SA/393/2012 of R.JAYARAMAN Vs N.SAMBANADAN on 10 November 2026

JUDGMENT

This Second Appeal has been preferred against the judgment and decree dated 16.09.2011 passed by the learned Subordinate Judge, Kanchipuram (District Court No.2, Kanchipuram) in A.S.No.15 of 2010, confirming the judgment and decree dated 28.09.2007 passed by the Subordinate Judge, Kancheepuram in O.S.No.102 of 1997. The appellant herein is the first defendant in the suit, which was filed by the first respondent/plaintiff seeking the relief of specific performance of a sale agreement, and the suit was decreed.

2. Aggrieved by the decree of the trial Court, the second defendant preferred an appeal in A.S.No.3 of 2010, and the first defendant preferred a separate appeal in A.S.No.15 of 2010. The First Appellate Court, by a common judgment, dismissed both the appeals and confirmed the judgment and decree passed by the trial Court. Challenging the concurrent findings of the Courts below, the first defendant has preferred the present Second Appeal.

3. The case of the plaintiff before the trial Court is that the first defendant is the absolute owner of the plaint schedule property. The plaintiff was inducted as a tenant in the year 1982, by paying an annual rent of Rs.6,000/-. During the subsistence of the lease, the first defendant entered into a sale agreement with the plaintiff on 01.04.1991, fixing the total consideration at Rs.1,60,000/-. On the date of the agreement itself, the plaintiff paid a sum of Rs.1,40,000/- as advance. Under the terms of the agreement, a period of five years was fixed for payment of the balance consideration of Rs.20,000/-, making the final date for performance as 31.03.1996.

3.1. As the plaintiff was already in lawful possession of the property as a tenant, he continued his possession in part performance of the contract. The first defendant handed over the patta and certain original title deeds to the plaintiff and promised to hand over the remaining title documents. However, suppressing the existence of the sale agreement, the first defendant subsequently attempted to alienate the property to third parties. Consequently, the plaintiff initially filed a suit in O.S.No.102 of 1997 for permanent injunction restraining the first defendant from alienating the suit property. Maintaining that he has always been ready and willing to perform his part of the contract, the plaintiff subsequently sought the relief of specific performance.

4. The case of the first defendant before the trial Court is that the suit is not maintainable, either in law or on facts. The first defendant denied the execution of the sale agreement, the receipt of the advance amount. He further denied that the plaintiff was never a lessee of the suit property. In fact, the plaintiff is the maternal uncle and brother-in-law of the first defendant. Till the year 1993, they lived together as a joint family, and the plaintiff was managing all family affairs.

4.1. The alleged sale agreement dated 01.04.1991 is a concocted one and it is a fabricated document. The first defendant contended that when a substantial portion of the sale price (Rs.1,40,000/-) was paid as advance, there is no plausible explanation as to why a long period of five years was fixed for paying a meager balance of Rs.20,000/-. Taking advantage of the fiduciary relationship and his role in managing the family affairs, the plaintiff used to obtain the first defendant's signatures on blank stamp papers under various pretexts. In 1991, the plaintiff obtained the first defendant's signatures in two blank stamp papers, representing that they were required for submission to the Electricity Board. Trusting the representation, the first defendant signed the papers, which have now been misused by the plaintiff to create the suit sale agreement. The scribe and the witnesses to the document are close relatives of the plaintiff. The original title deeds were stealthily taken by the plaintiff when they lived together. The suit has been filed using fabricated documents, solely to grab the property, and it is therefore liable to be dismissed.

5. Based on the above pleadings, the trial Court framed the following issues:- “ (i) Whether it is true that the plaintiff was a tenant of the suit property on yearly kuthagai amount of Rs.6000/- from the year 1993?

(ii) Whether it is true that the plaintiff entered into an agreement of sale with the 1st defendant on 01.04.1991 and paid an advance of Rs.1,40,0000/- towards sale consideration to the 1st defendant?

(iii) Whether it is true that the time to perform the contract is given for a period of 5 years and the sale agreement has to be performed by 31.03.1996?

(iv) Whether it is true that the plaintiff got signatures from the 1st defendant in blank stamp papers on the pretext that same deed has to be executed to the Electricity Board and concocted and created the same agreement?

(v) Whether the suit is barred by limitation?

(vi) Whether it is true that the plaintiff was never in possession of the suit properties and paying the kist to the Government for the same?

(vii) Whether it is true that the 1st defendant handed over patta and some of the original title deeds and xerox copy of the title deeds relating to suit properties on the date of sale agreement?

(viii) Whether it is true that during the pendency of the suit the 1st defendant has sold the suit property in favour of the 2nd defendant as per the registered sale deed dated 02.03.1997?

(ix) Whether it is true that the 2nd defendant was in possession and enjoyment of the suit properties after he purchased the same as per sale deed dated 02.03.1997?

(x) Whether the 2nd defendant is the bona fide purchaser?

(xi) Whether the suit is bad on the ground of mis-joinder of unnecessary party?

(xii) Whether the plaintiff is entitled for a decree as prayed for?

(xiii) To what relief?”

During the course of trial, the plaintiff’s side P.W.1 and P.W.2 were examined and Exs.A1 to A18 were marked. On the side of the defendants, D.W.1 and D.W.2 were examined and Exs.B1 to B15 were marked. Upon considering the oral and documentary evidence, the trial Court decreed the suit.

6. Aggrieved by the said decree of the trial court, the first defendant had preferred an appeal in A.S.No.15 of 2010, and the second defendant preferred an appeal in A.S.No.3 of 2010. The First Appellate Court framed the following points for determination:- “(i) as to whether the judgment and decree passed by the trial Court are sustainable in law.

(ii) whether the appellants are entitled to the relief sought for in the appeals.

7. The First Appellate Court dismissed both the appeals, confirming the decree and judgment of the trial Court. Challenging the same, the first defendant has preferred this Second Appeal.

8. At the time of admission of this Second Appeal, this Court formulated the following substantial questions of law:-

(i) Whether the subsequent suit for specific performance is legally barred under Order II Rule 2 of the Code of Civil Procedure, when the plaintiff had previously filed a suit for permanent injunction on the very same cause of action without obtaining leave of the Court;

(ii) Whether the Courts below are justified in granting the equitable relief of specific performance, when an inordinate and unexplained delay of nearly seven years passed from the date of the sale agreement before the proper representation of the plaint, showing a total lack of readiness and willingness;

(iii) Whether the execution of the sale agreement can be legally inferred under circumstances where a primary sum is paid as advance and an unnatural period of five years is granted for a meager balance consideration, amidst established by fiduciary familial relations between the parties.

9. The learned counsel appearing for the appellant/first defendant submitted that the appellant/first defendant, having categorically denied the execution of the sale agreement (Ex.A2), as well as the passing of consideration, the entire burden of proof rests squarely on the plaintiff to establish the genuineness of the agreement and the alleged payment of Rs.1,40,000/- as advance. It is further submitted that the oral and documentary evidence adduced by the plaintiff falls short of proving the execution and passing of consideration.

9.1. The learned counsel for the appellant further submitted that fixing of a long duration of five years for completing the transaction to pay the meager balance amount of Rs.20,000/-, after having allegedly paid a substantial sum of

Rs.1,40,000/- on the date of the agreement itself, is inherently improbable and creates a deep suspicion over the genuineness of the transaction. It is submitted that the plaintiff is none other than the maternal uncle and brother-in-law of the appellant/first defendant, who stood in a fiduciary capacity, managing the entire family affairs, and abused this trust by converting blank signed stamp papers obtained from the appellant under the pretext of Electricity Board formalities into the suit sale agreement.

9.2. The learned counsel for the appellant also submitted that as per the cross-examination of P.W.1, the suit property comprises vast lands, a common Well, and service connections, yet, no separate properties or distinct considerations were specified, which structural omission creates a serious doubt regarding the true nature and existence of the agreement. It is further submitted that originally, the property belonged to one Narasimhamoorthy, who is the father of the plaintiff, and he settled the properties in favour of the father of the first defendant. The first defendant himself has purchased several items through his own independent efforts, yet the plaintiff created Exhibit A2 in the form of a sale agreement, thereby approaching the Court with unclean hands.

9.3. It is further submitted by the learned counsel for the appellant that the plaintiff had previously filed a suit for bare permanent injunction (O.S.No.102 of 1997) on the very same cause of action. Having failed to seek leave of the

Court under Order II Rule 3 of the CPC to omit the relief of specific performance at that juncture, the present subsequent suit for specific performance is legally barred under Order II Rule 2 of the CPC.

9.4. The learned counsel for the appellant further submitted that the agreement is dated 01.04.1991, but the plaintiff did not take any steps to execute the sale deed within a reasonable period of time. The suit was preferred only at the tail-end of the limitation period, on 29.03.1996, and was subsequently returned for deficit court fee before being re-presented in the year 1997. This protracted delay of nearly seven years from the date of the agreement, demonstrates a complete absence of readiness and willingness on the part of the plaintiff, dis-entitling him to the discretionary relief of specific performance under Section 20 of the Specific Relief Act. It is also submitted that the plaint pleadings are not properly verified in strict compliance with the provisions of Order VII of the CPC, rendering the presentation of the plaint procedurally defective.

9.5. The learned counsel for the appellant further submitted that during the pendency of the proceedings, the disputes between the parties were settled out of Court by their conduct and subsequent arrangements. Consequently, the appellant has filed C.M.P.No.4887 of 2025 under Order XXIII Rule 3 of the CPC to record the adjustment and settlement of the suit claim, and

C.M.P.No.4889 of 2025 under Order XLI Rule 27 of the CPC to receive the Sale Deed dated 02.03.1997 and the Release Deed dated 12.01.2012 as additional evidence.

10. Despite several opportunities being granted to the respondents, and the names of their counsels having also been printed in the cause list, there is no representation on behalf of the respondents. Consequently, this Court proceeded to hear the arguments of the learned counsel for the appellant, took up the main Second Appeal along with the connected Civil Miscellaneous Petitions for consideration, and perused the materials available on record.

11. In this case, the parties are close relatives and the plaintiff is maternal uncle and brother-in-law of the defendant, however, the plaintiff nowhere stated in the plaint about the close relationship between the plaintiff and the defendant and filed the suit for specific performance of contract based on the sale agreement.

12. According to the plaintiff, he and the defendant entered into a sale agreement in respect of the suit property as the plaintiff is a tenant in the suit property. The sale price was fixed at Rs.1,60,000/- as on 01.04.1991. On the date of the agreement itself, a sum of Rs.1,40,000/- was paid as advance of the sale price. The time was fixed as five years to complete the contract, however, the defendant failed to execute the sale deed, hence filed the suit.

13. The defendant denied the agreement and receipt of the sale advance and according to the defendant, the plaintiff is his maternal uncle and brother in law and residing along with the defendant, while so, he used to obtain signatures for various purposes like for the Electricity Board and other purposes. Thereby, the plaintiff obtained his signature in blank papers and by misusing the said documents, filed the suit. Since the defendant denied the execution of agreement and receipt of the advance, the plaintiff has to prove his case through proper evidence. The plaintiff examined PW1 and PW2 and marked Ex.A1 to A18. The plaintiff-side witnesses deposed in favour of the plaintiff. However, the plaintiff failed to prove the mode of payment and fixing of five years for the contract of sale itself creates doubt over the genuineness of the sale agreement. The date of agreement is 01.04.1991. But the suit is filed in the year 1997 after a long time. It is well-settled law that as far as the suit for specific performance is concerned, the plaintiff has to plead and prove the readiness and willingness. But in this case, the readiness and willingness has not been proved and the plaintiff fixed the time of 5 years for sale and not taken any steps for six years and filed the suit belatedly.

14. The said conduct of the plaintiff shows that he was not ready and willing to perform his part of the contract. Further, the contention of the defendants that the plaintiff was under fiduciary capacity and maintaining the family has not been specifically denied by the plaintiff. Thereby, the burden lies heavily on the plaintiff to prove the execution and passing of consideration of the agreement. However, the plaintiff failed to the prove his readiness and willingness to get the sale deed in his favour within a reasonable time. The said aspects have not been considered by the Courts below and the Courts below have not even framed issue in respect of readiness and willingness. It is a main point to be denied by the Courts below.

15. Further, the plaintiff himself admitted that he had filed a suit in O.S.No.1/1996 for the relief of permanent injunction restraining the defendants from alienating the suit property. Thereby, on the date of filing of the suit itself, the defendant denied the agreement and the cause of action arose on the same date for specific performance of contract. But the plaintiff failed to get permission of the Court in the pending suit for filing this suit under Order II Rule 2(3) of C.P.C. Thereby, this suit is hit by Order II Rule 2(2) of C.P.C. After filing of the previous suit, the plaintiff did not even issue notice to the defendant to execute the sale deed in favour of the plaintiff. The said material aspects have not been considered by the Courts below.

16. At this juncture, the learned counsel appearing for the appellant relied on the following judgments:-

1. J.P.Builders and others Vs. Ramadas and others, Civil Appeals Nos.9821-9822 of 2010.

2. Sukhwinder Singh Vs. Jagroop Singh, AIR 2020 Supreme Court 4865.

3. Sukbir Singh and another Vs. Brij Pal Singh and others, (1997) 2 SCC 200.

4. N.P.Thirugnanam Vs. Dr.R. Jagan Mohan Rao and others, AIR 1996 Supreme Court 116.

5. Thirugnanasambandam Vs Kaliaperumal and others, 2013 (3) CTC 577.

6. Govindappa Naidu Vs. C. Sidda Chetty and others, reported in 2003-3 law Weekly 479.

17. On a careful perusal of those judgments, it is clear that it is a suit for specific performance of contract. The plaintiff must establish his readiness and willingness to perform his part of the contract and the plaintiff notifying the owner of the suit property about his readiness to pay balance and calling him for execution of sale deed and the plaintiff was never ready with resources and money to fulfil his part of contract and the suit has to be dismissed. Further, it is clear that when the first suit was filed for injunction, subsequently a suit was filed for specific performance in relation to the same property and the defendant denied the execution of agreement, the cause of action arose from the date of denial.

18. In the case on hand also, the plaintiff failed to prove his readiness and willingness to get the sale deed in his favour and filed the suit in O.S.No.1 of 1996 for permanent injunction restraining the defendants from alienating the property. While so, on the date of filing of previous suit itself, there was a denial by the defendant. Hence the cause of action arose on the date of filing of the previous suit itself, but the plaintiff not having obtained leave under Order 2 Rule 2(3) of CPC and thereby the present suit barred under Order 2 Rule 2(2) of the CPC.

19. In view of the said judgments and the discussion made supra, the judgments and law are in favour of the appellant, and the decree and judgment passed by the courts below are unsustainable and liable to be set aside.

20. Two applications have been preferred by the appellant alongside the main appeal, wherein C.M.P.No.4887 of 2025 is filed to record the compromise under Order XXIII Rule 3 of the CPC, and C.M.P.No.4889 of 2025 is filed to receive additional evidence. In respect of C.M.P.No.4887 of 2025, it is observed that a petition to record a compromise under Order XXIII Rule 3 of the CPC must be jointly executed and preferred by both the contesting parties to establish a bilateral, and consensual settlement. The present petition has been filed unilaterally by the appellant alone on the ground of an out-of-Court adjustment by conduct. In the absence of a joint application signed by parties to the dispute, the petition under Order XXIII Rule 3 of the CPC cannot be entertained and therefore, it deserves to be dismissed. Accordingly, C.M.P.No.4887 of 2025 stands dismissed.

21. In respect of C.M.P. No.4889 of 2025, the appellant seeks to produce the Sale Deed dated 02.03.1997 executed by R.Jayaraman to Mangai Ammal, and the Release Deed dated 12.01.2012 executed by the plaintiff, N.Sambandam, in favour of the second defendant, Mangai Ammal, as additional evidence. According to the appellant, the plaintiff has already sold and alienated the very same portion of the property. Since the said alienation is pending disposal of the appeal, the same is hit by lis pendency under Section 52 of the Transfer of Property Act. The said documents filed by the plaintiff are not the deciding factors of the suit and already below the trial court, both sides have already adduced sufficient oral and documentary evidence and the said evidence are sufficient to decide the case effectively. Without those documents, the Court can still pronounce a complete judgment, and made there are no grounds to attract the provisions of order 41 Rule 27 of CPC. Therefore C.M.P.No. 4889 of 2018 has no merits and deserves to be dismissed. Accordingly, C.M.P.No. 4889 of 2018 stands dismissed.

22. In the result, this Second Appeal is allowed. The judgment and decree passed by the trial court in O.S. No. 103 of 1997 dated 28.09.2007, and confirmed by the First Appellate Court in A.S. No. 15 of 2010 dated 16.09.2011, are set aside, and the suit in O.S. No. 103 of 1997 stands dismissed. No costs. 20.08.2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No kmm To

1. The Subordinate Judge, Kancheepuram.

2. The District Court No.2, Kancheepuram.

P.DHANABAL, J. kmm S.A.No.393 of 2012 20.08.2026

SA.No.393 of 2012 P.DHANABAL.,J. Today, this matter has been listed under the caption, ‘for being mentioned’ at the instance of the learned counsel for the appellant.

2. Learned counsel for the appellant has pointed out that in paragraph No.3, year of the tenancy has been wrongly mentioned as ‘1982’ instead of ‘1983’ and in paragraph No.3.1, O.S. Number has been wrongly mentioned as ‘OS.No.102 of 1997’ instead of ‘OS.No.191 of 2004’ ‘ in paragraph No.9.3, the case number has been wrongly mentioned as ‘OS.No.102 of 1997’ instead of ‘OS.No.191 of 2004’ and also in the last paragraph No.22 of the judgment, the case number has been wrongly mentioned as ‘OS.No.103 of 1997’ instead of ‘OS.No.102 of 1997’. Therefore, these typographical errors have to be corrected.

3. This court perused the records.

4. The other side also have not appeared.

5. On perusal of the records, it is observed that the abovesaid corrections are typographical errors and hence, the same have to be corrected.

P.DHANABAL.,J. gv

6. Accordingly, the said typographical errors are corrected.

7. Registry is directed to carry out the amendments and issue order copies to both the parties forthwith. 10.11.2026 gv SA.No.393 of 2012