JUDGEMENT

The appellant herein is the plaintiff in the suit in C.S.No.880 of

2007 in O.S.No.1963 of 2014, on the file of XVI Addl. City Civil Court at Chennai, who filed the said suit for the relief of declaration to declare the sale deed dated 31.01.2005 executed by him in favour of 1st defendant vide registered document No.293 of 2005 at S.R.O., Anna Nagar as sham and nominal and the same was not acted upon along with other consequential relief of injunction against the defendants 1 to 4/respondents 1 to 4. The defendants 1 and 2 remain exparte before the trial court as well as 4th respondent bank also remain exparte. The 3rd respondent alone contested the suit as well as the appeal.

2. For the sake of convenience, parties are referred as per the ranking in the suit.

3. The learned counsel for plaintiff would submit that as a promoter of residential Flats, he was approached by the 1st defendant to purchase the said flat that was being build in Plot No.221, Door No.1, 6th Main Road, Sri Ayyappa Nagar, Chennai and the 1st defendant represented that in order to avail a loan, he is in need of sale deed. Accordingly, the plaintiff executed a sale deed of undivided share 522 sq.ft. with valid consideration of Rs.1,67,040/- on 31.01.2005 and also executed a construction agreement of 1065 sq.ft. value of Rs.13,22,085/-. For that, a sum of Rs.5000/- was paid as token advance and there was a balance of Rs.13,17,085/-. Since the sale of undivided share is only a sham and nominal document, the payment will be adjusted after construction of the flat, but the cheque issued by the 1st defendant was returned on account of “insufficient funds”. On enquiry, the plaintiff found that the 1st defendant cheated him. The plaintiff after due deliberation, he agreed to hand over the title deed as well as balance payment, but possession was not handed over to him by the plaintiff. Subsequently, the plaintiff came to know that defendants 1 and 2 forged his signature and created a document in the name of plaintiff and mortgaged the property with the Federal Bank, 3rd defendant herein and obtained loan of Rs.11,56,916/-. Thereafter, 1st defendant created another set of mortgage loan with different bank and obtained another loan of Rs.10,00,000/-. Thus, as on date, two mortgage deeds were created based on the fabricated document and the same would not bind the plaintiff. To safeguard his interest in the suit property, the plaintiff approached the court to declare the sale deed executed in favour of 1st defendant on 31.01.2005 as sham and nominal and also consequential relief not to cause interference with the possession and enjoyment of property as described in the plaint schedule.

4. Before the trial court, except the 3rd defendant bank, all the three defendants remain exparte. Both plaintiff and 3rd defendant adduced their oral and documentary evidence. Based on that, the trial court framed issues and finally held that the plaintiff failed to prove that the sale deed stands in the name of 1st defendant is sham and nominal document nor he is entitled to give possession of the property. As per the evidence rendered by 3rd defendant bank, payment also made by 1st defendant on various dates. Therefore, the trial court declined to declare the sale deed as null and void, as such sham an nominal and also not granted interim injunction stating that the plaintiff is not entitled to possession of the property after receipt of entire sale consideration, thereby the suit was dismissed. Aggrieved over the findings, the plaintiff preferred this appeal.

5. The learned counsel for plaintiff would submit that the trial judge failed to take note of the fact that the 1st defendant, against whom the sale deed executed and as on date, 1st defendant has not raised any objection for the relief claimed by the plaintiff even after receipt of notice in the suit, without which, the trial court erroneously concludes that the plaintiff not proved his case as such is unjust and liable