RAJAGOPAL Vs. KALIAPERUMAL

JUDGEMENT

(1.) THIS second appeal has arisen from the judgment and decree of the learned District Judge, Cuddalore made in A.S.No.55 of 1987, dated 15.12.1988 modifying the judgment and decree of the Sub Court, Villupuram in O.S.No.144 of 1985, dated 23.1.1987.

(2.) THE respondent/ plaintiff filed a suit for declaration of his title in respect of the suit properties along with delivery of possession and mesne profits with the following averments. THE suit properties originally belonged to the family of defendants herein. THE 1st defendant, who was managing the affairs of the family, on 26.6.1983 for himself and as guardian for his minor children along with the 2nd defendant sold the properties to plaintiff for a valid consideration of Rs.43,000 by means of registered deed. Out of the sale consideration, a sum of Rs.3,000 went in discharge of the mortgage executed by the defendants in favour of the plaintiff and the balance of Rs.40,000 would be paid before the Sub Registrar at the time of the registration of the document. THE defendants even before the document could be presented for registration wanted the plaintiff to pay a sum of Rs.25,000 as the defendants have purchased a lorry and amount would have to be paid to the owner of the lorry and they agreed that the plaintiff could pay the balance amount of Rs.15,000 at the time of registration of the sale deed. THE plaintiff had no other alternative but to pay the wanted amount of Rs.25,000 and he had paid the amount in the presence of one Balakrishnan, who is also a pangali of the defendants. THE plaintiff could not get an endorsement of payment of Rs.25,000 in the sale deed as the scribe was from the suit village and the plaintiff had no idea that the defendants would deny the said payment. THE defendants have been invited by the plaintiff thereafter to present the document for registration, but the defendants have been postponing the same with some ulterior motives. THE plaintiff has no other alternative but to present the document for compulsory registration before the Sub Registrar. THE defendants appeared before the Sub Registrar and admitted the execution of the document, but refused to put their signature in the endorsement of the registration. THE Sub Registrar registered the document on 21.10.1983. Ever since the date of the execution of the sale deed and from the date of the registration of the document, the plaintiff has been ready to tender the balance of consideration. As a matter of fact, the plaintiff had offered the defendants to receive the balance consideration after deducting the amount of Rs.25,000 which was paid on 21.7.1983, but the defendants did not care to receive the said amount. THE plaintiff was ready to tender the said amount whenever he is called upon to do so by this Honourable Court. THE defendants have been in possession of the properties even after the sale. Even though the recitals were to the effect that as if the possession of the properties have been handed over to the plaintiff the defendants continue to be in possession of the properties and as such they were bound to pay the mesne profits from the date of the sale deed at the rate of Rs.1,500 per annum. THE defendants issued a registered notice through their lawyer calling upon the plaintiff to pay the balance consideration of Rs.40,000 as if the defendants did not receive a sum of Rs.25,000 on 21.7.1983 and the plaintiff had sent a reply to the defendant's counsel thereby tendering the amount of Rs.15,000 being the balance consideration. THE defendants neither received the amount nor surrendered possession of the properties. THE plaintiff again issued a registered notice on 19.7.1985 calling upon the defendants to receive the balance amount and the surrender possession of the properties along with mesne profits. THE defendants have been proclaiming in the village that they will never surrender possession of the properties as the balance amount was not paid over to them and that the plaintiff himself had no title since the balance amount was not paid. THE defendants were bound to hand over possession of the properties having executed the sale deed and if at all they have any grievance over the non payment of the balance amount, they will have to seek appropriate remedy at the appropriate forum. Hence, the plaintiff had no other alternative, but to file a suit for declaration of his title and for recovery of possession along with mesne profits.

(3.) LEARNED counsel appearing for the appellants would urge that the judgment of the lower appellate Court was not only erroneous in law, but also perverse and unsustainable; that it has been found by the lower appellate Court that the respondent had no intention to pay the balance of sale consideration and that the plaintiff was not justified in withholding the amount and hence, the lower appellate Court should have non suited the respondents; that the respondent having rightly observed that the intention of the parties was of paramount importance and that the plaintiff had no intention to pay the balance amount, the lower appellate Court went wrong in allowing the appeal only partly; that there was consideration only for a sum of Rs.3,000 and having found so, the lower appellate Court was in error in granting declaration of the title to the plaintiff; that the plaintiff was not entitled to the relief of possession and mesne profits and hence, the suit should have been dismissed; that both the Courts were in wrong in holding that the sale deed was not materially altered; that the sale deed was executed on 6th and it was subsequently corrected as 26th to suit the convenience of the respondent for presenting for registration after the expiry of the period; that the respondent has not come forward with clean hands and that he was not entitled to any indulgence from the Court; that after having disbelieved the respondent's version that he had paid Rs.25,000 towards the sale consideration the lower Courts should have taken judicial note of the plaintiff's Court and non-suited him; that the intention of the parties was that the purchaser should pay the entire sale consideration and the vendor should execute the sale deed and hand over possession; that the respondent has not even whispered in his plaint about the payment of the balance of sale consideration; that the possession was not handed over to the respondent after the registration of the sale deed; that the lower Court erred in holding that the remedy open to the defendant was to file a suit for recovery of the amount; that there was no acceptable evidence on the side of the respondent to grant him a relief and thus, without proper consideration of the evidence oral and documentary, the trial Court has granted a decree, which was subsequently, confirmed by the lower appellate Court and under such circumstances, the judgment of the lower appellate Court has got to be set aside and the suit has got to be dismissed and the appeal has got to be allowed.