A.S.(MD).No.119 of 2016

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 13.02.2023

Pronounced on : 24.04.2023

THE HONOURABLE MRS.JUSTICE N.MALA

A.S.(MD)No. 119 of 2016

Syed Ibrahim

...Appellant/3rd Defendant

Vs.

1.Arjunan

...1st Respondent/Plaintiff

2.P.Kuthalam

3.E.Devi

...Respondents 2 & 3/ Defendants 1 & 2

4.M.Murugan

5.Meena

...Respondents 4 & 5/ Defendants 4 & 5

Prayer: Appeal Suit is filed under Order 41 Rule 1 & 2 r/w. Section 96 of C.P.C,

1908, praying to set aside the Judgment and Decree dated 26.04.2016 made in

O.S.No.34 of 2006, on the file of III Additional District Court, Tirunelveli.

For Appellant :Mr.M.Ajmal Khan

Senior Advocate

for M/s.Ajmal Associates

For R1

: Mr.G.Prabhu Rajadurai

For RR2 & 3 : No appearance

R4 & R5

: Dispensed with

JUDGMENT

The third defendant aggrieved by the Judgment and Decree dated 26.04.2016,

of the Trial Court in O.S.No.34 of 2006 has filed the above appeal.

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A.S.(MD).No.119 of 2016

2. The brief facts leading to the Appeal are as follows :

The suit properties originally belonged to the 1st defendant's mother, who

executed the Will dated 30.09.1999 in favour of the 1st defendant. The 1st defendant

as the owner of the suit properties executed the suit Sale Agreement dated 29.08.2005

in favour of the plaintiff for a sale consideration of Rs.1,00,000/- per acre and paid an

advance of Rs.1,50,000/- on the day of the Agreement for the sale of 12.73 acres of

lands in Pudukulam Village, Palayamkottai registration district, in Patta No.391, in

survey numbers mentioned in the schedule of properties. Encumbrance free Sale

Deed was to be executed within 4 months of the Sale Agreement. But it was also

recited that if the plaintiff paid any amounts in the interregnum lands proportionate to

the amounts received were to be alienated. According to the plaintiff possession was

also hand over to him. The plaintiff pleaded that the defendant's had suppressed the

existence of 2 mortgages over the suit properties and further stated that the delay in

completing the sale transaction was due to defendant's inability to discharge the

mortgages in time. The plaintiff further stated that he was ever ready and willing to

perform his part of the contract but the defendant's evaded performance. Meanwhile

the 1st defendant executed the settlement dated 24.02.2006 in favour of the 2nd

defendant and she in turn sold the suit properties to the 3rd defendant under 2 Sale

Deeds dated 07.04.2006. According to the plaintiff the 2nd and 3rd defendant were

not bonafide transferee's. As the 1st defendant failed to keep up his promise under

the Agreement, the plaintiff issued the suit notices dated 15.04.2006 to all the

defendant's to which unconvincing replies were sent by the defendant's on 19.04.2006

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A.S.(MD).No.119 of 2016

and 25.04.2006. Therefore the plaintiff filed the suit praying for specific performance

of the suit Agreement among other reliefs.

3. The 1st and 2nd defendant's filed a common written statement denying the

plaintiff averments. The specific case of the 1st defendant was that the suit Sale

Agreement was a forged document. The defendant's submitted that as there was no

such sale agreement, the settlement Deed as well as the Sale Deeds in favour of the

2nd and 3rd defendants respectively were valid and unassailable. The defendant's in

any event, denied that the plaintiff was ever ready and willing to perform his part of

the contract and further stated that even the suit notice was issued by the plaintiff

long after the time stipulated for completion of the sale, and that too after third party

rights were created under the Settlement Deed and the sale Deeds in favour of

defendant's 2 and 3 respectively. According to the defendant's 1 and 2, the 3rd

defendant was a bonafide purchaser for value.

4. The 3rd