(Prayer: The Second Appeal is filed under Section 100 of C.P.C., against the judgment and decree dated 20.09.2002 of A.S.No.280 of 2001, passed by the learned Principal District Judge at Tirunelveli reversing and confirming the judgement and decree dated 25.11.1999 of the Learned Additional Subordinate Judge, Tenkasi made in O.S.No.28 of 1998.)1. The Second Appeal is filed against the Judgment and Decree passed by the learned Principal District Judge, Tirunelveli in A.S.No.280 of 2001 on 20.09.2002 reversing the Judgment and decree passed by the learned Additional Subordinate Judge, Tenkasi made in O.S.No.28 of 1998.2. The appellant is the plaintiff in O.S.No.28 of 1998. The respondent is the defendant in the said suit. Appellant filed the suit for recovery of Rs.30,000/- together with interest at the rate of 24% per annum being the balance sale consideration and Rs.5,200/- being the amounts borrowed by the respondent for payment of stamp duty and registration charges. The appellant is a power agent of Tmt.Gomathi Krishnan, K.G.Krishnan and K.G.Raman, who were the owners of the property. The respondent agreed to purchase the said property for total sale consideration of Rs.1,40,000/- and paid Rs.10,000/- as advance on 05.08.1994. Subsequently, the respondent paid Rs.1,00,000/- by way of three Demand Drafts bearing number 576576, dated 08.10.1994, bearing number 576593, dated 19.10.1994 and bearing number 576592, dated 19.10.1994 and requested the appellant to execute the sale deed and promise to pay the balance sale consideration of Rs.30,000/- within six months together with interest at the rate of 24% p.a., Further, he borrowed a sum of Rs.3,800/- towards stamp duty and Rs.1,400/- towards Registration charges, totalling Rs.5,200/- from the appellant promising to repay the said sum together with interest at the rate of 24% p.a. Believing the said promise, the appellant executed a sale deed on 10.02.1985. The respondent did not pay the amounts. Therefore, he issued a notice, dated 03.03.1997 Ex.A2. The respondent sent a reply dated, 13.03.1997 denying the payment by the appellant and claimed Rs.1,00,000/- from the appellant. The appellant sent a re-joinder, dated 31.03.1997 and filed a suit for recovery of amounts as mentioned above.
3. The respondent filed written statement and denied all the allegations made by the plaintiff and submitted that the appellant agreed to sell two items of properties for total sale consideration for first item Rs.1,40,000/- and for second item Rs.87,000/-. The respondent paid the entire sale consideration of Rs.2,27,000/- to the appellant. The appellant executed a sale deed only in respect of first item of the property and did not execute the sale deed in respect of second item of the property. Therefore, appellant is liable to pay a sum of Rs.87,000/- together with interest and respondent filed O.S.No.84 of 1997 before the Sub Court, Tenkasi claiming a sum of Rs.1,00,000/- from the appellant.
4. Based on the pleadings, the learned Sub Judge, Tenkasi framed necessary issues. Joint trial was conducted, common evidence was let in O.S.No.84 of 1997. The respondent examined her husband Thiru.Kannan as P.W.1 and marked 7 documents as Ex.A1 to A7. The appellant examined himself as D.W.1 and marked 3 documents as Ex.B1 to B3.
5. Considering the pleadings, oral documentary evidence and arguments of the counsel for the parties, the learned Judge dismissed the suit in O.S.No.84 of 1997 filed by the respondent holding that the respondent failed to prove the agreement of sale in respect of second item of the property and payment of sale consideration of Rs.87,000/-. The trial Court decreed the suit in O.S.No.28 of 1998 for Rs.5,200/- and dismissed the suit in respect of other claim of Rs.30,000/- by the appellant. 6. The respondent did not file any appeal against the dismissal of O.S.No.84 of 1997. The appellant filed A.S.No.280 of 2001 against the judgment and decree dismissing the claim of Rs.30,000/- made by the appellant. The respondent filed cross-appeal in A.S.No.280 of 2001 against the judgment and decree for Rs.5,200/-. The learned Principal District Judge, Tirunelveli formulated necessary points for consideration and independently, considering the pleadings, oral and documentary evidence and judgment of the trial court, dismissed the A.S.No.280 of 2001 and allowed the cross appeal in A.S.No.280 of 2001. Against the said judgment and decree, dated 20.09.2002 made in A.S.No.280 of 2001 dismissing the A.S., the appellant has filed the present second appeal.
7. At the time of admission, this Court has framed the following substantial question of law.
1.Whether the first appellate Court was correct in its view that the provisions of Section 92 of the Indian Evidence Act would apply and the appellant is not entitled to let in oral evidence to prove that the entire consideration has not paid?
8. The learned counsel for the appellant submitted that the respondent has paid Rs.5,200/- and therefore, no appeal was filed against the judgment allowing the cross appeal. He further submitted that the courts below have failed to see that as per first proviso to Section 92 of Indian Evidence Act, the appellant can let in oral evidence to prove that balance sale consideration of Rs.30,000/- was not paid. Even though, in the registered sale deed it has been mentioned that the respondent has paid a sum of Rs.30,000/-. The courts below erred in holding that as per Section 92 of Indian Evidence Act, no oral evidence cant be let in against the documentary evidence.
10. The learned counsel for the appellant relied on the following judgment reported in 1197-3 L.W.717 Muthia Pillai and another v. P.Radhakrishna Pillai and paragraph 10 is held as follows:-
10. The document Ex.A1 recited the consideration of Rs.10,000/- for the transaction and the fact that is has already been received, though the attempt of the plaintiff was to assert the claim for Rs.20,000/- as being the consideration and both the Courts below have rejected the same and it is in that context, the Courts below accepted the document and the consideration recited in the document, to be the only consideration for the transaction. On the question of actual passing of consideration, the Courts below have concurrently found that it was case of failure of consideration and that actually the vendor had executed the document on the assurance of payment and without actually receiving the consideration recited therein. This aspect of the matter and the findings of the Courts below in this regard, would clearly fit in with the Exception provided in Proviso No.1 to Section 92 of the Evidence Act and is also in conformity with the principles laid down by the Division Bench of this Court, referred to supra. In view of the above, learned counsel endeavoured to contend that the case on hand should not be treated as a case of want of consideration or failure of consideration, since according to learned counsel if that be the position, the plaintiff ought to have come to the Court with the relief of annulling the document Ex.A1 and not for the relief as prayed for. In my view, the fact that the plaintiff could have sought for the relief of having the sale deed annulled, does not disentitle him to abide by the transaction, but yet seek to recover the consideration recited therein by proving failure of consideration. The plaintiff had a choice of relief and merely because he has chosen to opt for one particular type of relief, the question pertaining to the scope of Section 92, particularly, Proviso No.1 thereto and its applicability to the case on hand and right to take advantage of the same does not stand in any manner undermined. Since both the Courts below have concurrently found as a question of fact that the vendor has executed the sale deed without actually receiving the consideration recited therein and only on the assurance of payment in future, the Courts below could not be accused of having committed any error of law or transgressed the mandate contained in Section 92 of the Evidence Act and particularly, when the question of want of consideration or failure of consideration was permissible to be proved by virtue of the Exception carved out in Proviso No.1 to Section 92 of the Evidence Act. In the light of the above, I do not find any merit in the Second Appeal and the Second Appeal shall stand dismissed. No costs.
11. The learned counsel for the appellant submitted that P.W.1 was examined on behalf of the respondent had admitted that the vendors, principals of the appellant were residing at Calcutta and he does not know them. Therefore, the averments made in the sale deed that a sum of Rs.30,000/- was paid to the principals of appellant by cash, is not correct and appellant has pleaded and proved that the respondent did not pay the balance sale consideration of Rs.30,000/-. Further, the respondent has not filed any appeal against the judgment in O.S.No.84 of 1997 filed by her. Therefore, the respondent is estopped from claiming that she has paid balance sale consideration of Rs.30,000/- in view of principles of res-judicata.
12. The learned counsel for the appellant relied on the following judgment.
2002(4) CTC 94 Sundararaj v. R.Manoharan
8. It is also seen from para 22 of the judgment of the lower appellate court, relying upon Fathima Bibi Ammal v. A.A.Mohammed Mohideen and others, 1971(2) MLJ 451 that in a case of Joint trial of two suits between the same parties and if an appeal is filed against only one decree, the other decree operates as res judicata. It is only under such circumstances, the lower appellate court came to the conclusion that as no appeal has been filed, the judgment and decree in O.S.No.487 of 1983 will operate as res judicata. Hence, I am of the view that the finding given by the lower appellate court is proper and correct and no interference is called for. 13. Per contra, the learned counsel appearing for the respondent submitted that the appellant is the power agent of Original owner and principals have not filed any appeal. Even in the cause title he has not stated that suit is filed on behalf of the principals. By virtue of Section 92 of the Indian Evidence Act, he cannot file a suit contrary to the terms of sale deed. The present appeal also hit by res-judicata and he has paid only court fee with regard to claim made in the suit alone, not with regard to cross appeal. He further submitted that the appellant is a power agent of vendors has admitted in the sale deed executed by him that balance sale consideration of Rs.30,000/- was paid to him by the respondent. In view of the categorical admission in the registered document it is not open to the appellant to allege that the sum of Rs.30,000/- was not paid by the respondent. The appellant except his interested evidence, has not examined any independent witness to prove that a sum of Rs.30,000/- was not paid by the respondent and on the assurance of the respondent that she would pay the balance sale consideration together with interest at the rate of 24% p.a., he had executed the sale deed. The courts below has rightly applied the provision of Section 92 of Indian Evidence Act and rejected the claim of the appellant with regard to Rs.30,000/-.
14. In support of his contention, the learned counsel for the respondent relied on the following judgments. (I) 2015(2) CTC 178 Nanjappan vas. Ramasany and Ors.
10.As per Section 92 of the Indian Evidence Act, when the terms of any such contract have been reduced to the form of a document, no evidence of any oral Agreement or Statement shall be admitted as between the parties to any such instrument for the purpose of contradicting, varying, adding to or subtracting from terms. Courts have recorded concurrent findings rejecting the stand of the Appellant that the actual sale price was rupees three lakhs and for the purpose of Stamp duty and Registration charges, lesser amount was written and this is well in accordance with Section 92 of the Evidence Act and we do not find any reason warranting interference in the said concurrent findings of the Courts below.
ii)2016-2-L.W.215 M/s.Deccan Chronicle Holdings Ltd., v. YES Bank Limited and another
The sale deeds executed contain an identical clause of handing over possession. We are of the view that once the sale deed is executed and registered, nothing contrary can be pleaded to what is already being specified therein in view of Section 92 of the Indian Evidence Act, 1872. Thus, even the story of possession being retained by the plaintiff does not hold good and is an endeavour to create a question mark on the possession issue of the property even when the sale deed has specified to the contrary. 15. I have heard the arguments of the learned counsel appearing for the appellant and the respondent and perused the materials available on record and considered the oral, documentary evidence and judgments of the trial court and first appellate court.
16. The learned counsel for the appellant submitted that the appellant is entitled to let in oral evidence to prove that the consideration was not paid, even though in the document it has been stated that the consideration was paid. No doubt, it is true that as per first proviso to Section 92 appellant is entitled to let in oral evidence to prove the consideration as mentioned in the document namely sale deed was not paid to him. In the present case the appellant has not let in any acceptable evidence to prove that a sum of Rs.30,000/- was not paid to him. The appellant has not examined any other witness to substantiate his claim. The appellant has not examined any independent witness especially the witness in the sale deed.
17. For the above reasons, I hold that the appellant has not proved the balance sale consideration of Rs.30,000/- was not paid to him. In view of this conclusion, the judgment relied on by the learned counsel for the appellant do not advance the case of the appellant. Therefore, substantial question of law for the above reason answered against the appellant. The second appeal is dismissed confirming the judgment and decree made in A.S.No.280 of 2001 passed by the Principal District Judge, Tirunelveli and made in O.S.No.28 of 1998 for Rs.30,000/- and set aside the judgment and decree for Rs.5,200/- passed by the Additional Subordinate Judge, Tenkasi.