(Prayers: Second Appeal is filed under Section 100 of the Civil Procedure Code, against the Decree and Judgment of the Sub Judge, Tuticorin, passed in A.S.No.88 of 2015 dated 04.07.2018 reversing the Decree and Judgment of the Principal District Munsif Court, Tuticorin, passed in O.S.No.343 of 2011 dated 03.07.2015.

Second Appeal is filed under Section 100 of the Civil Procedure Code, against the Decree and Judgment of the Sub Judge, Tuticorin, passed in A.S.No.96 of 2015 dated 04.07.2018 reversing the Decree and Judgment of the Principal District Munsif Court, Tuticorin, passed in O.S.No.287 of 2011 dated 03.07.2015. (In both Second Appeals)

Common Judgment:

1.  These second appeals are at the instance of the plaintiff in O.S.No. 343 of 2011 and 7th defendant in O.S.No.287 of 2011.

2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

3. I have heard Mr.H.Lakshmi Shankar, learned counsel for Mr.G.Mohan Kumar, learned counsel for the appellant in both the second second appeals.

4. Though the respondents have been served and the first respondent in the second appeals also entered appearance through counsel, subsequently, vide memo dated 28.07.2025, the counsel has reported no instructions. This Court by order dated 29.07.2025 directed the name of the respondents concerned to be printed in the cause list. The Registry has also printed the name of the contesting first respondent in the second appeals. There is no representation on the side of the respondents. I have therefore proceeded to hear Mr.H.Lakshmi Shankar, learned counsel for the appellants.

5. For the sake of convenience and to avoid confusion, the parties' rank in O.S.No.287 of 2011 is followed to describe the parties to the lis.

6. The Second Appeals were admitted on 19.12.2018, on the following substantial questions of law:

               (1) Whether the plaintiff has averred and proved his readiness and willingness as contemplated under Section 16(c) of the Specific Relief Act, with regard to Ex.A.1 sale agreement when the suit is filed 30 years after the sale agreement?

               (2) When the plaintiff has traced his possession through Ex.A.1 sale agreement, whether the 1st appellate Court was right in holding that the jurisdiction of the civil Court is barred under Section 6 of the Tamil Nadu Cultivating Tenants Protection Act, has no jurisdiction to recover possession from a cultivating tenant?

               (3) When the plaintiff has traced his possession through a sale agreement whether the first appellate Court was right in holding that the suit is not maintainable for not issuing notice under Section 106 of the Transfer of Property Act?

               (4) Whether the first appellate Court was right in placing the burden of proof to disprove Ex.A.1 sale agreement on the defendants in violation of Sections 101 and 102 of Indian Evidence Act?

               (5) Whether the deposition of P.W.4 who deposed about the signature of the attester alone and not that of the executor will satisfy the statutory requirement under Section 69 of the Indian Evidence Act?

               (6) Whether the first appellate Court was right in declaring Ex.B.1 sale deed as null and void when Ex.A.1 sale agreement is not proved in accordance with Section 69 of the Indian Evidence Act?

               (7) Whether the first appellate Court was right in declaring Ex.B.1 sale deed as null and void when the plaintiff has not averred and proved his readiness and willingness with regard to Ex.A.1 sale agreement for the past 30 years?

7. Brief facts that are necessary to decide the second appeals are as follows:

               7.1. O.S.No.287 of 2011 was filed by the first respondent/Santhanam for specific performance and for declaration that the sale deed executed by the defendants 1 to 6 in favour of the seventh defendant is null and void and not binding on the plaintiff and for a consequent permanent injunction to restrain the seventh defendant from interfering with the peaceful possession and enjoyment of the plaintiff and also to direct the defendants 1 to 6 to receive balance sale consideration of Rs.2,500/- and execute the sale deed in respect of the suit property.

               7.2. The suit was resisted by the seventh defendant, who had by then purchased the property from the defendants 1 to 6, in and by a registered sale deed dated 28.04.2011, contending that the plaintiff has come to Court with a false case as if he had a valid agreement of sale with the then owner and that he was also put in possession, considering the substantial payment of advance sale consideration and that he was ready and willing to pay the balance sale consideration of Rs.2,500/-. The seventh defendant also resisted the suit on the ground that the suit is hopelessly barred by limitation.

8. Before the trial Court, the plaintiff/Santhanam examined himself as P.W.1 and four other witnesses, viz., Sanmugasundaram, Leelavathi, Nathan and Kannan were examined as P.W.2 to P.W.5. On the side of the plaintiff, 14 documents were marked as Ex.A1 to Ex.A14. On the side of the defendants, the seventh defendant/Murugan examined himself as D.W.1 and four documents were marked as Ex.B1 to Ex.B4.

9. The trial Court, dismissed the suit finding that the plaintiff is not entitled to any of the reliefs sought for.

10. The plaintiff/Santhanam preferred an Appeal in A.S.No.88 of 2015, challenging the dismissal of the suit in O.S.No.287 of 2011. The first appellate Court however reversed the findings of the trial Court and has decreed the suit.

11. As against the judgment and decree in A.S.No.88 of 2015, the plaintiff has preferred the second appeal in S.A.(MD)No.421 of 2018.

12. In the meantime, the 7th defendant/Murugan having purchased the property filed a suit in O.S.No.343 of 2011 for permanent injunction to restrain the plaintiff in O.S.No.287 of 2011 from interfering with his peaceful possession and enjoyment of the property and declaring that the plaintiff is the owner of the suit property and for recovery of possession.

13. The said suit was independently tried, where the plaintiff in O.S.No.287 of 2011 took a stand that has been taken in defence to the suit filed in O.S.No.343 of 2011. The trial Court dismissed the suit. However, on appeal in A.S.No.96 of 2015, the Sub Judge, Tuticorin, reversed the findings of the trial Court and decreed the suit.

14. As against the judgment and decree in A.S.No.96 of 2015, the seventh defendant has preferred the second appeal in S.A.(MD)No.422 of 2018.

15. Arguments of Mr.H.Lakshmi Shankar learned counsel for the appellant:

               15.1. Mr.H.Lakshmi Shankar, learned counsel for the appellant would contend that the plaintiff did not even come to Court with a definite case and the document itself is filed as a receipt and is not an agreement on the requisite and adequate non judicial stamp paper. He would also point out to the agreement and receipts and referring to the alleged sale agreement for Rs.47,500/-, Mr.H.Lakshmi Shankar, would state that the plaintiff claimed to have advanced a sum of Rs.45,000/- even in the alleged agreement dated 13.05.1981, which was entered into by the plaintiff with the father of the defendants 1 to 6. The learned counsel would further state that the contents of the said document do not indicate the time within which the balance sum of Rs.2,500/- is to be paid, nor do they mention any obligation to hand over possession by the plaintiff. It is therefore the submission of the learned counsel, Mr.H.Lakshmi Shankar, that even if it is assumed that possession was given, the plaintiff must independently establish that he was put in possession of the property in pursuance of the agreement of sale in order to claim any right in his favour. Referring to Ex.A2, which is dated 07.02.2003, Mr.H.Lakshmi Shankar, contended that the necessity for executing the documents, appears from a reading of the said document , was for mutation and getting electricity service connection in the name of the plaintiff. He invited my attention to the fact that the execution of Ex.A2 does not even refer to EB service connection in the first place. Further, he would also point out that Rs.45,000/- alone was reflected in Ex.A2 and there been no reference the first sale agreement for Rs.47,500/-.

               15.2. The appellant's definite case was that the defendant/ Santhanam was only a caretaker and he was also put on notice of the purchase by the appellant prior to 28.04.2011 and that the plaintiff had even expressed no objection for the appellant purchasing the suit property. He would state that Ex.A2 was executed only by one of the sons of the original owner/Alangaravelar, viz., the sixth defendant in the suit.

               15.3. Mr.H.Lakshmi Shankar, would further state that the first appellate Court has erroneously held that Ex.A1 agreement has been proved by examining a son of one of the attesting witnesses to Ex.A1, without even giving a finding regarding Ex.A2. He also invited my attention to the cross examination of the plaintiff's witness, which clearly indicate that the plaintiff was not in possession. He would also state that the first appellate Court has placed reliance on the revenue records standing in the name of the plaintiff, which has no relevance since the plaintiff is only an agreement holder and it is not even the plaintiff's case that the plaintiff's father had any right or interest in the subject property. Mr.H.Lakshmi Shankar, would therefore state that Ex.A1 sale agreement has not been proved in the first place and as an alternate agreement, he would contend that even assuming that none of the documents have been proved or established, even then, the plaintiff cannot be entitled to a decree for specific performance, since the plaintiff has not been ready and willing at all points of time, and he would therefore pray for the judgment of the trial being restored, setting aside the judgment and decree of the first appellate Court.

16. I have carefully considered the submissions advanced by Mr.H.Lakshmi Shankar, learned counsel for the appellant. I have also gone through the records filed by way of typed set of papers, including the pleadings, oral and documentary evidence as well as the judgment of the trial Court as well as the first appellate Court.

Discussion:

17. The plaintiff filed a suit in O.S.No.287 of 2011, challenging the sale deed in favour of the appellant and also sought for specific performance of an agreement of sale dated 13.05.1981. The ground on which the plaintiff sought to challenge the sale deed in favour of the appellant was only on the ground that he had already entered into an agreement of sale way back in the year 1997 and that he was put in possession of the suit property in part performance of the said agreement of sale.

18. On a perusal of Ex.A1- sale agreement, it is seen from the said agreement, though the said document which is at best a receipt acknowledging a sum of Rs.47,500/- and not an agreement of sale, it appears from the said documents that the father of the defendants, had agreed to convey the suit property in favour of the plaintiff, for a total sale consideration of Rs.47,500/-. Though the plaintiff claimed to have been put in possession in the sale agreement dated 13.05.1981, the document does not disclose the fact that the possession was handed over to the plaintiff. Strangely, the plaintiff himself relies on another agreement dated 07.03.2003 in Ex.A2, which had already been entered into after the demise of the original owner, viz., Alangarvelar. In the said document one of the sons of Alangarvelar, one Murugan alone has agreed to convey the suit property in favour of the plaintiff, on receipt of a sum of Rs.45,000/-, in full settlement of sale consideration. There is no mention of the balance of Rs.2,500/-, which is payable under Ex.A1 and more importantly, the said agreement does not even refer to Ex.A1-sale agreement between the father of the sixth defendant and the plaintiff. As rightly argued by Mr.H.Lakshmi Shankar, would contend that the other legal heirs of Alangarvelar, have not executed any agreement in the year 2003 as well.

19. In such circumstances, I do not see how the said document under Ex.A2 can be looked into for the purpose of accepting the case of the plaintiff.

20. The plaintiff, having noticed the sale made by defendants 1 to 6 in favour of the seventh defendant, issued a lawyer’s notice, on 28.04.2011 which was marked Ex.A6, and subsequently has proceeded to file the suit for declaration, injunction as well as specific performance. The father of the defendants 1 to 6, who had entered into an agreement of sale with the plaintiff vide Ex.A1 was admittedly not alive on the date of trial of the suit. Hence, the plaintiff has chosen to examine the scribe/witnesses to prove due execution of the agreement. Though as many as five witnesses were examined on his side, on a careful scrutiny of the evidence, I find that none of the witnesses have spoken in furtherance of the case of the plaintiff. For instance, P.W.3, who is the daughter of Alangaravelar, was examined in Court upon being summoned. P.W.3 has not even spoken about the signature of her father in Ex.A1. P.W.4 is the sons of Alangaravelar, one of the witnesses to the agreement, by name Nathan. In his cross examination, P.W.4 has stated that he was instructed by the plaintiff to appear and depose that when the document in Ex.A1 is shown to him he should state that his father's signature is found there. However, he would state that he does not know the contents of Ex.A1 agreement.

21. Therefore, from the available evidence, I am unable to hold that the plaintiff has successfully proved Ex.A1 sale agreement. If rely Ex.A1 sale agreement had been entered into between the father of the defendants 1 to 6 and the plaintiff, there would have been no necessity in the first place for executing Ex.A2 by one of the sons of Alangaravelar, by name Murugan. Further, under Ex.A2, the sale consideration is only Rs.45,000/- and there is no whisper about the sale consideration reflected in Ex.A1. The plaintiff claims that the agreement was necessary for the revenue records to reflect their name; however, I find nothing in the said agreement supporting such a claim.

22. With regard to possession as well, as already discussed, there is nothing to substantiate the alleged sale consideration of Rs.45,000/-. With regard to the amount of Rs.2,500/-, there is no specific reference is found in Exs.A1 and A2 as well.

23. On the contrary, P.W.1 (the plaintiff), in his cross examination, admits that until the demise of Alangaravelar, his vendor in Ex.A1, the said Alangaravelar, alone was in possession of the suit property cultivating the land still his demise in 1989. Therefore, the plaintiff has given up his case in cross examination by admitting that Alangaravelar, the plaintiff is in possession of the suit property under Ex.A1 – sale agreement. He also admits that EB service connection in the name of Alangaravelar was mutated in favour of the seventh defendant by the first defendant. All these facts clearly go to show that the appellant has been in peaceful possession of the suit property and the plaintiff’s claim appears to be improbable in the facts and circumstances of the case.

24. Even with regard to the receipts, the plaintiff relied on certain receipts allegedly issued by his father. There is no pleadings with regard to the same and as to how and as to why they were issued when plaintiff's father had no connection absolutely to the transaction. On the contrary, the appellant has produced documents, showing mutation of revenue records in his favour, subsequent to the registered sale deed dated 28.04.1981

Substantial question of Law Nos.1,2 &3:

25. The trial Court held that the plaintiff has not established readiness and willingness as required under Section 16 of the Specific Relief Act. In any event, the alleged agreements in favour of the plaintiff are dated 13.05.1981 and 07.02.2003, but, the suit has been filed only in the year 2011 and there is absolutely no evidence or even pleadings on the side of the plaintiff as to how and why there has been such an inordinate delay in approaching the Court seeking the equitable relief of specific performance. Thus, the trial Court considered this factor and dismissed the suit filed by the plaintiff. However, the first appellate Court decreed the suit, allowing the first appeal. However, the first appellate Court, on erroneous appreciation of facts and evidence, overturned the well-considered findings, rely on the evidence of P.W.4. The appellate Court has not even discussed the effect of Ex.A1 and subsequently, the agreement of sale involving one of the sons of the original owner, viz., Alangaravelar, without reference to the other five co-heirs to Ex.A1. The first appellate Court further overlooked the fact that the vendor, Alangaravelar, had passed away in 1989. The first appellate Court also failed to take note of the fact that the evidentiary value of the kist receipts relied upon by the plaintiff, which are in his father’s name and not the plaintiff’s, went unexplained. Further even assuming, the evidence of P.W.4 is held sufficient to establish the execution of Ex.A1 agreement, the first appellate Court did not address the question of the plaintiff’s readiness and willingness. Ex.A1 mentions a balance of Rs.2,500/-, but neither any time for payment is specified, nor has any document been filed in this regard. The plaintiff should at least have taken reasonable steps to have the sale deed executed in his name. Admittedly, till the lifetime of the vendor, Alangaravelar, up to 1989, and even thereafter, the plaintiff did not take any steps, until the purchase made by the appellant in 2011 and only after that the plaintiff has filed a suit for specific performance, after issuing notice on 27.05.2011. The plaintiff has approached the Court after almost 24 years from the date of Ex.A1. One another circumstances is the evidence of P.W.2-Murugan, who has entered into Ex.A2-Agreement with the plaintiff has been examined as P.W.2. He has stated in his proof affidavit that his father Alangaravelar was in physical possession of the suit property until his demise by digging a well and also installing pumpsets and doing agricultural operation and after his demise according to the second defendant, his siblings, who also become entitled to a share along with P.W.2 in O.S.No.343 of 2011 and P.W.4 in O.S.No.287 of 2011 were all residing at various places and hence, the plaintiff was given the task of managing and taking care of the suit property, and the plaintiff was also sharing the proceeds with the sixth defendant, viz., P.W.2. He has further stated that his siblings have given a power of attorney on 30.03.2011 on which basis alone, he entered into the agreement Ex.A2 with the plaintiff. No such document has been exhibited on the plaintiff. There is no evidence to support the case projected by P.W.2. It is thus clear that the plaintiff, in order to knock of the property has created the agreement as if the entire sale consideration has been paid, even though there is no proof of any such payment having been made. It is therefore clear P.W.2 has colluded with the plaintiff and acted adverse to the interest of the other co-owners. Yet, the first appellate Court, on an erroneous appreciation of the oral and documentary evidence, held that Ex.A1 had been proved and, therefore, that the plaintiff was entitled to relief, contrary to the strong evidence adduced by the appellant to disprove Ex.A1 agreement. In fact, I find that the sale deed in favour of the appellant was executed by none other than the sixth defendant, acting as vendor on behalf of the legal heirs.

26. P.W.2 in O.S.No.287 of 2011, who is a neighbour, viz., Shanmugasundaram, who was examined to support the case of the plaintiff admitted in cross examination that he is not aware of the plaintiff's right and that he is deposing evidence only on a hearsay basis.

27. In fact P.W.2 in O.S.No.343 of 2011, son of Alangaravelar, who executed the agreement in favour of the plaintiff vide Ex.A2 himself, who was examined as P.W.2 in O.S.No.343 of 2011 and he has disowned his signature in Ex.A2 as well as in Ex.A1.

28. On the contrary, he would state that the plaintiff was aware of the purchase of the property by the seventh defendant and the legal heirs of Alangaravelar had clearly informed the plaintiff that he need not take care the property, as it had already been sold to the seventh defendant

29. Therefore, none of the witnesses have spoken in favour of the plaintiff and there is nothing on record to establish the factum of plaintiff being put in possession of the suit property in part performance entitling him to protection.

30. For all the above reasons, the appellant is entitled to succeed. Substantial question of law No.1 answered in favour of the appellant.

31. The first appellate Court has also held that there is a bar of jurisdiction of civil Court to order recovery of possession, referring to Section 6 of the Tamil Nadu Cultivating Tenants Protection Act. No doubt, the said Act protects cultivating tenants and compliance with the due process, stipulated under the special enactment would have to be shown as required by the law. However, in the present case, the plaintiff claimed right under Ex.A1- sale agreement that he is a cultivating tenant.

32. In such circumstances, the first appellate Court clearly erred in holding that the suit is barred by the provisions of the present enactment. The substantial question of law No.2 is answered accordingly.

33. Similarly, the first appellate Court also erred in holding that the the plaintiff has not complied with Section 106 of the Transfer of Property Act, without noting that the plaintiff’s own case was that he was merely an agreement-holder and not a tenant. Therefore, substantial questions of law Nos.2 and 3 are answered in favour of the appellant.

Substantial questions of Law Nos. 4, 5 &6:

34. The first appellate Court erroneously shifted the burden of proof regarding the validity of the sale agreement onto the appellant and his predecessor-in-interest, in violation of Sections 101 and 102 of the Indian Evidence Act. The plaintiff relies upon Ex.A1 sale agreement and it is for the plaintiff to prove the truth and genuineness of the sale agreement and the burden cannot be shifted on the defendant. Similarly, by examining a son of one of the attesting witnesses as P.W.4, the plaintiff has only been able to prove the signature of the attestor alone. No doubt, the Act provides window for proof of document in cases, where the witnesses are not alive. However, it is not sufficient to merely prove the signature of the attesting witness alone, but, additionally, it is mandatory under Section 69 of the Indian Evidence Act to prove the signature of the executant. Though an attempt was made in this regard by examining the daughter of Alangaravel, the said exercise was also futile since the daughter had feigned ignorance of signature of her father, Alangaravel. Similarly even the son, who allegedly entered into Ex.A2- agreement has also disowned the signature of his father. Thus the document cannot be said to be proved in terms of Section 69 of the Indian Evidence Act. Therefore, the first appellate Court clearly fell in error in setting aside the well-reasoned judgment passed by the trial court.

35. For all the foregoing discussion, having already found that the plaintiff has not established readiness and willingness, mere averments in plaint would not suffice and entitle the plaintiff to the discretionary relief of specific performance. Substantial questions of law are all therefore answered in favour of the appellant.

36. In fine, these Second Appeals are allowed, by setting aside the judgments and decrees of the first appellate Court in A.S.Nos.88 and 96 of 2015 and the judgments and decrees of the trial Court in O.S.Nos.343 of 2011 and 287 of 2011 are restored. There shall be no order as to costs.