R.Sadayappa Thevar and latter, R.Sadayappa Thevar became the sole lessee of the entire property and the 2nd plaintiff and 11 others were allowed to occupy various portions as a sub-tenant under R.Sadayappa Thevar and in the suit property, the 2nd plaintiff was running an Automobile workshop under the name and style of 'NEW SUPER AUTO CARAGE' by constructing a superstructure thereon. Latter misunderstanding arose between Thirumalaisamy Nadar and R.Sadayappa Thevar and Thirumalaisamy Nadar filed O.S. No.1644 of 1969 for recovery of possession of the suit property and a larger extent from R.Sadayappa Thevar and in that suit, R.Sadayappa Thevar filed petition under section 9 of the Tamil Nadu City Tenants Protection Act and offered to purchase the suit property, which was let out to him. During the pendency of the suit, G.Thirumalaisamy Nadar offered to sell the suit property in the possession of the 2nd plaintiff to the 1st plaintiff for a consideration of Rs.36,300/- and both of them, entered into an Agreement of Sale on 27.03.1979, by which the suit property was agreed to be sold to the first plaintiff for a consideration of Rs.36,300/- and an advance of Rs.15,000/- was paid and the same was also incorporated in the Agreement of Sale. As per the said Agreement, the first plaintiff has to pay additional sum of Rs.5,000/- within a period of one month and that was also paid and even in the Agreement of Sale, it has been specifically stated that the sale shall be completed within two months from the date on which Thirumalaisamy Nadar got recovery of possession in the suit filed by him in O.S.No.1644 of 1969 against Sadayappa Thevar. Thereafter, Thirumalaisamy Nadar died and the defendants 2 to 5 attempted to interfere with the possession and enjoyment of the plaintiffs, as the first plaintiff was put in possession of the suit property as part performance of Agreement of Sale and the defendants were also not evincing any interest in selling the suit property and attempted to interfere with the possession and enjoyment of plaintiffs. Hence, the plaintiffs filed O.S.No.248 of 1992 on the file of the District Munsif Court, Coimbatore for bare injunction and in that suit, the defendants questioned the Agreement of Sale, dated 27.03.1979 and therefore, the plaintiffs filed O.S.No.2047 of 1987 for specific performance and for injunction.
4.It is stated that the plaintiffs are ready and willing to perform his part of contract and even though, under the Agreement of Sale, the sale has to be completed within two months from the date of getting recovery of possession and as the defendants questioned the Agreement of Sale and denied the execution of Agreement of Sale, the suit was filed for specific performance.
5.The second defendant filed a written statement and the same was adopted by the respondents 1 and 3 to 5 and it is averred as follows :-
Thirumalaisamy Nadar died on 22.01.1985 and the suit property was not his separate property, the defendants 2 to 5 are having equal share in the suit property along with their father. They also stated that under the Lease Agreement, dated 01.07.1957, the suit property and the larger extent, totally measuring east-west 60 feet and north-south 160 feet vacant site was let out to Beema Rao and Sadayappan Thevar and latter, Beema Rao surrendered the let out portion to Sadayappa Thevar and Sadayappa Thevar was in possession and enjoyment of the extent and put up a superstructure in the property, that was let out to him and Sadayappa Thevar, sub-let a portion of the suit property to the 2nd plaintiff and O.S.No.1644 of 1969 was filed by the said Thirumalaisamy Nadar on the file of the Ist Additional District Munsif, Coimbatore against Sadayappa Thevar for recovery of possession and in that suit, Sadayappa Thevar filed I.A.No.2008 of 1987 under section 9 of the Tamil Nadu City Tenants Protection Act, in respect of the demised property.
6.It is further stated that the property involved in O.S.No.1644 of 1969 and the property described in the plaint schedule are entirely different and the allegations made in the plaint are denied. They also denied the allegations that Thirumalaisamy Nadar entered into an Agreement of Sale with the plaintiffs for the sale of the site, measuring 42 feet north-south and 63 feet east-west situated on the north-western side of the properties involved in O.S.No.1644 of 1969 and the said Agreement was attested by the 3rd defendant and Thirumalaisamy Nadar received Rs.20,000/- towards total sale consideration and pursuant to the Agreement, the plaintiffs put up a workshop shed in the said site. The alleged Agreement pleaded by the plaintiffs is a rank forgery and Thirumalaisamy Nadar never executed any such document and the market value of the property is not less than Rs.1,00,000/- per cent and therefore, Thirumalaisamy Nadar could not have entered into an Agreement of Sale, before the sale of the suit property.
7.It is further stated that after filing of the suit O.S.No.1644 of 1969 under the guise of the present suit, the plaintiffs have attempted to encroach upon the properties of the defendants and the plaintiffs are not entitled to the relief of specific performance, as they have not come with clean hands. They also took a specific plea that the suit is barred under Order 2 Rule 2 CPC and therefore, the suit is liable to the dismissed.
8.The additional written statement was filed by the 3rd defendant and the same was adopted by the defendants 1, 2, 4 to 5 stating that the Agreement of Sale is a forged and fabricated one and it must have been fabricated in collusion with Sadayappa Nadar and the plaintiffs have no means to pay the balance sale consideration and the alleged payment of advance of Rs.15,000/- and subsequent payment of Rs.5.,000/- are all false and no agreement was executed and no receipt was executed for Rs.5,000/-.
9.The plaintiffs filed a reply statement denying the allegation that they have no means to pay the balance sale consideration and also the allegation that the plaintiffs were in possession of the suit property, pursuant to the Agreement of Sale. They further stated that all the defendants were present, when agreement was entered into and they were fully aware of the execution of the agreement and the payments made by the plaintiffs and due to passage of time, the correct name of the defendants 2 and 3 were not stated properly in the plaint and the second plaintiff attested the Agreement of Sale and the 3rd defendant attested the receipt and the mistake committed in the plaint was only due to loss of memory. As the defendants 2 and 3 were aware of the Agreement of Sale and also signed in the Agreement of Sale and in the receipt ,they are estopped from challenging the same. The price quoted by the defendants was imaginary and the property was not worth for Rs.2,00,000/- on the date of Agreement of Sale and Thirumalaisamy Nadar himself conveyed the adjacent property for less than the value, recited in the Agreement in the year 1979. It is also stated that the agreement is a genuine one and every correction is countersigned by Thirumalaisamy Nadar, the vendor and there was no interpolation as alleged by the defendants. When the plaintiffs have sufficient means to pay the balance sale consideration and more than 50% of the sale consideration was paid, the plaintiffs are entitled to the relief of specific performance.
9.On the basis of the pleadings, the following issues were framed in O.S.No.1595 of 1987:-
(1)Whether the suit is premature?
(2)Whether the suit is barred under Order 2 Rule 2 CPC?
(3).Whether the plaintiffs are entitled to the relief of specific performance or in alternative of return of advance amount?
(4)To what reliefs?
In O.S.No.248 of 1992:
(1).Whether the plaintiffs are entitled to the relief of injunction?
(2).To what reliefs, the plaintiffs are entitled to?
10.On the side of the plaintiffs, the 2nd plaintiff was examined as PW1 and on the side of the defendants, the second defendant examined himself as DW1 and also examined one Murali as DW2 and on the side of the plaintiffs, 26 documents were marked and on the side of the defendants, 12 documents were marked and the Commissioner's report, plan and photos were marked as Exs.C1 to C3 in respect of the suit property.
11.The trial court tried the issue No.2 in O.S.No.1595 of 1987 and held that at the time of filling of the suit O.S.No.2047 of 1987, which was latter transferred and renumbered as O.S.No.248 of 1992, the cause of action relating to specific performance was not available to the plaintiffs and the time provided for performance of contract as per Agreement of Sale was not arrived at and therefore, there was no need for the plaintiffs to pray for specific performance and as their possession was disturbed by the defendants, they filed a suit for injunction and in that suit, the defendants took the plea that Agreement of Sale was not genuine one and therefore, the cause of action arose for the plaintiffs to file the suit O.S.NO.1595 of 1987 and therefore, O.S.No.1595 of 1987 is not barred under Order 2 Rule 2 CPC.
12.Issue Nos.1,3 in O.S.No.1595 of 1987 and O.S.No.248 of 1992 were tried together and the trial court held that the Agreement of Sale, Ex.A1 is not a genuine agreement and the plaintiffs failed to prove that the Agreement of Sale was executed by Sadayappa Thevar and stated the following reasons for arriving at such conclusion:-
(1)Though the signature of Thirumalaisamy Nadar in Ex.A1 and the admitted signature of Thirumalasamy Nadar found in Exs.A13 and A21 appears to be similar, there are certain similarity and dissimilarity between those signatures and there is difference in the signature of Thirumalaisamy Nadar in Exs.A1 and A2 and Ex.A1 cannot be accepted in the absence of examination of any other witnesses and except PW1, no attempt was made to examine the Scribe and therefore, the Agreement of Sale cannot be believed , (2)Even according to the plaintiffs, the 2nd plaintiff was a sub-tenant under Sadayappa Thevar and he was in possession and enjoyment of the property and that was falsified by the recitals in Ex.A1, wherein it is stated that the suit property is in possession of the first plaintiff and the first plaintiff is entitled to use the property for herself or for her husband's business and Thirumalaisamy Nadar has no objection for the same. In the Agreement of Sale, it is further stated that the first plaintiff was in possession of the property, whereas in the plaint, it is stated that the 2nd plaintiff was in possession of the property and it is also admitted in the plaint that the plaintiffs are in possession of the property in part performance and therefore, that would lead to conclusion that possession was handed over only under the document and that is contra to the stand taken by the plaintiffs.
(3)Considering the commissioner's report and plan and the evidence of PW1 and Ex.A1, the objection raised by the defendants that the suit property and the property mentioned in the Agreement of Sale are not identical can be accepted.
13.The trial court further held that it is the case of the plaintiffs that the 2nd plaintiff was put in possession as sub-tenant in the year 1975 by Sadayappa Thevar and since then, he continued to be in possession of the property and even according PW1, he was in possession of some other property, which was the subject matter in O.S.Nos.510 and 544 of 1977 and after handing over the possession of that property, he got possession of the suit property and admittedly, he handed over the possession only in 1979 and till then, he was prosecuting the said two cases and therefore, he could not be in possession of the suit property and could not be put in possession in the year 1979 as per Ex.A1.
14.The trial court further held that the plaintiffs failed to prove that they have put up superstructure by adducing convincing evidence and there are disputes regarding persons, who signed as witnesses in Exs.A1 and A2 and there are interpolations in Ex.A1 and no proper explanation has been given by the plaintiffs and the plaintiffs failed to prove the payment of Rs.15,,000/- as per Ex.A2 and on those basis, court held that the execution of the agreement of sale by Thirumalaisamy Nadar and the first plaintiff was not proved.
15.The trial court further held that even assuming that the Agreement of Sale is a genuine one, the plaintiffs are not entitled to the discretionary relief of specific performance and the plaintiffs are not in possession of the suit property and they are not entitled to the relief of injunction. The trial court also answered Issue No.1 and 4 in O.S.No.1595 of 1987 and Issue No.2 in O.s.No.248 of 1992 holding that as per Agreement of Sale, the right to enforce the specific performance of contract arose only after getting decree in O.S.No.1644 of 1969 and on the date of fling of the Suit O.S.No.1644 of 1969 and section 9 applications were pending and therefore, the plaintiffs were not entitled to seek specific performance of contract on the date of filing and the suit was also premature. In the result, the suits were dismissed. Aggrieved by the same, these appeal suits were filed.
16.Mr.T.M.Hariharan, the learned counsel for the appellants submitted that the trial court without properly appreciating the evidence of PW1 and the plaint erred in holding that the Agreement of Sale Ex.A1 was not a genuine document and it must have been forged and the plaintiffs/appellants cannot claim any relief under the document.
17.The learned counsel further submitted that the possession of the second plaintiff was admitted by the respondents/defendants and only denied the Agreement of Sale Ex.A1 and the trial court rightly held that the signature of Thirumalaisamy found in Ex.A1 is similar to the signature of Thirumalaisamy found in Exs.A13 to A21 and therefore, the trial court ought to have held that Ex.A1 was executed by Thirumalaisamy and the first plaintiff and erred in holding that there are some minor differences in the signature of the Thirumalaisamy Nadar found in Ex.A1 and in other documents viz., A2, A13 to A21 and therefore, Ex.A1 could not have been executed by Thirumalaisamy Nadar and the trial court having found that due to difference in period, namely 1969 and 1979, the difference in signature will not have much importance, ought to have held that Ex.A1 was a genuine one and the trial court erred in holding that Ex.A1cannot be accepted in the absence of corroborative evidence.
18.He further submitted that the first plaintiff and Thirumalaisamy Nadar were parties to Ex.A1 and it was attested by the 2nd defendant and another person and it is the specific case of the plaintiffs that the Scribe was brought by Thirumalaisamy Nadar. It is the further case of the appellants that Ex.A2 receipt was issued by Thirumalaisamy Nadar, for having received Rs.5,000/- as per Agreement of Sale Ex.A1 and the receipt was attested by the 3rd defendant. Though, the 2nd defendant was examined as DW1 and he denied the signature found in Ex.A1, no attempt was made by the defendants to examine the 3rd defendant to deny the signature in the receipt. The non-examination of the 3rd defendant to disprove the signature found in Ex.A1 would only lead to the conclusion that Exs.A1 andA2 are genuine documents and Ex.A2 receipt was issued, pursuant to the recitals in Ex.A1 and therefore, the trial court ought not to have held that Exs.A1 and A2 are genuine documents and ought to have granted the relief of specific performance .
19.He also submitted that the trial court erred in holding that there are interpolations and corrections in Ex.A1 and that would also create suspicion about the genuinity of Ex.A1. He further submitted that all the corrections are duly endorsed in the documents itself and therefore, it cannot be stated that by reason of the corrections and interpolation in Ex.A1 cannot be accepted. The trial court also erroneously held that the 2nd plaintiff would not have come into possession of the suit property in 1975 as alleged by him, inasmuch as he filed the suit O.S.No.510 of 1977 and against him another suit in O.s.No.544 of 1977 was filed in respect of other properties, where he was in possession and according to him, after handing over the possession of that property, he came into possession of the suit property and as per proceedings in O.S.No.510 and 544 of 1977 he was in possession of the other properties till 1979 and therefore, he would not have come into possession of the suit propriety in 1975.
20.The learned counsel further submitted that it is not the case of the plaintiffs that after vacating the suit property, 2nd plaintiff came into possession of the suit property and it is the specific case of the 2nd plaintiff that in the year 1975, he became a sub-tenant under Sadapayya Thevar and that was also accepted by the defendants and therefore, the trial ought not to have given much importance to the proceedings in O.S.Nos.510 and 544 of 1977. He, therefore, submitted that considering the fact that Ex.A1 was proved by examining PW1 and the failure on the apart of the defendants, in not examining 3rd defendant to disprove the signature found in Ex.A2 and the fact that the appellants were in possession of the property, which was also admitted by the defendants in Ex.A9, the trial court ought to have held that the documents Exs.A1 and A2 are genuine documents and the appellants are entitled to the relief of specific performance.
21.He further submitted that the appellants also proved their readiness and willingness to complete the sale transaction and marked the savings bank account pass book as Exs.A3 and A4 to prove that they had means to pay the balance sale consideration. He also submitted that the trial court having rightly held that the suit in O.S.No.1595 of 1987 was not barred under Order 2 Rule 2 CPC, ought to have decreed the suit as prayed for. He further submitted that it cannot be contended that O.S.No.1595 of 1987 was barred under Order 2 Rule 2 CPC and inasmuch as at the time of filing of the suit O.S.No.248 of 1992, the cause of action for filing the suit for specific performance did not arise and the possession of the plaintiffs was disturbed and interfered with by the defendants and that was the cause of action for filing the suit O.S.No.248 of 1992 and as per the Agreement of Sale Ex.A1, the right to sue accrues only after Thirumalaisamy Nadar obtained recovery of possession in O.S.No.1644 of 1969 and admittedly, O.S.No.1644 of 1969 was decreed only on 26.11.1992 as per Ex.A9 and therefore, in the year 1987, no cause of action arose for the relief of specific performance and therefore, the O.S.No.1595 of 1987 was not barred under Order 2 Rule 2 CPC.
22.He relief upon the following judgments:-
(1)(1964)7 SCR 831: AIR 1964 SC 1810 in the case of Gurbux Singh vs. Bhooralal.
(2)(2004)3 SCC 277 in the case of Kunjan Nair Sivaraman Nair vs. Narayanan Nair and others, in support of contention that the suit is not barred under Order 2 Rule CPC.
23.He also relied upon the judgment reported in (2002)8 SCC 146 in the case of Nirmala Anand vs. Advent Corporation (P) Ltd and others. in support of his contention that increase in price or escalation of price cannot be a consideration to deny the relief of specific performance and also relied upon the following judgments:-
1.(2007)10 SCC 231, in the case of P.S.Ranakrishna Reddy vs. M.K.Bhagyalakshmi and another.
2.(2008)11 SCC in the case of Silvey and others vs. Arun Varghese and another.
3.Vol.89 LW 419 in the case of Manickathammal vs. Nallasami Pillai,i in support of his contention that in a suit for specific performance, the conduct of the defendants in taking a false plea also should be taken into account and in this case, the defendants have taken a false plea that the plaintiffs were not put in possession of the property, even though the plaintiffs' possession was admitted in Ex.A9 and therefore, ought to have granted the relief of specific performance.
24.On the other hand, Mr.M.S.Krishnan, the learned Senior counsel appearing for the respondents submitted that the suit is clearly barred under Order 2 Rule 2 CPC, having regard to the pleadings in O.S.No.248 of 1992. He further submitted that the plaintiffs filed O.S.No.2047 of 1987 on the file of the District Munsif Court, Coimbatore, against the defendants for injunction, which was latter transferred and renumbered as O.S.No248 of 1992 and in that suit in para 8, it is specifically averred that the the defendants in an obvious attempt to ignore their obligations under the agreement, wanted to enrich themselves unjustly and taking advantage of the Dasara Holidays, the defendants represented and led by the 5th defendant gathered a few hooligans and rowdy elements, and visited the suit property on 30.09.1987 and threatened to dispossess the plaintiffs from the suit property by force. Therefore, they made it clear that the defendants were not willing to act, according to the terms of the agreement and also threatened to dispossess the plaintiffs by force. Therefore, even on 30.09.1987, the plaintiffs were aware that the defendants were not going to execute the Sale Deed and therefore, the cause of action for filing the suit for specific performance was available to the plaintiffs, when they have filed O.S.No.2047 of 1987, latter renumbered as O.S.No.248 of 1992 and having omitted to obtain leave from the court, while filing the suit in O.S.No.2047 of 1987, the present suit in O.S.No.1595 of 1987 was clearly barred under Order 2 Rule 2 of CPC.
25.He also submitted that the plaintiffs were also aware that they were entitled to file a suit for specific performance on the date of filling O.S.No.2047 of 1987 and that was also made clear by the averments in para 8 of the plaint in OS.No.2047 of 1987, wherein the plaintiffs reserved the right to file the suit for specific performance to enforce the agreement, dated 25..03.1979 at the appropriate time. Therefore, he submitted that when the right to sue for the relief of specific performance was available, at the time filing of the earlier suit without praying for specific performance, the plaintiffs filed the suit for bare injunction without obtaining leave from the court, they are not entitled to file a separate suit for specific performance subsequently and therefore, the suit is clearly barred under Order 2 Rule 2 CPC, as held in (2013)1 SCC 625 in the case of Virgo Industries Eng. Private Limited vs. Venturetech Solutions Private Limited. He, therefore, submitted that the trial court erred in holding that O.S.No.1595 of 1987 was not barred under Order 2 Rule 2 CPC and the trial court ought to have dismissed the suit on that ground.
26.The learned Senior counsel further submitted that the trial court rightly held that the present suit for specific performance is not maintainable and the plaintiffs failed to prove the genuineness of Exs.A1 and A2. He further submitted that the plaintiffs cannot take advantage of the non-examination of the 3rd defendant, who alleged to have witnessed in Ex.A2, when the plaintiffs failed to prove Exs.A1 and A2. He further submitted that only after the plaintiffs discharged the burden of proving Exs.A1 and A2, the defendants have to give contra evidence and in this case, the plaintiffs failed to prove the execution of Exs.A1 and Ex.A2 and therefore, there is no necessity for the defendants to disprove the signature found in Exs.A1 and A2. He further submitted that the evidence of PW1 is not consistent regarding Exs.A1 and A2. Though PW1 would state that scribe was brought in by Thirumalaisamy Nadar and one of the witnesses is the 2nd defendant, nothing would have prevented, the plaintiffs from examining the other witnesses or summoning the scribe and no attempt was made by the plaintiffs, either summoning the scribe or examining the other witnesses and considering the same, the trial court held that Exs.A1 and A2 were not proved by the plaintiffs. He also submitted that though corrections and interpolations were endorsed in Ex.A1, considering the style of writing of the body of Ex.A1 and corrections in Ex.A1 that would prove that the corrections would have been made by some other persons, at a later point of time. He further submitted that the plaintiffs tampered with Ex.A1 with regard to consideration and extent and therefore, the plaintiffs are not entitled to the discretionary relief of specific performance. He also submitted that the trial court has rightly held that the plaintiffs could not be in possession in the year 1975 as alleged by them, having regard to the proceedings in O.S.No.510 and 544 of 1977.
27.It is admitted by PW1 that after he vacated the premises in which he was doing business, which was the subject matter of O.S.Nos.510 and 544 of 1977, he became a sub-tenant under Sadayappa Nadar. It is seen from Ex.A25, a memo filed in O.S.No.544 of 1977 that the suit was compromised on 18.02.1980 and a memo was filed to that effect on that date itself and on that basis, the suits were dismissed as settled out of court. He further submitted that C.M.ANos.131 and 132 of 1978 were disposed of on 06.10.1978 as per Exs.A23 and Ex.A24 and that would also prove that the 2nd plaintiff was contesting the case in respect of his possession in respect of other properties till 1978 and therefore, he would not have come into possession in the year 1975 and that was properly appreciated by the trial court. He further submitted that no particulars were given by the plaintiffs regarding the stand taken by them as a sub-tenant from Sadayappa Thevar and having regard to the recitals in Ex.A1, the case of the plaintiffs cannot be accepted. He further submitted that under Ex.A1, the possession of the 1st plaintiff was admitted and permission was granted to the first plaintiff to let out the property for doing business of her husband and therefore, that would imply that on the date of execution of Ex.A1, PW1 was not doing business in the suit property and the first plaintiff was in possession and therefore, the contention of the plaintiffs that they were doing business in the suit property, even prior to the execution of the sale deed, cannot be accepted. He also submitted that as per Ex.A1, possession was given in part performance of the agreement of sale and that was also admitted by the plaintiffs in that pleadings and when possession was given in part performance that would imply that earlier to that, the plaintiffs were not in possession and enjoyment of the property and these aspects were rightly considered by the courts below to deny the relief of specific performance.
28.The learned Senior counsel further submitted that circumstances would lead only to the conclusion that Ex.A1 would not have been executed as alleged by the plaintiffs. Admittedly, O.S.No.1644 of 1969 was pending at the time of execution of Ex.A1 and Sadayappa Thevar filed application under 9 of the Tamil Nadu Tenants Protection Act, for claiming ownership over the leasehold properties. According to the plaintiffs, the 2nd plaintiff was a sub-tenant under Sadayappa Thevar and as per recitals in Ex.A1, the plaintiffs were aware of the pendency of O.S.No.1644 of 1969 and the petition filed by the lessee Sadayappa Thevar claiming benefits under 9 of the Tamil Nadu Protection of Tenancy Act and therefore, in such circumstances, no prudent man would enter into the agreement of sale, when the right of Thirumalaisamy Nadar to execute a sale deed was in dispute, due to the pendency of the application filed by Sadayappa Thevar. The compromise between the legal-heirs of Sadayappa Thevar and the legal-heirs of Thirumalaisamy Nadar viz., the defendants came into being only in 1992 and in the year 1987, it was not certain, whether the Thirumalaisamy Nadar was in a position to execute the sale deed in respect of the property, which was in possession of Sadayappa Thevar. Therefore, the plaintiffs would not have entered into an agreement of sale, by paying substantial amount as consideration and considering all these aspects, the trial court has rightly held that agreement of sale would not have entered into.
29.He also relied upon the following judgments, in support of ins contention.
1.(2013)1 SCC 625, in the case of Virgo Industries (Eng) Private Limited vs. Venturetech Solutions Private Limited.
2.AIR 2003 SC 1989: (2003)9 SCC 606, in the caser of Banarsi and others vs. Ram Phal.
3.AIR 2011 SC 3234; (2011)12 SC 18, in the case of Mrs.Saradamani Kandappan vs. Mrs.S.Rajalakshmi and others.
30.On the basis of the submissions, the following points arise for consideration in both the appeal suits.
1.Whether the Agreement of Sale Ex.A1 and Ex.A2 the receipt are genuine as claimed by the plaintiffs?
2.Whether the plaintiffs were put in possession and enjoyment of the suit property, pursuant to the Agreement of Sale or the 2nd plaintiff was in possession of the suit property earlier to the Agreement of Sale?
3.Whether the plaintiffs are entitled to the discretionary relief of specific performance?
4.Whether the suit in O.S.No.1595 of 1987 was barred under Order 2 Rule 2 CPC?
31.Point No.4: Admittedly, O.S.No.2047 of 1987 was filed by the plaintiffs for bare injunction and it is stated in the plaint that an agreement, dated 27.03.1979 was entered into between Thirumalaisamy Nadar and the first plaintiff for conveying the suit property for a sum of Rs.36,300/- and an advance of Rs.15,000/- was paid and additional sum of Rs.5,000/- was also paid within a month and necessary receipt was also issued by Thirumalaisamy Nadar. The possession of the first plaintiff was also admitted in Ex.A1 Agreement of Sale. It is also alleged that the plaintiffs are always ready and willing to perform their part of contract and pay the balance sale consideration and got the sale deed in their names. It is further stated that as the suit in O.S.No.1644 of 1969 was pending, the sale could not be completed. It is also stated that the time stipulated for the performance of obligations under the Agreement of Sale has not arisen and two months period would commence from the date of final disposal of O.S.No.1644 of 1969.
32.It is further stated that the plaintiffs approached the 3rd defendant and enquired about the position of O.S.No.1644 of 1969 and the 3rd defendant informed the 2nd plaintiff, soon-after the disposal of the said case, they would execute the sale deed. Nevertheless, in para 8, it is stated that the defendants in an obvious attempt to ignore their obligations under the agreement wanted to enrich themselves unjustly and taking advantage of the Dasara Holidays, the defendants represented and led by the 5th defendant gathered a few hooligans and rowdy elements and threatened to dispossess the plaintiffs from the suit property by force on 30.09.1987. It is also stated in para 8 that the plaintiffs reserved the right to file a suit for specific performance to enforce the Agreement of Sale , dated 25..03.1979 at the appropriate time. Therefore, the plaintiffs are aware that the defendants have conducted in such a manner, that would give an indication that they were not inclined to act according to the terms of the Agreement of Sale and made it clear in para 8 that the defendants in an obvious attempt to ignore their obligations under the agreement wanted to enrich themselves unjustly. Therefore, the averments made in para 8 of the plaint in O.S.No.2047 of 1987 would make it clear that the plaintiffs were aware that the defendants were not going to execute the sale deed as per the Agreement of Sale. They also reserved the right to file the suit for specific performance at the appropriate time, but leave was not obtained from the court .Therefore, the plaintiffs were conscious of their right to file a suit for specific performance and having regard to the conduct of the defendants, the plaintiffs were also aware that the defendants would not act as per the terms of Agreement of Sale and therefore, the cause of action for filing the suit for specific performance was available to the plaintiffs, even on the date of filing of the suit O.S.No.2047 of 1987. Nevertheless, they did not file the suit for specific performance and were content with the suit for bare injunction and therefore, it cannot be contended by the plaintiffs that as per the Agreement of Sale, cause of auction for filing the suit for specific performance would arise two months after the disposal of OS.No.1644 of 1969. In a suit for specific performance, though time has been mentioned for performing the contract, when the parties expressed or conducted themselves in a manner, which would give an indication that one party was not interested in fulfilling the obligations under the contract, the other party cannot wait for the expiry of the time given in the agreement and the other party ought to have filed the suit for specific performance immediately to show his bona fide.
33.Under Order 2 Rule 2 CPC, when a suit was filed on the basis of certain cause of action, the plaint shall include whole claim, which the plaintiff is entitled to make in respect of the said cause of action and all reliefs arising out of the same cause of action, shall be set out in one and the same suit. In this suit, the cause of action arose for the plaintiffs to file the suit O.S.No.2047 of 1987 was the attempt made by the defendants in interfering with their possession and enjoyment of the suit property. At that time, the defendants also made it clear that they would not act as per the terms of the agreement or in other-words the plaintiffs realised by the conduct of the defendants that the defendants would not act as per the Agreement of Sale. The plaintiffs also admitted that in para 6 of the present suit in O.S.No.1595 of 1987 that the plaintiffs were in possession of the suit property in part performance and that was admitted by Thirumalaisamy Nadar. Therefore, when the plaintiffs were in possession of the property in part performance of Agreement of Sale and when that possession was attempted to be interfered with by the defendants and the conduct of the defendants also made it clear that they are not honouring the agreement, the cause of action for filing of the suit for specific performance and also for injunction arose and at that time, filing the suit for bare injunction without filing the suit for specific performance, would only lead to conclusion that the plaintiffs omitted to include all the reliefs, arising out of the same cause of action. In other-words, it cannot be contended that the cause of action for filing the suit for specific performance did not arise, when the possession of the plaintiffs was attempted to be interfered with and therefore, the plaintiffs were justified in not including the relief of specific performance, while filing the suit O.S.No.2047 of 1987.
34.In this connection, it is pertinent to refer the judgment reported in (2004) 2 SCC 277 in the case of Kunjan Nair Sivaraman Nair vs. Narayanan Nair and others, the Hon'ble Supreme Court interpreted Order 2 Rule 2 as follows:-
"8. A mere look at the provisions shows that once the plaintiff comes to a court of law for getting any redress basing his case on an existing cause of action, he must include in his suit the whole claim pertaining to that cause of action. But if he gives up a part of the claim based on the said cause of action or omits to sue in connection with the same, then he cannot subsequently resurrect the said claim based on the same cause of action. So far as sub-rule (3) is concerned, before the second suit of the plaintiff can be held to be barred by the same, it must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is the same in both the suits and if in the earlier suit the plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had failed to press into service in that suit cannot be subsequently prayed for except with the leave of the court. It must, therefore, be shown by the defendants for supporting their plea of bar of Order 2 Rule 2 sub-rule (3) that the second suit of the plaintiff filed is based on the same cause of action on which its earlier suit was based and that because it had not prayed for any relief and it had not obtained leave of the court in that connection, it cannot sue for that relief in the present second suit. A Constitution Bench of this case of Gurbux Singh v. Bhooralal AIR 1964 SC 1810 : (1964)7 SCR 831 in this connection has laid down as under: (AIR p. 1812, para 6) 6. In order that a plea of a bar under Order 2 Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 Rule 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the court the identity of the cause of action in the two suits. It is common ground that the pleadings in CS No. 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under Order 2 Rule 2, Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the stage of the appeal the learned District Judge noticed this lacuna in the appellants case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar under Order 2 Rule 2, Civil Procedure Code was not maintainable.:
9. The above position was again illuminatingly highlighted by this Court in Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. [(1997)1 SCC 99]
10. Order 2 Rule 2 sub-rule (3) requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based. Therefore, there must be identical cause of action in both the suits, to attract the bar of Order 2 sub-rule (3). The illustrations given under the rule clearly brings out this position. Above is the ambit and scope of the provision as highlighted in Gurbux Singh case [AIR 1964 SC 1810 : (1964)7 SCR 831] by the Constitution Bench and in Bengal Waterproof Ltd. [(1997)1 SCC 99] The salutary principle behind Order 2 Rule 2 is that a defendant or defendants should not be vexed time and again for the same cause by splitting the claim and the reliefs for being indicted in successive litigations. It is, therefore, provided that the plaintiff must not abandon any part of the claim without the leave of the court and must claim the whole relief or entire bundle of reliefs available to him in respect of that very same cause of action. He will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the court.
35.In the said judgment, having regard to the facts of that case, the Hon'ble Supreme court has held that Order 2 Rule 2 CPC will not apply.
36.As a matter of fact, the facts of the case, in the judgment reported in (2013)1SCC 625 in the case of Virgo Industries (Eng.) Private Limited vs. Venturetech Solutions Private Limited, is similar to the facts of the present case.
37.In the said judgment, the Hon'ble Supreme Court discussed the scope of Order 2 Rule 2 CPC and held that when there is an Agreement of Sale and without filing a suit for specific performance to enforce the Agreement of Sale, if an agreement-holder filed a suit for injunction and latter on, filed a suit for specific performance, the later suit is barred under Order 2 Rule 2, as the right to seek the relief of specific performance was available, while filing the first suit and dismissed the second suit under Order 2 Rule 2 CPC.
38.In that judgment, it is stated that the cardinal requirement for application of the provisions contained in Order 2 Rule 2 CPC is that the cause of action in the later suit must be the same as in the first suit. Having regard to the facts of that case, it is held by the Hon'ble Supreme Court as follows:-
"14. The averments made by the plaintiff in CSs Nos. 831 and 833 of 2005, particularly the pleadings extracted above, leave no room for doubt that on the dates when CSs Nos. 831 and 833 of 2005 were instituted, namely, 28-8-2005 and 9-9-2005, the plaintiff itself had claimed that facts and events have occurred which entitled it to contend that the defendant had no intention to honour the agreements dated 27-7-2005. In the aforesaid situation it was open for the plaintiff to incorporate the relief of specific performance along with the relief of permanent injunction that formed the subject-matter of the above two suits. The foundation for the relief of permanent injunction claimed in the two suits furnished a complete cause of action to the plaintiff in CSs Nos. 831 and 833 to also sue for the relief of specific performance. Yet, the said relief was omitted and no leave in this regard was obtained or granted by the Court."
39.It is also held by the Hon'ble Supreme Court that in the instant case, though leave to sue for the relief of specific performance at a later stage was claimed by the plaintiff, admittedly, no such leave was granted by the court. In the present case also, though leave was claimed in the plaint, no leave was obtained. While explaining the scope of Order 2 Rule 2 CPC, the Hon'ble Supreme court has held as follows:-
"9. Order 2 Rule 1 requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order 2 Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order 2 Rule 2 CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order 2 Rule 2(2) does not contemplate omission or relinquishment of any portion of the plaintiffs claim with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished. Such leave of the court is contemplated by Order 2 Rule 2(3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the court had been obtained. It is, therefore, clear from a conjoint reading of the provisions of Order 2 Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order 2 Rule 2 contemplate two different situations, namely, where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particular relief he had obtained leave of the court in the first suit.
10. The object behind the enactment of Order 2 Rules 2(2) and (3) CPC is not far to seek. The Rule engrafts a laudable principle that discourages/prohibits vexing the defendant again and again by multiple suits except in a situation where one of the several reliefs, though available to a plaintiff, may not have been claimed for a good reason. A later suit for such relief is contemplated only with the leave of the court which leave, naturally, will be granted upon due satisfaction and for good and sufficient reasons. The situations where the bar under Order 2 Rules 2(2) and (3) will be attracted have been enumerated in a long line of decisions spread over a century now. Though each of the aforesaid decisions contain a clear and precise narration of the principles of law arrived at after a detailed analysis, the principles laid down in the judgment of the Constitution Bench of this Court in Gurbux Singh v. Bhooralal [AIR 1964 SC 1810] may be usefully recalled below: (AIR p. 1812, para 6) 6. In order that a plea of a bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. The above principles have been reiterated in several later judgments of this Court. Reference by way of illustration may be made to the judgments in Deva Ram v. Ishwar Chand [(1995)6 SCC 733] and Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. [(1997)1 SCC 99 : AIR 1997 SC 1398].
11. The cardinal requirement for application of the provisions contained in Order 2 Rules 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. It will be wholly unnecessary to enter into any discourse on the true meaning of the said expression i.e. cause of action, particularly, in view of the clear enunciation in a recent judgment of this Court in Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust [(2012)8 SCC 706 : (2012)4 SCC (Civ) 612]. The huge number of opinions rendered on the issue including the judicial pronouncements available does not fundamentally detract from what is stated in Halsburys Laws of England (4th Edn.). The following reference from the above work would, therefore, be apt for being extracted hereinbelow:
Cause of action has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from the earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. Cause of action has also been taken to mean that particular action on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.
40.Ultimately, the Hon'ble Supreme court held that there is no provision in the Specific Relief Act 1953, which would require a plaintiff to wait for expiry of the due date for the performance of agreement, in a situation where the defendant made his intention clear not to act as per the agreement. Therefore, having regard to the authoritative pronouncement of the Hon'ble Supreme court in the above case, when the Agreement of Sale is admitted and when the plaintiffs is aware that the defendants are not going to honour the Agreement of Sale and the possession of the plaintiffs was sought to be interfered with, the plaintiffs ought to have filed the suit for specific performance and for injunction and if he omitted to sue for specific performance, but content with filing the suit for injunction without obtaining the leave from the court, the subsequent suit for specific performance is clearly barred under Order 2 Rule 2 CPC. The Hon'ble Supreme Court also made it clear that the plaintiff cannot say that the time, for filing the suit for specific performance has not arisen as per the Agreement of Sale.
41.Even accepting the case of the plaintiffs that at time of filing of the suit O.S.No.2047 of 1987, the cause of action for the suit for specific performance did not arise as per the Agreement of Sale Ex.A1 as the defendants agreed to execute the sale deed within two months from the date of getting relief in O.S.No.1644 of 1969 and the suit was pending, what was the necessity for the plaintiffs to file the suit in O.S.No.1595 of 1967 immediately after the suit for injunction was filed. If really the cause of action for filing the suit for specific performance has not arisen and the plaintiffs were entitled to wait till the decree passed in O.S.No.1644 of 1969 in favour of Thirumalaisamy Nadar or the cause of action for specific performance would arise only after the expiry of two months from the date of decree passed in O.S.No.1644 of 1969, the present suit filed in 1987 during the pendency of O.S.No.1644 of 1969 would be a premature one. The fact that the plaintiffs filed the suit in O.S.No.1595 of 1987 immediately after filing of the suit O.S.No.2047 of 1987 would only lead to the conclusion that the cause of action for filing the suit for specific performance was available at the time of filing O.S.No.2047 of 1987 and the plaintiffs deliberately did not pray for such relief while filing O.S.No.2047 of 1987 and no leave was obtained and therefore, latter suit O.S.No.1598 of 1987 is clearly barred under Order 2 Rule 2 CPC.
42.Accordingly, the Point No.4 is answered against the appellants.
43.Having regard to the findings given to Point No.4 that the suit O.S.No.1595 of 1987 was barred under Order 2 Rule 2 CPC, there is no necessity to give any finding in respect of the other points for consideration. Nevertheless, the trial court dealt with all these issues and the parties also advanced arguments on these points for consideration and therefore, I am also dealing with the others points for consideration.
44.Point Nos.1 to 3:- It is settled law that in a suit for specific performance, the plaintiff should come to the court with clean hands and disclose all materials facts, should not be guilty of suppression of fact and should prove his readiness and willing to enforce the agreement of sale from the date of execution, till the date of getting the sale deed and also to prove that he has got means to pay the balance sale consideration. When the agreement of sale is disputed, a burden is also on the plaintiff to prove the agreement of sale. In this case, the defendant denied the agreement of sale Ex.A1 and therefore, the burden is on the plaintiffs to prove that agreement of sale was executed between Thirumalaisamy Nadar and the plaintiffs and advance of Rs.15,000/- was paid and thereafter, Rs.5000/- was also paid as per Ex.A2. As stated supra, to prove Ex.A1, the 2nd plaintiff was examined as PW1, and deposed about the execution of Ex.A1. There are two attesting witnesses to Ex.A1 and according to the plaintiffs, the 2nd defendant is one attesting witness and the 2nd plaintiff is the other attesting witness and it is the case of the plaintiffs that the Scribe P.V.Narayanan was brought by Thirumalaisamy Nadar and therefore, they were not able to examine any other witness to prove Ex.A1. The second defendant examined himself as DW1 and denied the signature. Therefore, we have to take the evidence of PW1, either to believe or reject Ex.A1. To prove that the signature found in Ex.A1 is that of Thirumalaisamy Nadar, the plaintiffs filed Exs.A13 to A20. The documents were filed by Thirumalaisamy Nadar in O.S.No.1644 of 1969. The trial court held that the signature found in Ex.A1 is similar to the signature of Thirumalaisamy Nadar found in Exs.A13 to A20. The trial court, taking into consideration of the totality of circumstances, disbelieved Ex.A1 and held that Ex.A1 was not proved to have been executed by Thirumalaisamy Nadar. According to me, the plaintiffs failed to prove the Ex.A1 for the following reasons:-
(i)There are corrections in extent and amount in various places in the agreement of sale. Though, corrections and interpolations were mentioned at the bottom of the page to give an appearance of authenticity, having regard to the difference in ink and the style of writing of the body of the agreement of sale and the corrections and interpolations would make it clear that the interpolations could not have been done at the time of execution or earlier to that. Therefore, interpolations must have been done after the agreement of sale was executed.
(ii)Further, it is doubtful whether the plaintiffs would have entered into such agreement of sale and paid Rs.20,000/- in part performance of the contract. The plaintiffs were aware that O.S.No.1644 of 1969 was pending at the time of execution of Ex.A1. They were also aware that the tenant Sadayappa Thevar filed petition under section 9 of the Tamil Nadu City Tenants Protection Act, who purchased the leasehold property in his occupation. The plaintiffs also claimed to be a subtenant under Sadayappa Thevar and in such circumstances, it is highly doubtful whether the plaintiffs would have agreed to purchase the property by paying 50% of the sale consideration. That would only show that the plaintiffs were interested in purchasing litigation as the 2nd plaintiff was aware of the court proceedings and had experience in conducting two cases viz., O.S.Nos.510 and 544 of 1977.
(iii)It is also not proved by the plaintiffs that they came into possession of the suit property in the year 1975 as a subtenant. The plaintiff have not stated the extent of land taken by them on sub-lease from Sadayappa Thevar. Including the 2nd plaintiff, there were 12 sub-tenants under Sadapayya Thevar and therefore, having regard to the total extent of land and the extent of land claimed by the plaintiffs under the agreement of sale Ex.A1, it cannot be believed that the plaintiffs were put in possession of the suit property.
(iv)It is not the case of the plaintiffs that they agreed to purchase the extent mentioned in Ex.A1 and it is the specific case of the plaintiffs that they were in possession of that extent and that was agreed to be sold under Ex.A1. When the plaintiffs failed to give any details about the subtenancy under Sadapaya Thevar, it cannot be believed that the plaintiffs were in possession of the suit property even in the year 1975. It is the specific case of the plaintiffs that in the year 1975, after the second plaintiff was asked to vacate the property, in which he was doing business, he came into possession under Sadayappa Thevar in the year 1975. That was proved to be false by Ex.A25, the compromise filed in O.S.No.544 of 1997 on 18.12.1980. Therefore, in the year 1979, the 2nd plaintiff would not have been in possession of the property.
45.It is the admission of PW1 that after vacating the propriety, in which he was doing business, which was the subject matter of O.S.Nos.510 and 544 of 1977, he became the subtenant under Sadayappa Thevar. The two suits were settled on 18.12.1980 and thereafter, the 2nd defendant vacated the premises and therefore he could not have been in possession of the property on that date of agreement of sale. Further, it is the specific case of the PW1 that he was inducted as the subtenant under Sadayappa Thevar and constructed a shed in the leasehold property. But the recitals in Ex.A1 is contrary to his case. The recitals in Ex.A1 would admit that the first plaintiff was in possession of the suit property and the owner has no objection for the 2nd plaintiff to put up any shed or using the suit property for his business. The plaintiffs also did not file any proof to show that they came into possession of the property in the year 1975 and constructed a shed as alleged by them. In the plaint, it is stated that the plaintiffs were put in possession of the suit property in part performance of the agreement of sale, which presupposes the fact that earlier to that, the plaintiffs were not in possession and all these aspects, were considered by the trial court and held that agreement of sale could not be a genuine one as contended by the plaintiffs and I agree with the finding of the trial court.
46.The second defendant was also not consistent with regard to Ex.A2 and in the cross examination, he would state that Ex.A2 is not the receipt for the payment of Rs.5,000/- and there is no receipt to prove the payment of Rs.5,000/- and immediately, he has stated that the receipts were available for payment of Rs.15,000/- and Rs.5,000/- and Exs.A1 and A2 were simultaneously written. Therefore, taking into consideration of all these aspects, I am also of the opinion that the plaintiffs miserably failed to prove Ex.A1. Hence, the point for consideration No.1 is answered against the plaintiffs and when the plaintiffs failed to prove the agreement of sale, there is no necessity to give any finding for the points Nos.2 and 3.
47.All the judgments filed by both the counsel with regard to the relief of specific performance are not relevant, as I held that the agreement of sale Ex.A1 is not the genuine document and only after coming to the conclusion that Ex.A1 is the genuine document, this court has to find out whether the plaintiffs are ready and willing to perform their part of contract and whether the plaintiff have got means or not, whether the plaintiffs are entitled to the specific performance, when the agreement of sale was found to be not a genuine document, there is no need to give any finding with respective to the other aspects and therefore, the plaintiffs are not entitled to the relief of specific performance under Ex.A1.
48.In the result, the judgment and decree of the trial court are confirmed and the appeal suits are dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.
Index:Yes/ Internet:Yes/ 28.03.2014 er To The Subordinate Judge, Coimbatore. R.S.RAMANATHAN, J er common judgment made in A.S.Nos.312 of 1994 and 985 of 1997 and CMP Nos.1793 and 1794 of 2008 28.03.2014