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2018 Supreme(Mad) 1373
IN THE HIGH COURT OF JUDICATURE AT MADRAS
PUSHPA SATHYANARAYANA, J.
K.A.Kumaresan - Appellant
Versus
K.S.Nanjundan and Ors. - Respondents
S.A.No.471 of 2016 and C.M.P.No.7827 of 2016
Decided on : 22-03-2018
Advocate Appeared:
For the Appellant : Mr.N.Manokaran
For the Respondents: Ms.N.Sureka, Mr.P.Valliappan, Mr.C.Manusamy.
Headnote:
Evidence Act – Section 114(g) – Transfer of Property Act, 1882 – Section 53-A – Limitation Act, 1956 – Article 54 – Specific Performance – Plaintiff in a suit for specific performance has preferred the second appeal aggrieved by the unanimous decisions of the Courts below refusing to grant him a decree. – Case of the plaintiff is that admitting the ownership of the property with the first defendant he had entered into an agreement on 11.03.1994 to purchase the same for a sum of Rs.3,00,000/- and also paid a sum of Rs.1,00,000/- as advance. – It was further agreed to complete the transaction within eleven months from the date of the agreement. – On 12.11.1994, the first defendant received a further sum of Rs.1,00,000/- from the plaintiff and had made an endorsement in the sale agreement itself. Again on 29.03.1998, the plaintiff had paid balance of the sale consideration of Rs.1,00,000/- and thereby, the first defendant had received the entire sale consideration and made an endorsement on the sale agreement itself. – Held, Evidence also goes to show that though time was not the essence of the contract, the plaintiff had not come to Court within the period of limitation. Even presuming that time was not the essence of the contract, the plaintiff is guilty of default for bringing the suit beyond the period of limitation. – Applying the principles set out in K.S.Vidyanandam and Others Vs. Vairavan, (1997) 3 SCC 1, this Court finds that there is no justification in the claim of the plaintiff for having filed the suit beyond the period of limitation and seeking the equitable relief of specific performance. – The plaintiff also had not come to Court with clean hands, as the possession aspect has not been focused by him correctly. Therefore, this Court is of the view that even though the defendants had not entered into the witness box and let-in any evidence, the plaintiff has to fall or succeed only on his own strength and not pick holes in the case of defendants. – Thus, the Courts below have thoroughly examined the evidence on record and given a finding that the plaintiff had come to Court out of time, which would impliedly amount to abandonment of his claim. – Therefore, the defendants 1 to 4 have created a third party interest by selling the property to defendants 6 to 8. The delay on the part of the plaintiff can only give an inference that the plaintiff had abandoned the contract and he had not kept the contract subsisting. – Thus, the plaintiff was non-suited on the ground of limitation by the Courts below, which is correct and no interference is warranted. – Accordingly, the questions of law are answered against the plaintiff. – Second Appeal Dismissed
1. The plaintiff in a suit for specific performance has preferred the second appeal aggrieved by the unanimous decisions of the Courts below refusing to grant him a decree.
2. The case of the plaintiff is that admitting the ownership of the property with the first defendant he had entered into an agreement on 11.03.1994 to purchase the same for a sum of Rs.3,00,000/- and also paid a sum of Rs.1,00,000/- as advance. It was further agreed to complete the transaction within eleven months from the date of the agreement. On 12.11.1994, the first defendant received a further sum of Rs.1,00,000/- from the plaintiff and had made an endorsement in the sale agreement itself. Again on 29.03.1998, the plaintiff had paid balance of the sale consideration of Rs.1,00,000/- and thereby, the first defendant had received the entire sale consideration and made an endorsement on the sale agreement itself. As per the said endorsement, no limitation was fixed for the execution of the sale. While so, on 22.08.2004, defendant Nos.1, 3 and 4 had executed a nominal registered sale agreement in favour of defendant No.5 to sell the suit property for a sum of Rs.1,50,000/-. Therefore, the plaintiff issued a notice on 28.12.2004 and filed the suit on 06.01.2005. Pending the suit, defendant Nos.1 to 4 had executed a sale deed in favour of defendant Nos.6 to 8. Hence, the suit in O.S.No.3 of 2005 on the file of the Principal Subordinate Judge, Krishnagiri, has been filed for specific performance and for permanent injunction restraining defendant Nos.1 to 4 from alienating the suit property and also to declare the sale deed dated 05.02.2007, as null and void.
3. The first defendant filed written statement and defendant No.3 had also filed another written statement, which was adopted by defendants 2 and 4. The said defendants contended that it is their joint family property and defendant Nos.2 to 4 are the sons of the first defendant. The first defendant has got only one fourth (1/4th) share in the property. The defendants also denied the execution of the sale agreement and contested that the suit itself is barred by limitation. It is further stated that on the date of the agreement dated 11.03.1994, defendant Nos.2 to 4 were minors, and hence, the document itself is void. They sought for dismissal of the suit.
4. The plaintiff examined himself as P.W.1 and also examined one Muhammed Shabbir as P.W.2 and marked Exs.A.1 to A.11. On the side of the defendants, no witness entered into the box and no document was marked.
5. The trial court dismissed the suit, against which, an appeal in A.S.No.21 of 2010 on the file of the Additional District Court, Krishnagiri, was preferred, wherein the trial Court judgment was confirmed. Hence, the instant second appeal is filed.
6. At the time of admission, the following questions of law were formulated for consideration :
“(a) Whether the suit is barred by limitation under Article 54 of the Limitation Act, 1956 ?
(b) Whether the Courts below erred in dismissing the suit on the ground that the defendants 2 to 4 were not parties to Ex.A1 to Ex.A4 especially when the joint family came to an end on the date of the partition dated 11.09.1972, whereupon, the suit property reached the hands of the first defendant as his separate property ?
(c) Whether the Courts below have committed an error in declining to grant the discretionary relief in favour of the plaintiff even though he paid the entire sale consideration to the first defendant under Ex.A1 to Ex.A3 ?
(e) Have not the Courts below committed an error in not drawing an adverse inference against the defendants under Section 114(g) of the Evidence Act for their failure to come to the witness box to give evidence in support of their pleadings ?”
7. Heard the learned counsel for the plaintiff and the learned counsel for the defendants 1 to 4, 6 and 7 and perused the materials on record.
8. It is the case of the plaintiff that the first defendant got the property in a partition betwe
