IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.04.2010
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Appeal Suit No.36 of 2006
1. B.Sugumar
2. S.Rajinikanth
3. R.Sivakumar
4. V.Prathap
5. V.Gowthaman
6. V.Chandra ... Appellants
vs.
M/s.Sri Krishna Tea Estate
a registered firm registered under
Indian Partnership
Act, represented by its
Managing Partner A.Kuppuraj
17,Round Road, Mahalingapuram
Pollachi, Coimbatore District. ... Respondent
Prayer: Appeal filed under Section 96 of C.P.C. against the Decree and Judgment dated 30.8.2005 made in O.S.No.15 of 2004 on the file of the District Judge, Nilgiris at Udhagamandalam.
For Appellant : Mr.K.Doraisami
Senior Counsel
for
Ms.Muthumani Doraisami
For Respondents : Mr.A.S.Venkatachalapathy,
Senior Counsel
for
Mr.M.Sriram
JUDGMENT
R.BANUMATHI,J.
This Appeal is directed against the judgment and decree in O.S.No.15 of 2004 on the file of District Court, Udhagamandalam decreeing the suit filed by the Respondent for recovery of Rs.12,12,596/- being the proportionate consideration paid by the Plaintiff/Respondent for the deficit extent of 7.10 acres and also interest thereon at the rate of 12% per annum. Unsuccessful Defendants are the Appellants.
2. Case of the Plaintiff is that as joint owners of the properties situated in Kotagiri in various survey numbers to an extent of 21.19 acres 'A' Schedule property, the defendants have conveyed the properties to the Plaintiff under Ex.A.1 sale deed dated 20.1.1997. Further case of Plaintiff is that while handing over possession of the property, Defendants have handed over only 'B' Schedule property i.e., 14.09 acres and have not handed over 7.10 acres of land i.e., 7.10 acres of land situated in S.Nos.65/4 to 65/8 of Voilatti village, Kotagiri Taluk was not handed over to the Plaintiff. Plaintiff, who has taken possession of 'B' schedule property effected mutation of their names in the revenue records to an extent of 14.09 acres. Further case of Plaintiff is that inspite of efforts to take possession of remaining 7.10 acres, the Plaintiff could not take possession of the same. Plaintiff has come to know that the Defendants have right to convey the properties only to an extent of 14.09 acres and that they have no title or possession to the above said 7.10 acres of land. According to the Plaintiff, under Ex.A.1 - sale deed they have paid total sale consideration of Rs.23,50,000/- for the entire extent of 21.19 acres. The proportionate consideration paid by the Plaintiff for 7.10 acres was Rs.7,87,400/-. Since the Defendants have not taken any steps to deliver possession of 7.10 acres of land, alleging that the Defendants are liable to pay the excess amount collected by them for the deficit extent of 7.10 acres amounting to Rs.7,87,400/-, Plaintiffs have filed the suit for recovery of Rs.12,12,596/- with subsequent interest at the rate of 12%per annum.
3. Admitting ownership of the entire extent of 21.19 acres and also admitting execution of Ex.A1 sale deed, Defendants have filed written statement contending that during negotiation Plaintiff has made proper enquiries and scrutinised the relevant documents and was fully satisfied about the title and possession of the Defendants. Defendants have further averred that possession of the entire extent was handed over to the Plaintiff on the date of sale and absolutely there was no complaint by the Plaintiff about any disturbance to the possession of the said extent of 21.19 acres. The defendants have denied non-handing over of possession of 7.10 acres and also denied allegations that extent of 7.10 acres is possessed by the third parties stating that the defendants have handed over entire extent of 21.19 acres, Defendants prayed for dismissal of the suit.
4. On the above pleadings, five issues were framed by the trial Court. On the side of the Plaintiff, Managing Partner of the Plaintiff firm Kuppuraj was examined as PW1 and Advocate-Commissioner was examined as PW2 and Exs.A1 and A2 were marked. On the Defendants' side, 1st Defendant was examined as DW1 and Ex.B1 sale deed dated 27.6.1995 was marked. In the trial Court, Advocate-Commissioner was appointed, whose report was marked as Ex.C1 and plan as Ex.C2.
5. Upon consideration of oral and documentary evidence, trial Court held that the Defendants have collected total consideration of Rs.23,50,000/- as if the Defendants were in possession of the entire extent of 'A' schedule property, whereas possession was not handed over to the Plaintiff to an extent of 7.10 acres. The trial Court further held that having received the entire consideration for 21.19 acres under Ex.A1 sale deed, the Plaintiff is entitled for the proportionate value for the deficit of 7.10 acres i.e., Rs.7,87,400/- as claimed in the plaint and the Defendants are liable to pay the same with interest. Pointing out the indemnity clause in Ex.A1 - sale deed that in the event of title being found fault, the defendants are liable to compensate the Plaintiff, trial Court decreed the suit for Rs.12,12,596/- and directed the Defendants to pay the same with subsequent interest at the rate of 12% p.a. on Rs.7,87,400/- from the date of suit till the date of decree and thereafter at 6% p.a. till the date of realisation with costs.
6. Mr.Doraisamy, learned Senior Counsel for the Appellants contended that the trial Court failed to see that Respondent/Plaintiff has taken possession of the entire property covered under Ex.A1-sale deed and there is no question of refund of part of sale consideration. It was further contended that as required by law, Ex.A1-sale deed was reduced writing and as per Sec.92 of Indian Evidence Act, no oral evidence could be adduced in contradiction to the recitals in Ex.A1-sale deed. It was mainly argued that no oral evidence could be adduced in varying or contradicting the terms of Ex.A1-sale deed. In support of his contention, learned Senior Counsel placed reliance upon 2001-1 LW 855 [S.Sakthivel (dead) by Lrs. v. M.Venugopal Pillai and others] and 2003 (2) CTC 264 [Ramachandran v. Y.Theva Nesom Ammal].
7. Mr.Venkatachalapathy, learned Senior Counsel for Respondent/Plaintiff contended that Respondent/Plaintiff was made to believe that Defendants are the owners and under bonafide impression, Respondent/Plaintiff had purchased the suit property. Learned Senior Counsel further contended that the parent title deed [Ex.B1] was not at all handed over to the Plaintiff and without any title or authority to sell the properties in S.Nos.65/4 65/5, 65/6, 65/7 and 65/8, Defendants have sold the properties. It was further argued that since there was breach of warranty of title, invoking the indemnity clause in Ex.A1-sale deed, Respondent is entitled to claim refund of proportionate sale consideration. In support of his contention, learned Senior Counsel placed reliance upon CDJ 1996 AP HC 1036 [Tawala Veerabhadra Rao v. Bonam Venugopala Rao]. Learned Senior Counsel further argued that Secs.91 and 92 of Indian Evidence Act would have no application when the title was lacking.
8. Upon consideration of evidence, materials on record and the rival contentions of both parties, the following points emerge for consideration in this Appeal:-
1. Whether the Defendants have no title as contended by the Plaintiff and Whether Plaintiff can sue on the basis of breach of statutory warranty?
2. As contended by the Plaintiff, whether possession was not given to the Plaintiff and the Plaintiff is entitled to claim possession?
3. Whether the trial Court was right in invoking indemnity clause in Ex.A1-sale deed that in the event of title being found defective and if there is dispute regarding extent and possession, Defendants are liable to pay proportionate consideration along with interest and cost?
9. Point No.1:- Case of Plaintiff is that Defendants have sold the properties comprised in S.No.43 6.22 acres; S.No.272 1.82 acres; S.No.70/3 1.52 acres; S.No.274/1 4.53 acres totalling 14.09 acres and S.No.65/4 3.50 acres; S.No.65/5 1.09 acres; S.No.65/6 0.97 cents; S.No.65/7 0.88 cents; S.No.65/8 0.66 cents totalling 7.10 acres. Defendants have handed over possession of 14.09 acres and inspite of efforts to take possession of the remaining 7.10 acres situated in S.Nos.65/4 to 8, Defendants have not handed over possession of 7.10 acres of land. Further case of Plaintiff is that since Defendants have collected total consideration of Rs.23,50,000/- for the extent of 21.19 acres and since possession was not handed over in respect of 7.10 acres, Defendants are liable to pay proportionate consideration paid by the Plaintiff for 7.10 acres i.e. Rs.7,87,400/-. In his evidence, PW1-Kuppuraj has stated that they are reposed faith in the Defendants and they called upon the Defendants to hand over possession. In his chief-examination, PW1 has stated that they called upon the Defendants to set right the discrepancy in the extent given, but the Defendants have not handed over possession.
10. Per contra, contention of Defendants is that only after scrutising the title deeds, Plaintiff was satisfied with the Defendants' title and possession. In his evidence, DW1-Sugumar has stated that on the date of execution of sale deed [Ex.A1] all the original title deeds have been handed over to the Plaintiff and they were placed in physical possession of the entire property. DW1 has further stated that absolutely, there was no complaint for three years till the filing of the suit on 19.01.2000 and it was for the first time such an untenable claim was made. In his evidence, DW1 has further stated that Plaintiff was given possession of the entire extent of 21.19 acres including 7.10 acres of S.Nos.65/4 to 8.
11. Case of Plaintiff is two fold:-
Defendants did not have title or authority to sell S.Nos.65/4 to 8 7.10 acres and that there was breach of warranty. Ex.B1 parent title deed was not handed over to the Plaintiff.
Possession was not handed over to the Plaintiff and Defendants cannot be allowed to enrich themselves by retaining Rs.7,87,400/- and are liable to repay the same along with interest.
12. As we pointed out earlier, in his evidence, PW1 has stated that Defendants have conveyed the property without proper title and Defendants have not handed over possession of 7.10 acres of land in S.Nos.65/4 to 8. Trial Court accepted the case of Plaintiff and relying upon the recital in Ex.A1-sale deed that if there is any defect in the title, Defendants are to make good the loss. The recitals of statutory warranty regarding title in Ex.A1 reads as under:-
VERNACULAR (TAMIL) PORTION DELETED
Trial Court accepted the contention of Plaintiff that there was defect in title and held that there is an indemnity clause in the sale deed executed and that in the event of the title being found fault or if there is any dispute regarding the extent and the possession or the title, they are liable to compensate the Plaintiff.
13. In order to appreciate the rival contention of both sides, we may usefully refer to Sec.55 of Transfer of Property Act.
55. Rights and Liabilities of buyer and seller In the absence of a contract to the contrary, the buyer and seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:
(1) The seller is bound-
(a) to disclose to the buyer any material defect in the property or in the seller's tile thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover.
(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller's possession or power.
(c) to (g) .............
(2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same.
........
(3) Where the whole of the purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller's possession or power:
(4) (a) and (b) ............
(5) The buyer is bound-
(a) to disclose to the seller any fact as to the nature or extent of the seller's interest in the property of which the buyer is aware, but of which he has reason to believe that the seller is not aware, and which materially increases the value of such interest;
............
From the reading of clauses (1) and (2) of Section 55 of T.P. Act, it is clear that in the sale by the seller to the buyer, there is always an implied warranty that the seller would make good the title in case either he has no title or his title was subsequently found to be discovered to the defective or he should compensate the buyer for the loss sustained by him.
14. Considering the scope of Sec.55 (1) (a) and (b), in CDJ 1996 AP HC 1036 [Tawala Veerabhadra Rao v. Bonam Venugopala Rao], the Division Bench of Andhra Pradesh High Court held as under:-
"7. ........ whenever a person proposes to sell the property it is presumed that he shall be deemed to sell his subsisting interest in the property. Section 55 (1) (a) further directs that such seller shall disclose if there are any material defects in the property or in the seller's title. Therefore, from these principles of law embodied in Section 55 (1) and (2) it follows that the buyer can sue the seller in case his title was either found to be defective or he had no title at all on the basis of his implied statutory warranty provided in the said Section. ......"
15. In (1994) 1 SCC 575 [Union Bank of India v. Official Liquidator], the Supreme Court has made it clear that the intending purchaser should satisfy in respect of the title, description encumbrances, area, boundary, description, quality, quantity, etc. and the purchaser would be deemed to offer with full knowledge as to the same.
16. If the buyer has accepted the sale conveyance, for any defect material in title, the buyer has remedy to claim damages. Plaintiff would be entitled to damages on the basis of statutory warranty and if they discovered the material defect which has not been disclosed to him, the buyer may claim damages or rescind the contract for misrepresentation.
17. In the instant case, though Plaintiff averred that Defendants have no title to S.Nos.65/4 to 8, Plaintiff has not satisfied as to what was the actual defect not disclosed. The point falling for our consideration is whether there was any breach of statutory warranty and whether Plaintiff is entitled to damages. There is no specific plea as to the defect in title.
18. As pointed out earlier, under Ex.A1-sale deed, apart from S.Nos.65/4 to 8, Plaintiff also purchased other items i.e. S.Nos.43, 272, 70/3 and 274/1 14.09 acres. Ex.A1 refers to totally nine sale deeds. PW1 has averred that they were not shown the parent sale deed in respect of S.Nos.65/4 to 8. The plea that Plaintiff was not shown the parent sale deed in respect of S.Nos.65/4 to 8 is untenable. By reading of Ex.A1-sale deed, there is a clear mention of original parent sale deed Ex.B1 [27.06.1995] regarding of S.Nos.65/4 to 8 as is seen from the following recitals:-
VERNACULAR (TAMIL) PORTION DELETED
19. Under Sec.55(1)(b) of T.P. Act, the seller is to produce his title deeds for inspection of the buyer and not for delivery. The seller has to produce the title deeds for inspection in order that the buyer should satisfy himself as to title. The recitals in Ex.A1-sale deed would clearly show that Plaintiff has verified the title deed and thereafter proceeded with the sale deed. Assuming for the sake of arguments that even if Ex.B1 [27.6.1995] parent title deed was not shown, since, reference of the same is made in Ex.A1-sale deed, Plaintiff could have applied for the same for perusal. It is pertinent to note that Plaintiff has not averred in the Plaint that parent title deed was not handed over to the Plaintiff.
20. In his evidence, PW1 has admitted that Ex.A1 refers to nine original sale deeds. During cross-examination, PW1 has also admitted that he checked nine sale deeds and thereafter only Plaintiff purchased the properties. During cross-examination, when specific question was put to him with regard to Ex.B1-sale deed, PW1 was evasive. Plaintiff's case of non-production of parent title deed in respect of S.Nos.65/4 to 8 is not well founded.
21. Plaintiff's case proceeds mainly on the footing that allegation of defect in title and breach of statutory warranty and invoking indemnity clause in Ex.A1-sale deed. Ex.A1-sale deed is dated 20.01.1997. But the suit was filed on the last date of limitation i.e. on 19.01.2000. For about three years, no notice was issued alleging the defect in title or that Defendants have not disclosed the material defect. Apart from the oral evidence other than PW1, absolutely, there is no evidence to show that Defendants have raised any objection prior to the filing of suit regarding the alleged defect in title.
22. When the documents are produced under Sec.55 (1) (b) of T.P. Act, as per Sec.55 (1) (c) buyer examines them and if he is not satisfied, he makes requisitions or objections. They are (1) requisitions on title; (2) requisitions as to matters relating to conveyance; and (3) merely inquiries. Requisitions on title are objections purporting that the documents do not show the agreed title or that the documents are not efficacious.
23. As pointed out earlier, Ex.A1-sale deed makes clear mention about the title deed Ex.B1 [27.6.1995] bringing home the title of the Defendants. Plaintiff has not come out with a specific case as to what was the requisition that they made as to the matters relating to conveyance in respect of S.Nos.65/4 to 8 and what was the defect. Absolutely, there is no evidence to show that any such requisition/objection was raised. Even though in his evidence PW1 has stated that number of times, they called upon the Defendants to produce the title deed pertaining to S.Nos.65/4 to 8 and requesting them to effect delivery of possession, there is no written request or notice issued to the Defendants. We are of the view that Plaintiff has failed to establish as to what was the material defect which was not disclosed and breach of any statutory obligation cast upon the Sellers/Defendants and the Point is answered against the Plaintiff.
24. Point Nos.2 and 3:- Grievance of the Plaintiff is that Defendant have committed breach of statutory obligation in not handing over possession. In his evidence, PW1 has stated that Defendants have no right or possession over 7.10 acres in S.Nos.65/4 to 8 and on several occasions, Plaintiff has called upon the Defendants personally to set right the discrepancy in the extent of the property and deliver title deeds and also possession over the remaining 7.10 acres conveyed to them. In his evidence, PW1 has further stated that third parties are in possession of the property 7.10 acres and Defendants have not taken any efforts to deliver possession of 7.10 acres. Under Sec.55 (1) (f) of T.P. Act, it is the duty of the seller to give possession and not to leave the buyer to get possession for himself. Sec.55 (1) (f) of T.P. Act does not say when the seller should give possession, but Sec.55 (4) (a) shows that possession should be given when ownership passes to the buyer.
25. In Ex.A1-sale deed, it is clearly averred that Plaintiff was satisfied with four boundaries and possession was handed over as is seen from the following recitals:-
VERNACULAR (TAMIL) PORTION DELETED
Without mincing the words in Ex.A1-sale deed, it is clearly stated that on receipt of sale consideration of Rs.23,50,000/-, possession of 21.19 acres was handed over to the Plaintiff.
26. As per Ex.A1-sale deed, 21.19 acres was sold in various Survey Numbers. In some of the Survey Numbers, entire extent was sold. In those of the items where lesser extent was sold i.e. S.Nos.272 and 70/3, in Ex.A1-sale deed boundaries were given for the said lesser extent. In Ex.A1-sale deed, it is also seen that before execution of sale deed parties appear to have measured the properties. For instance, in respect of S.No.43, even though Defendants are said to have purchased an extent of 6.52-2/5 acres, on measurement, it was noticed that they were in possession of 6.22 acres and only lesser extent of 6.22 acres which was in actual possession of the Defendants was sold which is clear from the following recitals in Ex.A1-sale deed
VERNACULAR (TAMIL) PORTION DELETED
It is evident from the recitals in Ex.A1 that Ex.A1-sale deed was executed after proper verification of the documents, measurement of properties and Plaintiff proceeded with clear mind and intention in what was being negotiated and specific extent was sold. The recitals also indicates that Plaintiff have clearly understood the extent of properties purchased by them.
27. When the recitals are reduced to writing, as per Sec.91 of Indian Evidence Act, Ex.A1-sale deed and the recitals thereon is the best evidence. Under Sec.92 of Indian Evidence Act, no oral agreement modifying or rescinding the contract or disposition of property can be substantiated by parol evidence. Sec.92 of Indian Evidence Act reads as under:-
"92. Exclusion of evidence of oral agreement. - When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.
Proviso (4) The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents."
28. Referring to Sec.92 and Proviso (4), in 2001-1 LW 855 [S.Saktivel (dead) and Lrs. v. M.Venugopal Pillai and others], the Supreme Court held as under:-
"5. A perusal of the aforesaid provision shows that what Section 92 provides is that when the terms of any contract, grant or other disposition of the property, or any matter required by law to be reduced in the form of document, have been proved, no evidence of any oral agreement or statement is permissible for the purpose of contradicting, varying, adding or subtracting the said written document. However this provision is subject to proviso 1 to 6 but we are not concerned with other provisos except proviso 4, which is relevant in the present case. The question then is whether the defendant-appellant can derive any benefit out of proviso (4) to Section 92 for setting up oral arrangement arrived at in the year 1941 which has the effect of modifying the written and registered disposition. Proviso (4) to Section 92 contemplates three situations, whereby
(i) the existence of any distinct subsequent oral agreement as to rescind or modify any earlier contract, grant or disposition of the property can be proved.
(ii) However, this is not permissible where the contract, grant or disposition of property is by law required to be in writing.
(iii) No parol evidence can be let in to substantiate any subsequent oral arrangement which has effect of rescinding the contract or disposition of property which is registered according to the law in force for the time being as to the registration of documents.
6. In sum and substance what proviso (4) to Section 92 provides is that where a contract or disposition, not required by law to be in writing, has been arrived at orally then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by parol evidence and such evidence is admissible. Thus if a party has entered into a contract which is not required to be reduced in writing but such a contract has been reduced in writing, or it is oral in such situations it is always open to the parties to the contract to modify its terms and even substitute a new by oral contract and it can be substantiated by parol evidence. In such kind of cases, the oral evidence can be let in to prove that the earlier contract or agreement has been modified or substituted by new oral agreement. Where under law a contract or disposition is required to be in writing and the same has been reduced in writing, its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. A document for its validity or effectiveness is required by law to be in writing and, therefore, no modification or alteration or substitution of such written document is permissible by parol evidence and it is only by another written document, the terms of earlier written document can be altered, rescinded or substituted. ......"
29. Keeping in view the aforesaid legal position of interpretation of Proviso (4) to Sec.92 of Indian Evidence Act, when we examine the evidence, Ex.A1-sale deed becomes effective by reason of the fact that it is registered. Once under law, a document is required to be in writing parties to such a document cannot be permitted to let in parol evidence to contradict the terms. If such parol evidence is permitted, it would divest the rights of other parties to the written document. Learned trial Court did not appreciate the evidence and rival contentions in the light of Sec.92 of Indian Evidence Act. Since parol evidence contradicting the terms of Ex.A1-sale deed as to the title deed and handing over possession is not admissible in evidence, the approach adopted by the trial Court is erroenous.
30. In the trial Court at the instance of Plaintiff, Advocate-Commissioner was appointed to identify the properties and to demarcate the Plaintiff's exact possession and corresponding Survey Number thereon and submit a report. In his report [Ex.C1], Advocate-Commissioner has stated that the 'Yellow' marked portion is in possession of the Plaintiff and the portion marked in 'Orange' colour is not in the possession of Plaintiff. The Advocate-Commissioner who was examined as PW2 has stated that Defendants were residing at Tanjore and he had spoken to them over phone as to the inspection; but they were not present at the time of inspection. In his evidence, PW2-Advocate Commissioner has stated that he inspected the suit property on 16.10.2004, 21.10.2004 and 30.10.2004 respectively along with Surveyor and filed his report on 19.11.2004. Defendants have not filed any objection to the report of the Advocate-Commissioner.
31. Trial Court faulted the Defendants for not filing any objection and observed that Defendants have no interest to report before the Advocate-Commissioner to identify the boundaries of the property and the exact extent they handed over to the Plaintiff. For decreeing the suit, trial Court mainly relied on the ground that Defendants have not appeared before the Advocate-Commissioner to identify the boundaries of the property which they handed over possession to the Plaintiff. Trial Court further took the view that sufficient time was given by the Court to the Defendants for filing objections to the Commissioner's report. But the Defendants have failed to file any objection to the Commissioner's report and the Defendants are extopped from challenging the Advocate-Commissioner's report.
32. Learned trial Court appears to have been swayed by the report of Advocate-Commissioner and also by the fact that Defendants were not present at the time of inspection of the suit property by the Advocate-Commissioner. The approach of the trial Court in basing its conclusion mainly on the report of Advocate-Commissioner borders on perversity. The suit was filed on 19.01.2000 i.e. on the last date of limitation of three years of Ex.A1-sale deed. Advocate-Commissioner has visited the suit property in October 2004 nearly seven years after Ex.A1-sale deed. It may be that Plaintiff was out of possession during the interregnum period. Observation of the Advocate-Commissioner in his report that Plaintiff is not in possession of the portion marked in "Orange" colour would not ipso facto lead to the conclusion that Defendants have not handed over possession at the time of execution of Ex.A1-sale deed.
33. If really portion marked in 'Orange' colour was not handed over to the Plaintiff, Plaintiff could have sent notice then and there complaining about non-handing over of possession of 7.10 acres. By perusal of Ex.C1-report, it is seen that 'Orange' colour marked portion is on the eastern side of channel and the channel is running between "Orange" colour marked portion and part of other portions conveyed to the Plaintiff. If possession of 'Orange' colour marked portion was not handed over to the Plaintiff, it would have been distinctly noticed by the Plaintiff and Plaintiff could have taken immediate steps complaining about non-handing over of possession. The absence of any immediate action on the part of the Plaintiff is a strong militating circumstance against the Plaintiff's case.
34. Learned trial Judge did not keep in view the impermissibility of parol evidence to vary the terms of Ex.A1-sale deed. Learned trial Judge also did not properly appreciate the delay on the part of the Plaintiff in filing the suit. It is also pertinent to note that Plaintiff has not filed the suit for rescinding the sale in respect of 7.10 acres in S.Nos.65/4 to 8. On the other hand, Plaintiff only seeks refund of proportionate sale consideration. The approach of the trial Court that there was defect in title and in view of the indemnity clause in Ex.A1-sale deed and that in the event of title being found fault in respect of 7.10 acres in S.Nos.65/4 to 8, the Defendants are liable to pay the proportionate consideration is not correct. If the suit is to be decreed, Plaintiff would be doubly benefitted i.e. Plaintiff would continue to have title over S.Nos.65/4 to 8 7.10 acres and at the same time, Plaintiff would have benefit of refund of proportionate consideration also which is not permissible. This aspect was not kept in view by the learned trial Judge. Learned trial Judge has not properly appreciated the evidence in the light of well settled principles of law and proceeded to decree the suit on the basis of impermissible evidence and Judgment of the trial Court cannot be sustained and these points are answered accordingly.
35. In the result, the decree and judgment in O.S.No.15 of 2004 dated 30.08.2005 on the file of District Judge, Udhagamandalam is set aside and the Appeal is allowed. The suit O.S.No.15/2004 is dismissed. In the circumstances of the case, both parties are directed to bear their own costs. Consequently, connected CMP is closed.
bbr
To
The District Judge,
Udhagamandalam
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