2021 Supreme(Mad) 158

IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. Ravindran, J.
N.P. Dhandapani – Appellant
Versus
M. Sivagnanam – Respondent
S.A. No. 390 of 2009
Decided On : 17-03-2021

Point of Law : Suit for specific performance and permanent injunction – Agreement of Sale - non mentioning of the correct survey number in the agreement of sale cannot be held to be due to inadvertence or ordinary mistake as claimed by the plaintiff

Headnote:

Indian Evidence Act, 1872 – Sections 154, 101 to 103 – Civil Procedure Code, 1908 – Section 100 – Suit for specific performance and permanent injunction – Challenge in this second appeal is made to the Judgment and Decree passed in A.S. on the file of the Principal District Court, reversing the Judgment and Decree passed in O.S. on the file of the Additional Special Court – Case of the plaintiff, in brief, is that the suit property belongs to the defendant and the defendant offered to sell the suit property to the plaintiff for a sum of Rs.2,00,000/- and the parties had entered into an agreement – Pertaining to the abovesaid agreement, the plaintiff paid a sum of Rs.50,000/- as advance on the date of the agreement and the parties had agreed to complete the sale transaction within a period of one year and the plaintiff further paid a sum of Rs.1,25,000/- and the defendant had made an endorsement with reference to the abovesaid payment in the sale agreement and the balance payable is only Rs.25,000/- and the plaintiff has been ready and willing to perform his part of the contract in paying the balance sale consideration and obtaining the sale deed from the defendant and in that connection, he approached the defendant during the first week of August and the defendant did not respond properly and therefore, the plaintiff issued a legal notice calling upon the defendant to perform his part of the contract by accepting the balance sale consideration and the defendant sent a reply containing the false allegations. – It is thus evident that the defendant is not willing to execute the sale deed pursuant to the sale agreement and in the sale agreement, the survey number had been mistakenly given as 201/1 instead of 210/1, however, the parties had agreed only to enter into an agreement of sale with reference to the item 4 of the "C" schedule covered in the Registered Will executed by the deceased Palani Chettiyar and Thamathammal bequeathed in favour of the defendant and hence, according to the plaintiff, the suit has come to be laid for appropriate relief.

Findings of Court : First appellate Court has failed to properly appreciate the materials placed on record, both oral and documentary in the right perspective and in accordance with law and had given special reasons for upholding the plaintiff's case, when such reasons had not even pleaded by the plaintiff and accordingly, the reasonings and conclusions of the first appellate Court for upholding the plaintiff's case are found to be totally against the principles of law enunciated by the Apex Court and our High Court in the various decisions, particularly, wrongly shifting the burden of proof on the shoulders of the defendant, when as per the provisions of Sections 101 to 103 of the Indian Evidence Act, the burden squarely lies only upon the plaintiff to prove his case. – The determination of the first appellate Court upholding the sale agreement and Ex.A2 endorsement on the reasonings assigned by it cannot be upheld and resultantly, the reasonings and conclusions of the appellate Court with reference to the same could only be termed as perverse, illogical and irrational and accordingly, they are liable to be set aside. – There is another angle to look at the matter. – If really the parties had endeavoured to go for the sale agreement qua the suit property, the plaintiff being the alleged purchaser, would have ensured that the suit property had been properly described in the sale agreement. – Even according to the plaintiff the survey number has not been properly described in the sale agreement and only thereafter, it is found that the survey number has come to be amended in the plaint i.e. after the institution of the suit. – The abovesaid factor also would only lend credence to the defence version that as the sale agreement had not been executed by the defendant and the same had been created by the plaintiff, such errors had crept in the sale agreement and the said factor also would only go to show that the plaintiff is not sure and definite as to with reference to which property he had agreed to purchase from the defendant under Ex.A1 sale agreement. – Therefore, the non mentioning of the correct survey number in the agreement of sale cannot be held to be due to inadvertence or ordinary mistake as claimed by the plaintiff. – Substantial question of law formulated in the second appeal is answered against the plaintiff and in favour of the defendant

Result : Second Appeal Allowed