R. USHA Vs. A.C. SARANGAN AND ORS.

JUDGEMENT

(1.) The appellant being plaintiff, has brought this second appeal challenging the concurrent findings of both the Courts below. For convenience, the parties will be hereinafter referred to as ''the plaintiff'', the ''first defendant'' and the ''second defendant'' in this judgment.

(2.) The facts in brief leading to the filing of the second appeal are as follows. The first defendant was allotted Shop No.B-35, Type C-1, Ground Floor, Koyambedu Wholesale Flower Market Complex, Chennai by the Chennai Metropolitan Development Authority, the second defendant on 10.6.93. As the plaintiff was also a wholesale flower vendor, in the year 1994, the first defendant joined the plaintiff as a partner in her business and agreed to carry on the business from his allotted shop at Shop No.B-35, Type C-1, Koyambedu Wholesale Flower Market Complex. The first defendant also informed the plaintiff that he was willing to sell the shop to her if she was prepared to pay all the instalment dues. In view of that, the plaintiff paid the initial instalment amounts for the suit shop to the second defendant. Thereafter, the first defendant resigned from partnership business and asked the plaintiff to carry on the business from the suit shop. However, the second defendant informed the plaintiff that the sale deed would be given only to the allottee. Therefore, the plaintiff did not pay the instalment dues for the suit shop to the second defendant and the first defendant also did not pay the instalment dues. Due to the non-payment of instalment dues, the allotment made in favour of the first defendant was cancelled by the second defendant before 13.5.94. Upon enquiry by the plaintiff and the first defendant with the second defendant, on their advice, the first defendant submitted a letter dated 2.8.96 intimating the second defendant that he had already sold the shop to the plaintiff, who had paid all the dues and who would pay all the further dues, with a request to issue the sale deed for the suit shop in favour of the plaintiff. In the meanwhile, the first defendant executed an agreement of sale, Ex.A7 selling the suit shop to the plaintiff and also a deed of power of attorney, Ex.A3 in favour of the plaintiff's husband, for lawfully transferring the title of the shop in the name of the plaintiff, after receiving Rs.60,000/- as the sale consideration. On receipt of the letter of the first defendant dated 2.8.96, the second defendant issued a reply dated 10.8.96 intimating the first defendant that his request for reallotment in favour of the plaintiff would be considered if a payment of Rs.1,00,000/- was made. In view of that, the plaintiff paid the said sum as well and the second defendant allowed the plaintiff to occupy the suit shop and to carry on her business by issuing the licence, registration certificate etc. Since then the plaintiff has been making payments of all the instalment dues for the suit shop and the second defendant also received all the instalment and other dues from the plaintiff and that the second defendant also addressed the plaintiff as the allottee of the suit shop in the subsequent demand notices.

(3.) Nonetheless, in the year 2003, when the plaintiff went to pay the final instalment for the suit shop, the first defendant, with an intention to cheat, had made objections with the second defendant for issuing the sale deed to the plaintiff. The first defendant also unlawfully and unilaterally cancelled the irrevocable power given in favour of the plaintiff's husband that was executed by him for executing the sale deed for the shop in favour of the plaintiff. Although the second defendant assured and reallotted the suit shop in favour of the plaintiff, certain officers of the second defendant exclusively suppressed the cancellation of the allotment order made against the first defendant all through the suit. The second defendant also did not explain as to why they issued the licence and registration certificate in the name of the plaintiff and equally failed to explain as to why they addressed the plaintiff as the allottee in their demand notices. In view of the dispute, when the plaintiff filed the suit for permanent injunction restraining the second defendant and their agents from issuing the sale deed in favour of the first defendant and also restraining the first defendant from in any way disturbing the peaceful possession, occupancy and enjoyment of the suit shop, without considering the evidence produced by the plaintiff, the trial Court dismissed the suit holding that the plaintiff has failed to prove her possession of the suit shop among other things.