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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 16.08.2022

Pronounced on : 07.09.2022

CORAM :

THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

S.A.No. 1296 of 2004

And

C.M.P.No. 9571 of 2004

R.Kandaswamy

... Appellant/2^nd defendant

Vs.

1. Pacha Goundar

... Respondent-1 / Plaintiff

2. Meena

3. Thilak Kumar

4. Thilagavathy

5. Pavithra

6. Mangalammal

... Respondents 2 to 6/Defendants 3 to7

PRAYER

: This Second Appeal is filed under Section 100 of Civil

Procedure Code, against the Decree and Judgment dated 29.03.2004 in

A.S.No. 51 of 2003 on the file of District Court, Nilgiris at Ooty

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confirming the decree and Judgment dated 30.07.2003 in O.S.No. 269 of

1996 on the file of Sub Court, Ooty.

***

For Appellant

: Mr. R.Subramanian

For 1^st Respondent : Mr. S.K.Raghunathan

JUDGMENT

The second defendant in O.S.No. 269 of 1996 on the file of the

Sub Court, Ooty, is the appellant herein.

2. The said suit in O.S.No. 269 of 1996 had been filed by the first

respondent Pacha Gounder, seeking specific performance of an

agreement of sale dated 10.03.1993 entered into between him and the

first defendant J.Guruswamy with respect to the suit schedule property

which has been described as lands measuring 0.39 acres in S.No. 311 and

0.48 acres in S.No. 369, totally 0.87 acres together with Tea plants and

two labourer quarters at Adigaratty Village, Coonoor in Nilgiris District.

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3.

By Judgment dated 30.07.2003, the Sub Judge,

Udhagamandalam, had decreed the suit. Thereafter, the second defendant

Kandasamy had filed A.S.No. 51 of 2003 before the District Court at

Udhagamandalam. By Judgment dated 29.03.2004, the Appeal Suit was

dismissed. The second defendant has then filed the present Second

Appeal.

4. The Second Appeal had been admitted on the following

substantial questions of law:

“i) Whether in law, are not the decree and

Judgment of the Courts below vitiated in relying

on the recitals in the unregistered lease

agreement Ex.A-5 which is inadmissible under

Section 49 of Registration Act and Section 35 of

Stamp Act?;

(ii) Whether in law have not the Courts

below over looked the admission of P.W.3 that

Ex.B-2 was executed on 03.03.1993 which is

anterior to 10.03.1993 Ex.A-1?”

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5. During the course of arguments, the following two additional

substantial question of law had been framed:-

“i) Whether the second suit is barred under

Order II Rule (2) Criminal Procedure Code?;

ii) whether the suit is maintainable without

including the relief to declare the subsequent sale

deed as null and void?.”

O.S.No. 269 of 1996 [ Sub Court, Udhagamandalam]:

6. The suit was filed by the plaintiff Pacha Gounder claiming that

he and the first defendant J.Guruswamy, had entered into an agreement

of sale with respect to the suit property, namely, 0.87 acres of land

together with Tea plants and also two labourer quarters at S.Nos. 311 and

369, Adigaratty Village, Coonoor in Nilgiris District. It was stated that

the total sale consideration was Rs.1,31,500/- and an advance of

Rs.45,000/- had been paid. Since the first defendant tried to dispossess

the plaintiff, he had filed O.S.No. 154 of 1993 for permanent injunction

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before the District Munsif Court at Coonoor. It was also stated that the

plaintiff was ready with necessary amounts to pay the balance sale

consideration. However, the first defendant sold the properties to the

second defendant by sale deed dated 01.04.1993. It was stated that the

second defendant was not a bona fide purchaser. It was therefore stated

that specific performance must be directed of the agreement of sale dated

10.03.1993.

7. The first defendant in his written statement stated that he and

E.L.Chennaiya jointly owned the suit property. He