2011 Supreme(Mad) 1329

High Court of Judicature at Madras
R. MALA
Mumtaj & Others
Versus
K.P. Ramasamy Gounder & Others
Appeal Suit Nos.387 & 388 of 2008 & M.P.No.1 of 2008
Decided on : 10-03-2011

A co-owner can maintain a suit for injunction and recovery of possession on behalf of the other co-owners because each and every co-owner has right in each and every bit of the land. Possession of the one co-owner is possession of the other co-owner also, since the appellants want to protect the property from the third party, and co-owner is entitled to file the suit against the third party.

Headnote:

SPECIFIC PERFORMANCE - SALE AGREEMENT - EXECUTION - POSSESSION - CLEAN HANDS DOCTRINE - INJUNCTION - CO-OWNER - SUIT AGAINST THIRD PARTY - OWNERSHIP - POSSESSION - ENTITLEMENT TO INJUNCTION.

Fact of the Case:

Plaintiff and defendants 1 to 4 entered into a Sale Agreement for Rs.10,00,000/- on 11.05.2003. A sum of Rs.1,00,000/- was paid as an advance. Possession was to be handed over on receipt of Rs.3,00,000/-. Six months time was granted for taking the balance sale consideration and getting the Sale Deed executed. On 14.05.2003, the plaintiff paid Rs.3,00,000/- and obtained possession of the property. The property was leased out to one Kanjimalai and Selvaraj for seven years, and a sum of Rs.25,000/- was fixed as an annual lease amount. On 20.08.2001, a Lease Deed was also registered. Kanjimalai and Selvaraj filed a suit against the defendants 1 to 3 for permanent injunction. A panchayat was convened in the presence of Udumalpet Chairman Mr.T.T.Gnana Murugan and Dhali Village Panchayat President Mr.Kumaravel. It was agreed that they will release the lease hold right on receipt of Rs.3,00,000/-. In pursuance of that, Rs.3,00,000/- was paid by the plaintiff and the defendants 1 to 3 agreed to take it as an advance and got the Lease Release Deed in favour of defendants 1 to 3. The lessor removed the electrical starter wires and Ose pipes. The plaintiff, after taking possession of the property, purchased new electrical starter wires and other ose pipes, out of his own money. The plaintiff also renovated the well situated in the suit property. The plaintiff spent a sum of Rs.1,50,000/- for reclaiming the 8 acres of suit property. The plaintiff received a sum of Rs.1,25,000/- on 29.06.2003 and an endorsement to that effect was made. So far, as on 29.06.2003, defendants 1 to 4 have received a sum of Rs.5,25,000/-. Subsequently, they received a sum of Rs.15,000/- for medical expenses. In total, the plaintiff paid a sum of Rs.5,40,000/- to the defendants 1 to 4. The balance is only Rs.4,60,000/-. The plaintiff was and is always ready and willing to perform his part of contract. When the plaintiff demanded the Encumbrance Certificate, the defendants 1 to 4 have not given the same. Therefore, the plaintiff filed a petition before the Komangalam Sub Registrar's Office for getting the Encumbrance Certificate and on 22.08.2003, he received the same. Then only the plaintiff came to know that the property was mortgaged to Udumalpet Co-operative Land Development Bank for Rs.50,900/- and also the defendants 1 to 4 have entered into a Sale Agreement with Mayilathal, who is the fifth defendant. When the plaintiff made an enquiry about the Sale Agreement with Mayilathal, the defendants 1 to 4 said that they received a sum of Rs.1,00,000/- as a loan from the said Mayilathal. That Sale Agreement has been executed only for a security for the amount lent. Since the defendants are taking steps to alienate the property, the plaintiff had issued a notice through his counsel on 27.08.2003 to the defendants 1 to 5. Even though defendants 1, 3, 4 and 5 have received the notice, the fourth defendant alone has issued a reply notice with false allegations. On 08.09.2003, the plaintiff sent another notice. But the defendants 1 to 3 have not received the same. The fourth defendant alone has received the notice. The plaintiff was present in the Registration Office for getting Sale Deed from the defendants, who never turned out. The plaintiff was always ready and willing to perform his part of contract. Now, the defendants 1 to 4 along with fifth defendant have taking steps to eject the plaintiff from the suit property. Hence, the plaintiff constrained to file a suit for specific performance and also alternatively for refund of advance amount paid and prayed for a decree.

Finding of the Court:

1. Ex.A.1, A.2 and A.5 are true and genuine documents. 2. The first respondent/plaintiff was not come to Court with clean hands. Hence, he is not entitled to equitable relief of decree of specific performance. 3. The first respondent/plaintiff is entitled to only refund of the amount paid under Exs.A.1, A.2 and A.5 at Rs.5,25,000/- with interest at the rate of 9% from the date of suit till the date of decree and thereafter 6% till the date of realisation. 4. The appellants are entitled injunction as prayed for in the plaint.

Issues: 1. Whether the trial Court is correct in holding that Ex.A.1-Sale Agreement is true and genuine? 2. Whether the trial Court is correct in granting decree of specific performance? 3. Whether the trial Court is correct in dismissing the suit for injunction filed by the appellants? 4. To what relief the appellants are entitled to in both the appeals?

Ratio Decidendi: 1. The plaintiff has not come to the Court with clean hands but only with false case. 2. A co-owner can file a suit against the third party for injunction to safeguard the interest of all the co-owners, without impleading the other co-owners.

Final Decision: 1. A.S.No.387 of 2008 is partly allowed. 2. The suit is decreed only for alternative prayer that the first respondent/plaintiff is entitled for recovery of the amount of Rs.5,25,000/- with interest at the rate of 9% from the date of suit till the date of decree and thereafter at 6% till the date of realisation. 3. In other aspects, the suit in O.S.No.288 of 2008 is dismissed. 4. In respect of A.S.No.388 of 2008, the appeal is allowed. 5. The judgement and decree passed by the learned Additional District Judge, Fast Track Court No.I, Coimbatore, is hereby set aside. 6. In trial Court, the suit in O.S.No.531 of 2006 is decreed as prayed for in the plaint without costs. 7. Consequently, connected miscellaneous petition is closed.