JUDGMENT
AR. Ramalingam, J.
1. Aggrieved against the concurrent judgments of both the courts below viz., the Additional District Munsif Salem in O.S.No.1230 of 1986 and the District Judge Salem in A.S.No.85 of 1993, the second defendant viz., one Nalkovai has filed this second appeal.
2. The case of the plaintiff Soundaram before the Additional District Munsif, Salem can be stated, in short, as follows. The suit property was originally owned by one Chinnusamy son of Rocky Moopan. The first defendant viz., Vijayakumar purchased the same under a registered sale deed dated 6.12.1979 as evidenced by Ex.A5. The first defendant entered into an agreement of sale with the plaintiff on 6.8.1986 for Rs.5800/= and received Rs.2500/= as advance from the plaintiff as evidenced by Ex.A1. The agreement was that the sale deed should be executed within one month. Possession of the property was handed over to the plaintiff. Document of title also was handed over alongwith Ex.A1 by the first defendant to the plaintiff marked as Ex.A5. The plaintiff was always ready and willing to perform his part of the contract and complete the sale transaction. Whileso, defendants 1 and 2 with ulterior motive and conspiracy appear to have created an agreement of sale ante dated as 30.3.1986 and sale deed dated 8.8.1986 in and by which both the defendants have determined to cheat and defeat the plaintiff’s legal right upon the suit property. Inspite of the notice issued by the plaintiff to the defendants, they have not only not complied with the agreement of sale but also given reply notice with untenable and false allegations. Therefore, the plaintiff happened to file the suit for specific performance.
3. The suit has been resisted by both the defendants by filing separate written statements with more or less similar allegations to the following effect. The first defendant never executed any agreement of sale in favour of the plaintiff for Rs.5800/= and he never received an advance of Rs.2500/= for the same. It is true that the first defendant purchased the suit property in the year 1979 from Chinnusamy, the husband of the second defendant and at that time there was also an understanding between them that if in any case the first defendant happens to sell the suit property, it should be sold only to the said Chinnusamy. In the year 1986, the first defendant expressed his idea of selling the suit property to the second defendant and her husband and thereupon both of them agreed to purchase the suit property and in consequence, the agreement of sale was entered between them on 30.3.1986 for Rs.7000/= and the first defendant received Rs.1000/= as advance as evidenced by Ex.B1. Following that agreement, the first defendant executed a registered sale deed in respect of the suit property in favour of the second defendant on 8.8.1986 as evidenced by Ex.B2. In the meanwhile, with the sole intention of giving troubles to the second defendant and getting the suit property somehow or other, the plaintiff and his persons approached the first defendant on 10.8.1986 and obtained his signature in an agreement of sale ante dated as 6.8.1986 under coercion. Out of fear only the first defendant put his signature upon Ex.A1 the alleged ante dated agreement of sale and at that time, the plaintiff and his persons also obtained the prior document of title of the year 1979 marked as Ex.A5 from the plaintiff highhandedly. The second defendant is not at all concerned with the alleged agreement dated 6.8.1986 between the plaintiff and the first defendant and that there is no conspiracy between the second defendant and the first defendant and it is not correct to say that the agreement of sale dated 30.3.1986 and the consequent sale deed dated 8.8.1986 in favour of the second defendant is a created and fabricated one with the knowledge of the agreement between the plaintiff and the first defendant. The second defendant is a bona fide purchaser for value from the first defendant. Probably, the plaintiff and the first defendant could have colluded to create the agreement of sale dated 6.8.1986 with ulterior motive of getting unjust benefits and thereby the suit on the whole is liable to be dismissed.
4. On trial and after examination of three witnesses for the plaintiff including the plaintiff as PW1 and marking of Exs.A1 to A7 and examination of four witnesses including the first defendant as DW1 and marking of Exs.B1 and B2, the Trial Court viz., the Additional District Munsif, Salem has found and come to the conclusion that the agreement of sale marked as E.A1 between the plaintiff and the first defendant is a true and valid one and the agreement of sale between the first defendant and second defendant marked as Ex.B1 dated 30.3.1986 is an ante dated and created one and the consequent sale deed executed by the first defendant in favour of the second defendant on 8.8.1986 marked as Ex.B2 cannot be a true and valid document and instead it should be one with the intention of defeating the legal right of the plaintiff for getting the sale deed from the first defendant on the strength of Ex.A1 agreement and thereby the second defendant cannot be a bona fide purchaser without notice of the earlier agreement and consequently, decreed the suit for specific performance.
5. On appeal by the second defendant before the District Judge, Salem, the District Judge also, after elaborate and detailed discussion and appreciation of both oral and documentary evidence, has found and come to the conclusion that Ex.A1 agreement of sale in favour of the plaintiff alone is true and valid and the other agreement of sale and consequent sale deed marked as Exs.B1 and B2 between the first defendant and second defendant are not true and valid and they should have been created with the intention of defeating the rights of the plaintiff and consequently, dismissed the appeal by confirming the judgment and decree of the Trial Court.
6. I have gone through the entire oral and documentary evidence available in this case in the light of the judgments of both the courts below and the arguments of the counsels appearing for either side in detail. The fact remains that the first defendant purchased the suit property from Chinnusamy in the year 1979 as evidenced by Ex.A5. It is also an admitted fact that the first defendant put his signature upon Ex.A1 viz., the agreement of sale and however, it is denied that the first defendant never agreed to sell the suit property for Rs.5800/= and received an advance of Rs.2500/= from the plaintiff. The explanation is otherwise given by the first defendant in the written statement as if his signature was obtained by the plaintiff and his persons under threat only on 10.8.1986 by putting ante date as 6.8.1986 and thereby that agreement of sale is not valid. It is also the further stand of the first defendant that he had already entered into the agreement of sale on 30.3.1986 itself under Ex.B2 and executed the consequent sale deed under Ex.B1 dated 8.8.1986 in favour of the second defendant. However, in Ex.A6 reply notice issued by the first defendant on 6.9.1986, there is no specific indication or recital as if his signature was obtained in Ex.A1 only on 10.8.1986 by the plaintiff and his persons under threat in an ante dated agreement of sale. Likewise, the first defendant is not in a position to clarify convincingly as to how the prior document of title marked as Ex.A5 came to the custody of the plaintiff and as to how the plaintiff was able to produce the said document of title marked as Ex.A5 at the time of trial. The first defendant has tried to give a novel way of explanation as if the said document of title also was obtained by the plaintiff and his persons under threat at the time of getting his signature in Ex.A1. It is to be pointed out in this context that no reasonable or prudent man like the first defendant would have kept quiet without taking any steps by way of lodging police complaint or convening some panchayat in the village or issuing notice about the manner in which the signature was obtained in an ante dated agreement of sale along with the original document of title.
7. On the other hand, the evidence of the first defendant as DW1 goes against the reality that is revealed from Ex.B1. In other words, the first defendant as well as DW2 has spoken to the effect that Ex.B1 was executed on 30.3.1986 and the stamp paper was purchased from a stamp vendor at Collector Office, Salem on 27.3.1986 and the stamp paper stands in the name of his wife Kandammal, but, Ex.B1 bears the seal of a stamp vendor as Santhanam, Rasappa Chetty Street, Chennai and it bears the name of the second defendant Nalkovai and it has been purchased on 27.3.1986. Therefore, this material contradiction between the evidence of D.Ws.1 and 2 and that of Ex.B2 clearly goes to show that Ex.B1 itself has been created by utilising ante dated stamp paper purchased from Madras with ulterior motive of defeating the rights of the plaintiff. If really Ex.A1 agreement of sale was signed by the first defendant under threat as spoken by DW1, there is no necessity or occasion for his wife viz., Kandammal also to put her signature as first witness for the execution of the agreement of sale. It is also not the specific stand of the first defendant as if his wife Kandammal was also threatened to put her signature as attestor. There is no reason as to why the said Kandammal, wife of the first defendant was not examined in support of her husband’s version as if her husband put his signature in Ex.A1 under threat, etc. Moreover, there is no reason as to why the agreement of sale marked as Ex.B1 should be prepared at Salem on a Sunday instead of preparing it at Sub Registrar’s Office premises available at Steel Plant, Salem itself which is situate within 100 feet from the house of the second defendant. Likewise, there is no reason as to why the sale deed marked as Ex.B2 should be registered at Salem District Registrar’s Office instead of registering it at the jurisdictional Sub Registrar’s Office at Dharamangalam itself. Therefore, both Trial Court and the first appellate court, after elaborate and detailed discussion and appreciation of the available evidence only, have found and come to the conclusion that the plaintiff is entitled to have the decree for specific performance and the agreement of sale and consequent sale deed marked as Exs.B1 and B2 cannot be true and genuine and instead they should be created for defeating the rights of the plaintiff and then only decreed the suit for specific performance. Consequently, I am of the considered view that there is no error in appreciation of the evidence or any failure to consider the legal aspect in a way inviting this court to interfere with the concurrent judgments of both the courts below.
8. Accordingly, the second appeal has no merits either on facts or under law and the same deserves to be dismissed. Consequently, the second appeal fails and the same is dismissed with costs. The connected C.M.P is also dismissed.
