R. Mahadevan, J.@mdashThis Letters Patent Appeal has been filed against the judgment and decree dated 10.08.1998 in A.S. No 39 of 1984.
2. The facts which are necessary for the disposal of this appeal are as follows:-
The suit in O.S No 892 of 1980 was filed by the appellant for specific performance against the defendants 1 to 5. The 6th to 8th defendants are the creditors of the defendants 1 to 4. The plaintiff filed the above suit stating that the 5th defendant in collusion with the other defendants created an ante-dated sale agreement dated 10.09.1980 to defeat the interest of the plaintiff. The registered agreement of the plaintiff is dated 24.11.1980 and the unregistered agreement of the 5th defendant is dated 10.09.1980. The 5th defendant claimed to have entered into an agreement for sale with the defendants 1 to 4 prior to the agreement by the defendants 1 to 4 with the plaintiff. The 5th defendant also filed a suit in O.S No 23 of 1981 against the defendants 1 to 4 for specific performance to execute a sale deed in his favour, which was decreed. Based on the decree, sale deed was executed and possession of the suit property was also handed over to the 5th defendant. The suit filed by the plaintiff herein was also decreed by the Trial Court holding that the agreement between the defendants 1 to 4 and the plaintiff to be genuine and the agreement between the defendants 1 to 4 and the 5th defendant to be ante-dated. Aggrieved, the 5th defendant filed the first appeal, wherein the Learned Single Judge reversing the judgment of the Trial Court, dismissed the suit. Aggrieved, the plaintiff is before this Court.
3. The learned counsel for the Appellant/Plaintiff assailing the judgment of the First Appellate court contended that the plaintiff has clearly established the genuineness of his agreement and considering the conflicting statements of the witnesses, the Trial court had rightly drawn adverse inference against the defendants and rightly decreed the suit.
4. The learned counsel for the Appellant/Plaintiff further contended that it was the duty of the 5th defendant to implead the plaintiff in his suit and also contended that a relief of declaration as to the validity of the decree was unnecessary as the plaintiff had filed a separate suit for specific performance. The learned counsel also placing reliance upon the judgments reported in
5. The learned counsel for the Appellant/Plaintiff further contended that the first appellate court erred further in neglecting the undisputed enmity between the plaintiff, DW2 and DW3 and the affidavit dated 17.12.1980 filed by one Palanisamy, an attesting witness to the agreement dated 10.09.1980. Therefore, the learned counsel for the appellant prayed that the appeal be allowed setting aside the judgment and decree of the first appellate court.
6. Per contra, the learned counsel for the 1st respondent/5th defendant defending the judgment and decree of the first appellate court contended that the judgment of the learned single judge is sound and based on settled principles of law. The learned counsel further contended that the 5th defendant secured the property only based on the decree of the Trial Court and possession was also handed over to him in 1982. The learned counsel further contended that agreement between the defendants 1 to 5 is genuine and prior to the agreement with the plaintiff and once there is a decree of the court and unless it is set aside by appropriate proceedings as per law, the decree irrespective of any finding or observation in any subsequent proceedings would survive and in the above circumstances, sought the dismissal of the appeal.
7. Heard the learned counsel for the appellant/plaintiff and the learned counsel for the 1st respondent/5th defendant. Other respondents have neither appeared in person nor through their counsel.
8. Upon perusal of the records including the judgment of the trial court and the 1st appellate court, this court is of the view that, apart from relying upon the contradictions in the oral evidence of DW2 and DW3, the plaintiff has not produced any material to show that the agreement dated 10.09.1980 was not genuine. We concur with the finding of the Learned Single judge that it is the duty of the plaintiff to prove his case. In the present case, we are of the view that the plaintiff, though has proved the genuineness of the agreement with him, has failed to prove that the agreement entered into by the defendants 1 to 4 with the 5th defendant is ante-dated. Whereas, the attesting witnesses have been examined by the 5th defendant to prove the genuineness of his agreement.
9. It is settled law that the defendant is entitled to take inconsistent pleas in defence and it is for the plaintiff to prove his case. In the judgment reported in
"Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions."
In the present case, the plaintiff has not produced any material independently to prove that the document produced by the defendant was ante-dated. As rightly held by the Learned Judge, the Plaintiff has not produced any evidence to disprove the statement of DW2 and DW3, apart from raising a plea of personal animosity. Rather surprisingly, a stand is taken by the plaintiff, had he known about the existence of the agreement dated 10.09.1980, he would have dated his agreement much earlier than the agreement with the 5th defendant.
10. In so far as the judgments in
11. Upon careful consideration, this court is of the view that the facts of the case before this court is completely different and the judgments are not applicable. In the present case, the 5th defendant has claimed legal right based on an agreement executed in his favour prior to the date of agreement with the plaintiff and secured the property only based on a court decree. Possession was also handed over through the court. This court is of the view that the ratio laid down in the above judgments would be applicable only in cases, where a transaction of sale is entered into afresh pending litigation.
12. It is pertinent to mention here that both the parties before filing their respective suits, knew about the existence of the agreement with another. As rightly pointed out by the Learned Single judge, having filed an application for stay of the suit filed by the 5th defendant, the plaintiff could have impleaded himself or amended the plaint to seek appropriate relief against the decree in the suit filed by the 5th defendant. Having allowed a decree to be passed, a sale deed to be executed and possession to be handed over, the plaintiff cannot cry foul later. As already held above, it is the duty of the plaintiff to prove that the agreement dated 10.09.1980 was ante-dated dehors the evidence or statements on the side of the defendants.
13. As rightly pointed out by the counsel for the 1st respondent, there is a decree of the very same court directing the defendants 1 to 4 to execute a sale deed in favour of the 5th defendant. The decree cannot be simply neglected as void in view of the subsequent findings. This court is of the further view that when the Trial court has refused to look into the validity of the decree obtained by the creditors in the suits filed by them, it should not have lodged itself into a misdirected roving enquiry on the validity of the agreement, which has been upheld by the very same trial court in O.S No 23 of 1981. Personal acrimony cannot be a ground to reject the evidence of DW2 and DW3, who have witnessed the agreement. The judgment of the Trial Court is purely based on possibilities rather than on evidence. Just because, the attesting witnesses failed to state anything about the agreement dated 10.09.1980, it cannot imply that it was created much later. Rather, the omission would only imply that the witness was not worried about execution of the sale deed in favour of the 5th defendant. Collusion by itself is not illegal unless it is contrary to law. It is pertinent to mention here that some of the creditors had filed the suits for recovery of money even before the plaintiff had filed his suit for specific performance. Therefore, this court finds no perversity in the judgment and decree dated 10.08.1999 in A.S.No 39 of 1984.
14. In the result, the Letter Patent Appeal is dismissed confirming the Judgment and Decree of the first appellant Court. No costs.
