MUMTAJ Vs. K P RAMASAMY GOUNDER

JUDGEMENT

(1.) COMMON Judgment Both the appeals have been arising out of the judgment and decree dated 16.07.2007 passed in O.S.Nos.228 of 2004 and 531 of 2006 respectively, by the learned Additional District Judge, Fast Track Court No.1, Coimbatore.

(2.) THE averments made in the plaint in O.S.No.228 of 2004 are as follows:- THE suit property is originally belonging to one Ibrahim, who is none other than the husband of the first defendant and father of defendants 2 to 4. THE said Ibrahim got the property under a Settlement Deed executed by his mother Rokkiyabeevi on 17.06.1968 and he was in possession till his death. He died on 07.05.1998 leaving behind the defendants 1 to 4 as his sole heirs. On 11.05.2003, the plaintiff and defendants 1 to 4 have entered into a Sale Agreement and the sale price was fixed at Rs.10,00,000/-. On that date, a sum of Rs.1,00,000/- has been paid to the defendants 1 to 4 as an advance. It is agreed to pay a sum of Rs.3,00,000/- within a week. After, it is also agreed by both parties that the possession has been handed over to the plaintiff on receipt of Rs.3,00,000/-. Six months time has been granted for taking the balance sale consideration and got the Sale Deed to be executed. On 14.05.2003, the plaintiff has paid a sum of Rs.3,00,000/- to defendants 1 to 4 and obtained the possession of the property. THE property in possession was leased out to one Kanjimalai and Selvaraj for seven years, and a sum of Rs.25,000/- was fixed as an lease amount for one year. On 20.08.2001, a Lease Deed was also registered about the same. THE said Kanjimalai and Selvaraj have filed a Suit against the defendants 1 to 3 for permanent injunction. Hence, a panchayat has been convened in the presence of Udumalpet Chairman Mr.T.T.Gnana Murugan and Dhali Village Panchayat President Mr.Kumaravel. In that, it was agreed that they will release the lease hold right on receipt of Rs.3,00,000/-. In pursuance of that, Rs.3,00,000/- has been paid by the plaintiff and the defendants 1 to 3 have agreed to take it as an advance and got the Lease Release Deed in favour of defendants 1 to 3. THE lessor has removed the electrical starter wires and Ose pipes. So, the plaintiff, after taking possession of the property, has purchased new electrical starter wires and other ose pipes, out of his own money. THE plaintiff has also renovated the well situated in the suit property. THE plaintiff has spent a sum of Rs.1,50,000/- for reclaiming the 8 acres of suit property. So, that amount of Rs.1,50,000/- ought to have been repaid by the defendants 1 to 4. After 1 " of months, the defendants 1 to 4 have received a sum of Rs.1,25,000/- on 29.06.2003 and they have also made an endorsement to that effect. So far, as on 29.06.2003, defendants 1 to 4 have received a sum of Rs.5,25,000/-. Subsequently, they have received a sum of Rs.15,000/- for medical expenses. In total, the plaintiff has paid a sum of Rs.5,40,000/- to the defendants 1 to 4. THE balance is only Rs.4,60,000/-. (ii) THE plaintiff was and is always ready and willing to perform his part of contract. When the plaintiff demanded the Encumbrance Certificate, the defendants 1 to 4 have not given the same. THErefore, the plaintiff has filed a petition before the Komangalam Sub Registrar's Office for getting the Encumbrance Certificate and on 22.08.2003, he has received the same. THEn only the plaintiff came to know that the property was mortgaged to Udumalpet Co-operative Land Development Bank for Rs.50,900/- and also the defendants 1 to 4 have entered into a Sale Agreement with Mayilathal, who is the fifth defendant. When the plaintiff has made an enquiry about the Sale Agreement with Mayilathal, the defendants 1 to 4 said that they received a sum of Rs.1,00,000/- as a loan from the said Mayilathal. That Sale Agreement has been executed only for a security for the amount lent. Since the defendants are taking steps to alienate the property, the plaintiff had issued a notice through his counsel on 27.08.2003 to the defendants 1 to 5. Even though defendants 1, 3, 4 and 5 have received the notice, the fourth defendant alone has issued a reply notice with false allegations. On 08.09.2003, the plaintiff has sent another notice. But the defendants 1 to 3 have not received the same. THE fourth defendant alone has received the notice. THE plaintiff was present in the Registration Office for getting Sale Deed from the defendants, who never turned out. THE plaintiff was always ready and willing to perform his part of contract. Now, the defendants 1 to 4 along with fifth defendant have taking steps to eject the plaintiff from the suit property. Hence, the plaintiff has constrained to file a suit for specific performance and also alternatively for refund of advance amount paid and prayed for a decree.

(3.) THE averments made in the plaint in O.S.No.531 of 2006 are as follows:- THE suit property was owned by one Ibrahim, who got the same by way of settlement deed dated 17.06.1968 executed by his mother. From the date of settlement deed till his death he was in possession and enjoyment of the property. In the year 1998, he died intestate leaving behind the plaintiffs as his sole heirs i.e., the first plaintiff is his wife and the plaintiffs 2 and 3 are his children. THE plaintiffs 1 to 3 are leased out the property to one Kanjimalai and Selvaraj on 20.08.2001, for seven years under a Registered Lease Deed. So, the lessees are in possession and enjoyment of the same. THEre was a dispute between the Tenants and the plaintiffs. So, the Tenants have filed a suit in O.S.No.340 of 2001 for bare injunction in respect of the suit. A panchayat was convened on 01.04.2003 in the presence of plaintiff K.P.Ramasamy Gounder and his Sammanthy R.Shanmugavel along with Udumalpet Union Chairman Gnanamurugan and Dhali Grama Panchayat President Kumaravel. In the Panchayat, it was decided that the plaintiffs ought to have paid a sum of Rs.1,50,000/- each to the tenants and after receipt of the amount, the tenants must hand over the possession to the plaintiffs. In pursuance of that, the plaintiffs entered into an agreement of sale with one Mayilathal on 03.04.2003 for Rs.2,00,000/- and received a sum of Rs.1,00,000/- on the same day. THE balance sum has been received in the month of June and paid a sum of Rs.3,00,000/- to both Kanjimalai and Selvaraj and obtained a Registered Lease of Surrender Deed and obtained the possession. Now, the suit property is in possession and enjoyment of the plaintiffs. THE value is more than Rs.20,00,000/-. THE plaintiffs have refused to give the suit property to the defendant. THE first plaintiff was a widow. On 02.04.2001, the second plaintiff met with an accident and therefore, he was bedridden. Taking note of their pitiable condition, the defendant, with the help of his close relatives of Gnanamurugan, Kumaravel and Arumugam, concocted a fabricated Sale Agreement, dated 11.05.2003 as if the sale price has been fixed at Rs.10,00,000/-; on the same day, a sum of Rs.1,00,000/- has been paid as an advance; after one week, a sum of Rs.3,00,000/- alleged to have been paid and later a sum of Rs.1,25,000/- has been paid by the defendant to the plaintiffs. THEre is no such sale agreement. THE plaintiffs have never received any amount from the defendant. THE defendant has filed a suit in O.S.No.229 of 2003 for specific performance. On 10.12.2003, the defendant, along with his relatives, attempted to interfere with the plaintiffs' peaceful possession and enjoyment. Hence, the plaintiffs are constrained to file a suit for baree injunction restraining the defendant from interfering with their possession.