- (1.) THIS Second Appeal is directed against the judgment of the learned IX Additional Judge, City Civil Court, Madras, in A.S. No. 435 of 1984 in confirming the judgment of the learned XVI Assistant Judge, City Civil Court, Madras, in O.S. No. 8082 of 1980. The defendants in the suit are the appellants in the above Second Appeal.
(2.) THE suit was filed for directing the defendants to deliver possession of the two rooms on the northern side situate on the eastern row of Valley Hussain Street Old No. 24, New No. 49/3, Strahans Road, Madras-12 and for restraining the defendants by a permanent injunction interfering with in any manner with the structure of the suit property. According to the plaintiffs, the first defendant's husband namely, the second defendant was once a tenant under the first plaintiff's mother and the second plaintiff wife late Kousalya Bai in respect of the two rooms on the northern side in the eastern row of the Wali Hussain Street. During the life time of the said Kousalya, the first defendant appears to have entered into an agreement for purchasing the said two rooms. After her death, in 6.7.1970, in O.S. No. 3675 of 1971 on the file of the City Civil Court, Madras, the first defendant filed a suit against the plaintiffs seeking performance of the contract of sale and for other reliefs. Subsequently, by virtue of a consent decree made between the parties, it was provided that on depositing a sum of Rs. 3,250/- on or before 31.3.. 1975, the plaintiffs herein shall execute a sale deed in respect of the suit property in favour of the defendants herein. The plaintiffs further contended that the first defendant failed and neglected to pay the said amount within the stipulated period and therefore, ceased to have any right to enforce the decree for specific performance of the contract of sale. The first defendant however, is continuing possession of the property unauthorisedly and her possession amounted to a trespass. She had no legal right to continue in possession. The defendants also lost their right to obtain sale as a result of not complying with the terms of the decree and the said second defendant had long ceased to be a tenant and his continuance amounted to a trespass. The plaintiffs further contended that they are entitled to recover possession of two rooms mentioned in the suit schedule which was under the possession of the defendants. Therefore, by a notice dated 21.8.1977 issued by the plaintiffs' counsel, the first defendant was required to vacate the premises. But she failed to do so. On the contrary, she has encroached upon the other portions and had put up construction unauthorisedly in collusion with the second defendant. The defendants have therefore, no right, title or interest over the property or to put up any superstructures thereon. The plaintiffs therefore, were filing the present suit for ejectment of the defendants from suit premises and also for an injunction to restrain them from altering the structure of the property or to make any additions thereon. In the written statement filed by the defendants, it was contended that they were the tenants in respect of the property under one M. Sheriff and they were paying a monthly rent of Rs. 10/- for each room for two rooms to him. The said Sheriff left for Pakistan and the defendants were in occupation of the suit premises for more than 20 years in their own rights. The first plaintiff's mother seems to have obtained a sale deed in respect of the suit premises and had become the owner of the same. The mother of the first plaintiff and the wife of the second defendant entered into an agreement of sale to sell the premises in favour of the defendants. Even in the Rent Control proceedings initiated by the plaintiffs, the plaintiffs had lost their case. Pursuant to the agreement of sale, a suit for specific performance had been filed in and by which the plaintiffs were directed to register the sale deed in favour of the defendants. There was a compromise decree whereunder the defendants were directed to pay a sum of Rs. 3,250/- for execution of the sale deed in favour of the defendants. Though the defendants had paid the said amount to their previous advocate on record, he had not paid the same as a result of which the sale deed could not be executed. The defendants were not in a position to receive all the connected papers from the previous advocate and as soon as the same was received they will be filing an additional written statement. It was further stated that they spent enormous amounts towards improvement of the property. At no point of time, the defendants had paid by way of rent to the plaintiffs which will show that the plaintiffs have no manner of right, title or interest over the suit property. The defendants would further deny that they have failed and neglected to pay a sum of Rs. 3,250/- within the stipulated period. It was only due to the mistake of the counsel on record, the defendants were made to suffer. The allegation that the defendants were in occupation of the property unauthorisedly was also denied. It was further contended that they were in possession and enjoyment of the suit property in their own rights and that the suit was barred by limitation. In the additional written statement also, the defendants had contended that they had spent considerable amount over the improvement of the premises. It was further contended that the defendants attempted several times to pay the balance amount before the expiry of the due date. But the plaintiffs had refused to receive and therefore, there was no default on their part. The consent decree in O.S. No. 3675 of 1971 provided that on depositing a sum of Rs. 3,250/- to the credit of the suit, the defendants shall execute the sale deed. Therefore, the execution of the sale deed was dependent upon depositing a sum of Rs. 3,250/-. But there was no penal clause and the consent decree did not mention anything about what was to happen in the event of failure on their part to deposit the amount. Therefore, the defendants were entitled to continue in possession of the property and to seek execution of the sale deed and the plaintiffs were entitled to collect the balance amount from the defendants. It was not stated that failure to deposit the amount within the stipulated time will result in the forfeiture of the defendants' claim over the suit property. It was further contended that they were entitled to protection under Section 53-A of the Transfer of Property Act and that the plaintiffs can claim only the balance amount from the defendants and were not entitled to seek delivery of possession of the property. It was further contended that the consent decree shall be only a contract for sale. Further, the plaintiffs owed a sum of Rs. 1,500/- to the first defendant which was due to be paid after setting of the amount due to him and therefore, the contention that Rs. 3,250/- was remaining unpaid was not correct. As per the terms of the decree the defendants should have deposited a sum of Rs. 3,250/- on or before 31.3.1975. As on 31.3.1975, a sum of Rs. 1,500/- was due to the defendants and therefore, the plaintiffs had a right to collect only the balance amount of Rs. 1,750/-. The defendants have therefore, all manner of rights to continue in possession of the property as their own and to compel the plaintiffs to register the sale of the property. It was further contended that at the instance of the well wishers, it was mutually agreed that the plaintiffs should execute the sale deed after the defendants paying the balance due to the plaintiffs. On a consideration of the said pleadings and the evidence both oral and documentary, the trial Court held that there was absolutely no justification for the defendants not to have paid the sale* consideration within the stipulated date and the said failure to do so was deliberate and the reasons given for the failure to pay the same by throwing the blame on their counsel was also not genuine and was not also true. It was also held that they were also not entitled to the benefits of Section 53-A of the Transfer of Property Act, nor was the suit barred by limitation. With the result, the suit was decreed as prayed for and a sum of Rs. 2,000/- was fixed as compensation payable to the plaintiffs. On appeal, the findings of the trial Court were confirmed and the appeal filed by the defendants was dismissed by the Appellate Court. Hence, the present Second Appeal by the defendants. The findings of the Courts below relating to the failure on the part of the defendants to comply with the terms of the compromise decree are pure findings of fact arrived at by both the Courts concurrently, after a detailed analysis of the evidence. Learned counsel for the appellants is unable to show as to how the said findings would be vitiated under Section 100 C.P.C. He is unable to point out any feature which could either be held as perverse or based on no evidence. In fact, a detailed analysis of the evidence justifies the pointed remarks made by the Courts below that the attempt on the part of the defendants to throw the blame on their counsel was not genuine. The said findings relating to the failure on the part of the defendants to comply with the terms of the compromise decree have to be confirmed.
(3.) LEARNED counsel for the appellants has therefore, rightly restricted his submissions to two legal issues namely, as to (1) whether the suit was not maintainable in view of Section 28(4) of the Specific Relief Act, 1963 (hereinafter referred to as "the Act") and (2) whether the defendants were entitled to invoke protection under Section 53-A of the T.P. Act. The appellants have also filed C.M.P. No. 13025 of 1999 under Order 41, Rule 27 C.P.C. to admit the sale agreement dated 4.7.1970 as an additional evidence in the Second Appeal. According to the appellants, the agreement had been filed in the earlier suit in O.S. No. 3675 of 1971 as Ex.A.3 and due to oversight the agreement was not marked in the present suit. This petition is however, objected to by the respondent herein and a detailed counter affidavit has been filed by contending that the ingredients of Order 41 Rule 27 have not been strictly complied with. I have considered the reasons contained in the affidavit filed in support of C.M.P. No. 13025 of 1999 and I find there can be no serious objection to entertain the said document to be taken in the evidence having regard to the fact that the existence of the said agreement has not been seriously disputed and that the same was also subject matter of an earlier suit between the same parties. Hence, C.M.P. No. 13025 of 1999 is allowed. ;