CHIDAMBARA UDAYAR Vs. MANICKA UDAYAR

JUDGEMENT

(1.) THESE second appeals have been preferred against the decree and Judgment dated 07.02.1996, in A.S.No.117 & 116 of 1992 respectively, passed by the Subordinate Judge, Ariyalur. The plaintiff-Chidambara Udayar in O.S.No.158/1988 is the appellant before this Court. The Defendant-Chidamabara Udayar in O.S.No.43/1986 is the appellant herein. O.S.No.158/1988 was filed by one Chidambara Udayar for specific performance of a contract under Ex.B.3-sale agreement. O.S.No.43/1986 was filed by Manickkam Udayar for an order of permanent injunction restraining the defendant from taking water from a deep borewell in S.No.428/1 to the plaint schedule S.F.No.411/1 property.

(2.) THE short facts in the plaint in O.S.No.158/1988 are as follows:-

(3.) THE Points:- 5(a) THE sum and substance of these appeals revolving around the validity and genuineness of Ex.B.3-agreement said to have been entered into between Chidambara Udayar and one Manikkam Udayar. On the basis of Ex.B.3 Chidamara Udayar has filed a suit in O.S.No.158/1988 for specific performance of the contract. Even though the plaintiff in O.S.No.158/1988 has examined 4 witnesses to prove Ex.B.3 (before the trial Court joint trial was conducted in O.S.No.158/1988 and O.S.No.43/1986 and the evidence was recorded in O.S.No.43/1986), both the Courts below have discarded Ex.B.3-document on the ground that it is a concocted document created for the purpose of the case subsequently to the filing of O.S.No.43/1986. THE extraneous circumstance which glares at Ex.B.3-document is that it was not shown to P.W.1 Manickam Udayar while he was cross-examined on 25.11.1987. According to Chidambara Udayar, the plaintiff in O.S.No.158/1988, Ex.B.3 was entered into between him and Manikkam Udayar, the defendant in O.S.No.158/1988 who is the plaintiff in O.S.No.43/1986 on 21.11.1987. According to Chidambara Udayar Ex.B.3 agreement was entered into between the parties with an oral agreement that after execution of Ex.B.3 the suit filed by Manikkam Udayar in O.S.No.43/1986 is to be withdrawn. If it is so on the date of chief-examination of P.W.1, i.e., on 24.11.1987 itself, Chidambara Udayar was in possession of Ex.B.3-document because it was executed, according to Chidambara Udayar, on 21.11.1987 itself. Only on 25.11.1987 when Manikkam Udayar was recalled after cross-examination on 24.11.1987 there was a suggestion put to him to the effect that there was an agreement entered into between Chidambara Udayar and Manikkam Udayar on 21.11.1987, which was stealthily denied by Manikkam Udayar. 5(b) THE witnesses to Ex.B.3 and the scribe were examined as D.W.2 & 3 (witnesses to Ex.B.3) and D.W.4 (scribe to Ex.B.3). D.W.4-Rahdapillai who is the scribe of Ex.B.3 was also the scribe of Ex.A.1 sale deed dated 1.6.1976 executed by Chidambara Udayar in favour of Manikkam Udayar. He would depose in cross-examination that he went to the Sub-Registrar's Office Ariyalur on 21.11.1987 in connection with some other work and at that time both the plaintiff and the defendant were present and at their request he had written the recitals in Ex.B.3 as a scribe. It is brought to the notice of this Court that 21.11.1987 happens to be a holiday (Saturday). Further if there is an understanding between the parties to execute a reconveyance that would have been reflected in Ex.A.1 itself. But there is no recital in Ex.A.1-sale deed to the effect that at a later stage the parties have agreed to reconvey the same. 5(c) Both D.W.2 and D.W.3 would depose that there was two copies prepared for Ex.B.3-document. If it is so, Manikkam Udayar P.W.1 in O.S.No.43/1986 would have possessed with one of the copies of Ex.B.3. But there is no suggestion put to Manikkam Udayar (P.W.1) to the effect that he was also supplied with a copy of Ex.B.3 even on the date of execution of the same. Ex.B.3 was not at all shown to P.W.1-Manikkam Udayar at the time of his deposition. This definitely will have an adverse impact on Chidambara Udayar, plaintiff in O.S.No.158/1988. 5(d) Yet another pertinent point which glares at the case of the plaintiff in O.S.No.158/1988 Chidambara Udayar, is that being a plaintiff to file a suit for specific performance of contract, it is the bounden duty of the plaintiff to prove that he was always ready and willing to perform his part of the contract. But to our surprise Chidambara Udayar, the plaintiff in O.S.No.158/1988 has not even sent a notice to Manikkam Udayar, the defendant in O.S.No.158/1988 informing him that he is always ready and willing to perform his part of the contract and also demanding him to execute a reconveyance deed as per the terms of Ex.B.3. 5(e) Further for comparison of the signature as provided under Section 73 of the Indian Evidence Act, the Court is competent to compare the disputed signature of a person with that of an admitted signature and then to come the conclusion whether the disputed signature is genuine or not. A perusal of the judgment of the trial Court will go to show that at the bottom of para 16 the learned trial Judge has compared the disputed signature of Manikkam Udayar in Ex.B.3 with that of the admitted signature of Manikkam Udayar in plaint in O.S.No.43/1986 and also his signature in his deposition and Vakalat and has come to a definite conclusion that the disputed signature in Ex.B.3 of Manikkam Udayar is not that of the admitted signature of Manikkam Udayar found in the plaint, Vakalat and deposition. So the contention of the learned counsel for the appellant that the disputed signature in Ex.B.3 was not sent to an expert cannot hold any water because the court itself is competent to compare the disputed signature with the admitted signature as contemplated under Section 73 of the Indian Evidence Act to arrive at a conclusion. If, dispute is regarding the thumb impression of a person then definitely an expert's opinion is necessary to arrive at a conclusion whether the thumb impression in the disputed document and the admitted thumb impression belonged to one and the same person. So under such circumstance, if Ex.B.3 goes the plaintiff in O.S.No.158/1988 viz. Chidambara Udayar has no case for specific performance of the contract. Under Ex.A.1-sale deed Manikkam Udayar as plaintiff has filed the suit for injunction. Even under Ex.A.1 the possession was handed over to Manikkam Udayar the plaintiff in O.S.No.43/1986 on the date of execution of Ex.A.1-sale deed in respect of the suit property. THEre is absolutely no evidence contra on the side of the Chidambara Udayar, defendant in O.S.No.43./1986, to show that he is in possession of the suit property. Under such circumstance, both the court below have come to the correct conclusion that plaintiff in O.S.No.43/1986 is entitled to an order of permanent injunction as prayed for and the plaintiff in O.S.No.158/1988 is not entitled to the relief of specific performance of the contract on the basis of Ex.B.3. I do not find any reason to interfere with the well considered judgment of the Courts below, which is concurrent in nature, which do not warrant any interference from this Court. Points are answered accordingly.