Madras High Court
Chinnapappa vs A.S.Palanivel on 21 April, 2026
AS Nos. 637 and 638 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 10-11-2025
PRONOUNCED ON: -04-2026
CORAM
THE HON'BLE DR.JUSTICE A.D.MARIA CLETE
AS Nos. 637 and 638 of 2018
and CMP No.5647 of 2023
AS No. 637 of 2018
1. Chinnapappa
2. P.Mahendiran
3. P.Gopi ..Appellants
Vs
1.A.S.Palanivel
2.P.Kavitha
3.P.Premalatha ..Respondent(s)
4.P.Jeevitha
PRAYER: The appeal suit is filed under Section 96 r/w. Order 41 Rule 1 of
C.P.C. to set aside the judgment and decree dated 14-03-2018 made in
O.S.Nos.6674 of 2015, on the file of the XV Additional Judge, City Civil Court,
Chennai.
CMP No. 5647 of 2023 in A.S.No.637 of 2018
A.S.Palanivel
.. Petitioner
Vs
1.Chinnapappa
2.P.Mahendiran
3.P.Gopi
4.P.Kavitha
5.P.Premalatha
6.P.Jeevitha ..Respondent(s)
PRAYER: The Civil Miscellaneous Petition filed under Order XLI, Rule 27 of
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the Civil Procedure Code, to permit the petitioner/respondent to mark the Sale
deed dated 28.09.2015 registered as Document No.2784/2015 at Sub Registrar
Office Ashok Nagar, issued by the Tamil Nadu Slum Clearance Board for the
property bearing Plot No.31A in respect of the Non-residential portion which is
adjacent to the suit property as an Exhibit in this Appeal Suit.
AS No. 638 of 2018
Chinnapappa
..Appellant
Vs
A.S.Palanivel ..Respondent(s)
PRAYER: The appeal suit is filed under Section 96 r/w. Order 41 Rule 1 of
C.P.C. to set aside the judgment and decree dated 14-03-2018 made in
O.S.Nos.6673 of 2015, on the file of the XV Additional Judge, City Civil Court,
Chennai.
In A.S.No.637 of 2018:
For Appellant(s): Mr.M.Vijayakumar
For Respondent(s): Mr.M.Aravindan
for R1
R-2 to R-4 – Given up
In A.S.No.638 of 2018:
For Appellant(s): Mr.M.Vijayakumar
For Respondent(s): Mr.M.Aravindan
COMMON JUDGMENT
The present appeals, A.S. Nos. 637 and 638 of 2018, arise out of the
common judgment and decree dated 14.03.2018 passed by the XV Additional
Judge, City Civil Court, Chennai, in O.S. Nos. 6774 and 6773 of 2015
respectively.
2. A.S. No. 638 of 2018 is directed against the judgment and decree
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passed in O.S. No. 6773 of 2015, while A.S. No. 637 of 2018 is directed against
the judgment and decree passed in O.S. No. 6774 of 2015.
3. The suit in O.S. No. 6773 of 2015 was instituted by the vendor
seeking a direction to the purchaser to return the title deeds relating to Item I of
the suit schedule property, and for a permanent injunction restraining him from
interfering with the vendor’s possession of the suit property.
4. The suit in O.S. No. 6774 of 2015 was filed by the purchaser
against the vendors seeking execution of a sale deed in respect of Item No. I of
the property, and a mandatory injunction directing the vendors to obtain a sale
deed from the Tamil Nadu Slum Clearance Board and thereafter execute a sale
deed in favour of the purchaser in respect of Item No. II of the property, in
terms of the sale agreement dated 15.12.2005.
5. The trial Court tried both suits jointly and, by a common judgment,
declined to order return of the documents/title deeds and dismissed O.S. No.
6773 of 2015, while granting the relief of specific performance as prayed for in
O.S. No. 6774 of 2015 and decreeing the said suit.
6. For the sake of convenience, the parties are referred to as they were
arrayed before the trial Court in O.S. No. 6773 of 2015.
7. The plaintiff in O.S. No. 6774 of 2015, who is the respondent in
both the appeals, filed C.M.P. No. 5647 of 2023 in A.S. No. 637 of 2018 under
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Order XLI Rule 27 CPC seeking to receive an additional document, namely, a
certified copy of the sale deed dated 28.09.2015.
8. Since both the appeals arise out of a common judgment and relate
to the same subject matter in both appeals, and as the averments in the plaint in
one suit substantially correspond to the averments in the written statement in the
other, both the appeals are being disposed of by this common judgment.
9. Brief contents of the plaint in O.S. No. 6773 of 2015 and the
written statement in O.S. No. 6774 of 2015 are as follows: The suit property
bears Door No. 5, Old No. 3, Kamarajar Salai, Kanniappa Nagar, Ashok Nagar,
Chennai, measuring about 990 sq. ft. The residential portion of the property was
conveyed by the Tamil Nadu Slum Clearance Board in favour of the plaintiff
under a registered sale deed dated 24.05.2002, whereas the non-residential
portion had not yet been conveyed by the Board. The defendant, who is in
occupation of the non-residential portion as a tenant, was paying a monthly rent
of Rs.1,730/-. The plaintiff and her legal heirs entered into a sale agreement
dated 15.12.2005 with the defendant for sale of the entire property for a total
sale consideration of Rs.24,50,000/-, under which a sum of Rs.7,00,000/- was
paid as advance. According to the plaintiff, the agreement was subject to the
condition that the vendors should first obtain conveyance of the non-residential
portion from the Slum Clearance Board, and since such conveyance could not
be secured, the sale could not be completed. It is her further case that the
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defendant obtained the original title deed relating to the residential portion on
the pretext of showing the same to an auditor for arranging finance, failed to
return it, and thereafter attempted to compel the sale, necessitating the
institution of O.S. No. 6773 of 2015 for return of the title deed and for
permanent injunction.
10. Brief contents of the written statement in O.S. No. 6773 of 2015
and the plaint in O.S. No. 6774 of 2015 are as follows: The defendant, on the
other hand, treated the agreement as a genuine and enforceable contract and
instituted O.S. No. 6774 of 2015 seeking specific performance and a mandatory
injunction directing the plaintiff and her legal heirs to obtain a sale deed from
the Tamil Nadu Slum Clearance Board in respect of the non-residential portion.
His case is that the vendors had represented that they would secure the
remaining conveyance from the Slum Clearance Board and, relying on such
representation, he entered into the agreement, paid an initial sum of
Rs.7,00,000/-, and thereafter paid a further sum of Rs.50,000/- on 15.06.2006.
He further claimed that, in part performance of the contract, the original sale
deed and possession of the front-side shops were handed over to him, and that
he had always been ready and willing to complete the purchase, but the
plaintiffs kept postponing performance.
11. Both the suits were tried jointly, and oral as well as documentary
evidence was adduced. On the side of the plaintiff, P.W.1 was examined and
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Exs. A1 to A6 were marked. On the side of the defendants, D.W.1 and D.W.2
were examined and Exs. B1 to B3 were marked.
12. Upon an appreciation of the oral and documentary evidence, the
trial Court held that the sale agreement dated 15.12.2005 was true, valid and
enforceable, and that time was not the essence of the contract. It found that the
parties had acted upon the agreement even beyond the original period stipulated
thereunder, particularly in view of the further payment of Rs.50,000/-, and that
the agreement had not lapsed. The trial Court further held that the absence of
conveyance of the non-residential portion by the Tamil Nadu Slum Clearance
Board did not render the agreement wholly incapable of performance, and that
the defendant had proved his readiness and willingness to perform his part of
the contract. On that reasoning, the trial Court dismissed O.S. No. 6773 of 2015
and decreed O.S. No. 6774 of 2015, directing deposit of the balance sale
consideration, execution of the sale deed in respect of the residential portion,
namely Item No. I of the suit schedule property, and further directing
defendants 1 to 3 to obtain conveyance of the non-residential portion from the
Board and thereafter execute a sale deed in favour of the plaintiff therein.
13. Aggrieved by the common judgment and decree, the present
appeals have been preferred contending that the trial Court misappreciated both
the facts and the law. According to the appellants/plaintiffs, the trial Court erred
in accepting the contention of the defendant that he had entered into possession
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of the second item of the property under the doctrine of part performance of
contract. Under the sale agreement dated 15.12.2005, the time fixed for
completion of the transaction was three months. However, the defendant did not
take steps to complete the transaction and issued the legal notice, Ex. A2, only
after nine months. In the meanwhile, the plaintiff had terminated the agreement
on 14.09.2006. It is further contended that the trial Court failed to consider the
specific recital in the agreement that the original title deeds and possession of
the property would be handed over only upon registration of the conveyance.
The trial Court is also said to have wrongly placed reliance on Section 13 of the
Specific Relief Act and Section 43 of the Transfer of Property Act. The
plaintiffs further emphasised that the first plaintiff was an elderly illiterate
widow, while the defendant was a builder, and that the transaction failed only
because the Tamil Nadu Slum Clearance Board did not execute the sale deed in
respect of the non-residential portion, as evidenced by Exs. A5 and A6, and not
on account of any default on their part.
14. C.M.P. No. 5647 of 2023: The defendant, who is the respondent in
A.S. No. 637 of 2018, filed C.M.P. No. 5647 of 2023 seeking reception of an
additional document, namely, the certified copy of the sale deed dated
28.09.2015 executed by the Tamil Nadu Slum Clearance Board in favour of a
third party to the suit. In the affidavit filed in support of the petition, it is
averred that the plaintiffs’ contention that the Tamil Nadu Slum Clearance
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Board had stopped issuing sale deeds in respect of the suit property and that the
suit sale agreement had thereby become inoperative is false. According to the
defendant, the plaintiffs relied upon Exs. A5 and A6, which are reply letters
issued by the Tamil Nadu Slum Clearance Board. On verification, it was found
that the stand taken by the plaintiffs is incorrect, since the Tamil Nadu Slum
Clearance Board had executed a sale deed dated 28.09.2015, registered as
Document No. 2785 of 2015 on the file of the Sub-Registrar, Ashok Nagar, in
respect of Plot No. 31A relating to the non-residential portion adjacent to the
suit property. It is further stated that the defendant was not aware of the said
document during the pendency of the suits before the trial Court and came to
know of it only recently, and that the present petition has therefore been filed.
15. Learned counsel for the appellants/plaintiffs submitted that only the
residential portion had been conveyed by the Tamil Nadu Slum Clearance
Board, while the non-residential portion remained unconveyed, and that the sale
was to be completed only thereafter. Though the appellants had made bona fide
efforts to obtain the sale deed, as seen from Exs.A5 and A6, the respondent
neither paid the balance sale consideration within time nor proved readiness and
willingness; hence, the agreement was unenforceable. It was further contended
that the respondent wrongfully retained the original sale deed, took possession
of the non-residential portion, and later sought to confine the transaction to the
residential portion alone by reducing the sale consideration. Therefore, it was
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argued that the decree for specific performance was unsustainable, the suit was
bad for non-joinder of the Tamil Nadu Slum Clearance Board, and the
appellants’ suit for return of title deeds ought to have been decreed. It was
further submitted that the agreement was contingent upon the Tamil Nadu Slum
Clearance Board executing a sale deed in respect of the non-residential portion
and, since that event did not occur within the stipulated time, the contract lapsed
and could not be specifically enforced. In support of these submissions, reliance
was placed on K. Narendra v. Riviera Apartments (p) Ltd., (1999)5 SCC 77 ,
Gana Kannappan v. G. Mohanlal Patel 2025 (3) CTC 306 , Satish Kumar v.
Karan Singh, and Alagammal v. Ganesan (2016) 2 MLJ 40. It was also
submitted that the execution proceedings in E.P. No.1171 of 2020 would abide
by the result of these appeals, in view of the order of this Court dated
19.01.2023 in C.M.P. No.17124 of 2018 in A.S. Nos.637 and 638 of 2018.
16. The learned counsel for the respondent/defendant submitted that
the admitted facts were that the property had two portions, that the residential
portion had already been conveyed to the first appellant, that the non-residential
portion was still to be conveyed by the Tamil Nadu Slum Clearance Board, and
that both parties had entered into Ex.A1 sale agreement, under which the
appellants received Rs.7,00,000 as advance and a further Rs. 50,000 on
15.06.2006. He further submitted that, though he was originally a tenant in the
commercial portion, he was later put in possession of it in part performance of
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the contract, that the first plaintiff’s own evidence was inconsistent regarding
the handing over of the original title deeds, and that the trial court therefore
rightly held the agreement to be enforceable. He also submitted that the
agreement continued to subsist, that the defect was only one of imperfect title as
to a portion of the property, and that the vendors could still be compelled to
perfect title and perform the contract, placing reliance on Rojasara Ramjibhai
Dahyabhai v. Jani Narottamdas Lallubhai, (1986) 3 SCC 300. He also pointed
out that, in compliance with the decree in O.S. No. 6774 of 2015, he deposited
the balance sale consideration of Rs. 17,00,000, filed E.P. No. 1171 of 2020,
faced contest from the plaintiffs in those execution proceedings, and, in the
absence of any stay, obtained a court-executed sale deed dated 22.01.2024 in
Doc. No. 514 of 2024 for the residential portion, followed by delivery of
possession through the Court bailiff on 17.07.2025. On that basis, he contended
that the appeals were without merit and that the common judgment and decree
should be confirmed.
17. Points for determination: In the light of the grounds raised in the
appeals and the rival submissions made on either side, the following points arise
for determination in these first appeals:
In A.S. No. 638 of 2018:
1. Whether the plaintiffs/vendors are entitled to return of title deeds
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2. Whether the defendant obtained possession of Item I of the property as
part performance of the contract?
3. Whether the judgment and decree dated 14.03.2018 passed in O.S. No.
6773 of 2015 are liable to be set aside?
In A.S. No. 637 of 2018:
4. Whether the petition to receive additional evidence CMP N0.5647 of
2023 to be allowed?
5. Whether the agreement to sell Ex A1 dated 15.12.2005 is contingent in
nature?
6. Whether the mandatory injunction issued against the plaintiffs to obtain
sale deed from the statutory authority TNSLB to the commercial plot
item II of suit schedule property is sustainable?
7. Whether the defendant is in possession of second item of property under
the part performance of contract to sell?
8. Whether the judgment and decree dated 14.03.2018 passed in O.S. No.
6774 of 2015 are liable to be set aside?
18. After disposal of the suits by the trial court, while the appeal was
pending, the defendant/decree holder filed an execution petition in E.P.No. 1171
of 2020 and got the sale deed executed through court, and in consequence took
delivery of Item I of the property. The execution petition was thereafter closed.
19. Point No. 4: This application has been filed by the
respondent/defendant in answer to Exs. A5 and A6 marked on the side of the
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plaintiff. Ex. A5 is a proceeding addressed by the Tamil Nadu Slum Clearance
Board to the plaintiff regarding stoppage of allotment of non-residential plots in
Kanniappa Nagar. The same position is reiterated in Ex. A6 dated 25.02.2016.
In the affidavit filed in support of the application, the defendant stated that the
Tamil Nadu Slum Clearance Board had executed a sale deed in respect of a non-
residential plot during the same year and, on that basis, sought to mark the
certified copy of the said sale deed as an additional document. However, on a
careful perusal of the document sought to be produced, it is seen that it relates
only to a residential plot, as specifically stated at page 6 of the sale deed.
Therefore, the document does not pertain to the non-residential portion, as
alleged in paragraph 7 of the affidavit. In such circumstances, since the affidavit
has been filed with an incorrect factual premise, the petition is liable to be
dismissed in limine. Accordingly, the petition C.M.P. No. 5647 of 2023 is
dismissed and the point is answered.
20. Point No. 5: The sale agreement dated 15.12.2005 relates to a
property consisting two portions, namely, residential portion and non-
residential portion. Insofar as the residential portion is concerned, the plaintiff
had already obtained a sale deed. However, allotment in respect of the non-
residential portion had yet to be obtained. Although the property is described as
a single unit in the sale agreement, the defendant, in the suit filed by him,
bifurcated the same into two parts and described them as Item Nos. 1 and 2.
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21. The character and status of the properties described as Item Nos. 1
and 2 are distinct. Item No. 1 is the residential plot, which had already been
allotted in the name of the husband of the first plaintiff, and in respect of which
the Tamil Nadu Slum Clearance Board subsequently executed a sale deed in
favour of the first plaintiff. Therefore, Item No. 1 became the absolute property
of the plaintiffs, with full right of alienation. In contrast, Item No. 2 is a non-
residential plot which has not yet been allotted in favour of the plaintiffs. The
communications addressed by the Tamil Nadu Slum Clearance Board to the
plaintiff disclose that allotment of the non-residential plot has been deferred
without any definite time frame being indicated. Hence, in respect of Item No.
2, the plaintiffs can are only prospective allottees, and their title has not yet
materialized.
22. Insofar as Item No. 1 is concerned, the sale agreement is complete.
However, in respect of Item No. 2, the plaintiffs agreed to sell the property only
after obtaining a sale deed from the Tamil Nadu Slum Clearance Board. It is
thus clear that, as on the date of the sale agreement, the plaintiffs were merely
prospective owners of Item No. 2. The sale agreement also contains a specific
clause that the plaintiffs assured to obtain a sale deed from the Tamil Nadu
Slum Clearance Board within three months and thereafter convey the same to
the defendant. Thus, completion of the sale agreement was dependent upon the
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plaintiffs obtaining the sale deed from the Tamil Nadu Slum Clearance Board in
respect of Item No. 2. In that context, the plaintiffs has termed the sale
agreement as a contingent contract within the meaning of Section 32 of the
Indian Contract Act. Section 32 provides that a contingent contract cannot be
enforced by law unless and until the event has happened and if the event
becomes impossible, such contracts become void.
23. On the other hand, the defendant placed reliance on Section 13(1)
(a) of the Specific Relief Act, 1963 and Section 43 of the Transfer of Property
Act, 1882. Both provisions operate in distinct fields. Section 43 of the Transfer
of Property Act applies where a person fraudulently or erroneously represents
that he is authorised to transfer certain property and professes to transfer the
same for consideration; if he subsequently acquires an interest in that property,
the transfer, at the option of the transferee, operates on the interest so acquired.
In the present case, the plaintiffs neither made any false representation nor
claimed title to the property without having such title, and, in any event, no
transfer had taken place. On the contrary, the sale agreement itself specifically
records that the plaintiffs would first obtain a sale deed from the Tamil Nadu
Slum Clearance Board within three months and only thereafter convey the
property to the defendant. Likewise, Section 13(1)(a) of the Specific Relief Act,
1963 has no application to the facts of the present case. That provision applies
where a person, falsely representing himself to be the owner of property,
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fraudulently enters into a sale agreement, and subsequently acquires title
thereto, in which event the other party may compel performance. Here, the
plaintiffs did not misrepresent their title and, admittedly, they did not become
owners of the second item of property. Hence, the plea advanced by the
defendant in this regard is unsustainable.
24. Another contention raised relates to Section 13(1)(b) of the
Specific Relief Act, 1963. The said provision contemplates that where a person
enters into a sale agreement requires the concurrence of a third party to perfect
his title, and such third party is bound to give that concurrence, the other
contracting party may compel him to procure such concurrence or consent.
25. In the present case, conveyance from the Tamil Nadu Slum
Clearance Board is necessary to perfect the plaintiffs’ title in respect of Item
No. 2. The question, however, is whether the Tamil Nadu Slum Clearance
Board is under any obligation to convey the property. The Tamil Nadu Slum
Clearance Board is a statutory authority constituted under the Tamil Nadu Slum
Areas (Improvement and Clearance) Act, 1971. It is not bound, as a matter of
course, to convey the non-residential portion of the property to the plaintiffs.
The object of the Act is to eradicate unhygienic and insanitary conditions
prevailing in slum areas and to provide better accommodation and improved
living conditions for slum dwellers. Neither the Act nor the Rules deals with
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allotment of commercial or non-residential plots. In such circumstances, it
cannot be held that the Tamil Nadu Slum Clearance Board is bound to accede to
the plaintiffs’ request. Consequently, the plaintiffs cannot be compelled to
procure conveyance from the Tamil Nadu Slum Clearance Board, and this
provision also has no application.
26. On the side of the defendant, reliance was placed on the decision of
the Supreme Court in Rojasara Ramjibhai Dahyabhai v. Jani Narottamdas
Lallubhai(dead) by Lrs and another, (1986) 3 SCC 300. In that case, the
vendor had agreed to sell agricultural land as a village site after obtaining
permission from the Collector. Though the Collector initially rejected the
request, the vendor subsequently obtained permission owing to a change in law,
and the Court held that the contract was not a contingent one. The facts of the
present case stand on a different footing. Here, the conveyance by the Tamil
Nadu Slum Clearance Board is itself uncertain. Further, the Slum Clearance Act
is a piece of social welfare legislation. Apart from placing reliance on the above
decision, the defendant has not offered any detailed explanation regarding the
pre-existing right of the plaintiffs, if any, in respect of the non-residential
portion of the property.
27. As already observed, the Tamil Nadu Slum Clearance Board is
under no obligation to execute a conveyance, and even to this date the non-
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residential portion has not been conveyed in favour of the plaintiffs. Having
regard to the object of the Act and the absence of any provision for allotment of
non-residential property, the possibility of securing such conveyance appears
remote. The recital in the agreement that “after obtaining sale deed from
TNSCB for the non-residential portion within three months we will execute the
sale deed” is a contingent clause . Since the said event has not occurred, the
contract is unenforceable. This point is answered accordingly.
28. Point No. 6: The trial Court accepted the defendant’s claim and
decreed the suit in respect of Item No. 1 of the property. It also granted a
mandatory injunction directing the plaintiffs to obtain a sale deed from the
Tamil Nadu Slum Clearance Board within a period of six months and thereafter
execute a sale deed in favour of the defendant within one month. While the trial
Court focused on the readiness and willingness of the defendant, it failed to
consider the enforceability of such a decree. As already discussed, the Tamil
Nadu Slum Clearance Board is a statutory body and is under no obligation to
execute a conveyance in favour of the plaintiffs. Further, Section 14(d) of the
Specific Relief Act, 1963 bars grant of specific performance where execution of
it would require continuous supervision by the Court. As already noted, the
defendant has already obtained a sale deed in respect of Item No. 1 and has also
recovered physical possession through Court. The defendant himself bifurcated
the suit property into two parts, namely, residential and non-residential, and the
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contingent aspect of the contract relates exclusively to Item No. 2, namely, the
commercial portion. Insofar as Item No. 1 is concerned, there is no dispute
regarding the exclusive title of the plaintiffs. The trial Court also segregated the
issues and dealt with them separately. In view of the bar contained in Section 14
of the Specific Relief Act, 1963, the mandatory injunction granted in respect of
the non-residential property is unsustainable in law. This point is answered
accordingly.
29. Point No. 2 and Point No. 7: It is admitted that the defendant was
a tenant under the plaintiffs in respect of one shop portion forming part of Item
No. II of the suit property, on a monthly rent of Rs.1,730/-. This fact is admitted
by both sides. The further plea of the defendant is that, when the plaintiffs
received an additional sum of Rs.50,000/- on 15.06.2006, they handed over
possession of the front-side shop portion in part performance of the agreement,
and that, therefore, the question of his continuing to pay rent is irrelevant and
unsustainable in law.
30. On a perusal of Ex. A1, the sale agreement dated 15.12.2005, and
the endorsement dated 15.06.2006, it is seen that there is no recital evidencing
delivery of possession to the defendant. Since the defendant claims that he has
been in possession of Item No. II of the suit property from 15.06.2006 not as a
tenant but in part performance of the contract, the burden lies upon him to
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establish the same. Section 53A of the Transfer of Property Act, 1882 deals
with part performance of a contract. For its application, the agreement of sale
must be in writing, its terms must be ascertainable with reasonable certainty,
and possession must have been delivered or continued in part performance of
the contract. In the absence of any clause in the agreement or in the subsequent
endorsement regarding delivery of possession in part performance, the mere
existence of a sale agreement is insufficient to establish that the defendant is in
possession of the property under part performance of the contract. Therefore,
the defendant’s possession of the suit property can only be referable to his status
as a tenant. A tenant cannot unilaterally alter his status into that of a purchaser
in possession.
31. Ex. A1, the agreement of sale dated 15.12.2005, is an unregistered
document. In order to claim the benefit of possession under the doctrine of part
performance in terms of Section 53A of the Transfer of Property Act, 1882, the
agreement must be a registered one, as required by the amendment introduced
by Act 48 of 2001 with effect from 24.09.2001. In the present case, there is not
only an absence of registration of the agreement, but there is also no written
recital therein regarding delivery of possession. In such circumstances, the
unilateral plea of the defendant that his possession stood transformed from that
of a tenant into that of an agreement holder is clearly untenable. His continued
occupation of the property without payment of rent is wholly unjustified. Mere
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execution of a sale agreement, in the absence of any clause relating to delivery
of possession, does not relieve a tenant of his liability to pay rent. Therefore, the
defendant’s claim that he is in possession of Item No. II of the property as an
agreement holder under part performance of the contract cannot be sustained.
Accordingly, this point is answered.
32. Point No. 3 and Point No. 8: The suit property described in Ex.
A1 sale agreement is divisible, and the plaintiff in O.S. No. 6774 of 2015 has
himself treated it as such by bifurcating it into Item Nos. 1 and 2 in the suit.
Section 12 of the Specific Relief Act, 1963 empowers the Court to grant
specific performance of part of a contract in appropriate cases. Accordingly, this
Court is inclined to confirm the decree for specific performance granted by the
trial Court in respect of Item No. 1 of the property, while setting aside the
decree for specific performance insofar as it relates to Item No. 2 of the
property.
33. The total sale consideration fixed by the parties for the entire suit
property was Rs.24,50,000/-. Pursuant to the order of the trial Court, the
defendant deposited the said sum and obtained execution of the sale deed in
respect of the 1st item of property. It is stated that the executing Court executed
the sale deed for the 1st item by treating the entire sale consideration of
Rs.24,50,000/- as referable to that item. No separate or apportioned
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AS Nos. 637 and 638 of 2018
consideration was fixed for the 2nd item of property.
34. Upon the draft sale deed being presented, the Court executed the
sale deed in favour of the defendant. The relevant recital in the sale deed shows
that the property described in the schedule thereto was conveyed for the total
sale consideration. Therefore, once the entire amount deposited has already
been treated as the consideration for the 1st item of property and the sale deed
has been executed on that basis, the same cannot now be disturbed.
35. Once the entire amount deposited has been appropriated towards
the sale consideration for the 1st item of property, the defendant interest would
necessarily be affected, since the agreed sale consideration was for both the 1st
and 2nd items of property together. The defendant is therefore entitled to be
compensated in that regard.
36. In the above circumstances, having regard to the subsequent
developments, namely the change in title and possession, and in order to avoid a
further round of litigation by way of restitution proceedings, this Court is
inclined to invoke Order XLI Rule 33 CPC to do complete justice between the
parties and to bring the entire controversy to a quietus. Accordingly, this Court
is inclined to retain the decree of the trial Court in so far as it relates to the 1st
item of property and to set aside the decree in so far as it relates to the 2nd item
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AS Nos. 637 and 638 of 2018
of property.
37. It is not in dispute that the defendant originally came into
possession of the 2nd item of the suit property as a tenant. He thereafter set up a
plea that his possession of the said non-residential property was referable to part
performance of the contract and, on that footing, continued in possession
without payment of rent from 15.06.2006 onwards, that is, for nearly twenty
years.
38. In the above circumstances, the excess amount available out of the
sale consideration deposited before the trial Court, after appropriation towards
the 1st item of property, can be given due adjustment towards the arrears of rent
payable by the defendant in respect of the 2nd item of property. Since the
defendant has remained in occupation and enjoyment of the 2nd item of
property for nearly two decades without payment of rent, the amount notionally
attributable to the 2nd item of property and already absorbed towards the
consideration for the 1st item shall stand adjusted towards the rent / occupation
charges payable for the 2nd item of property.
39. It is made clear that, from the date of this judgment onwards, the
defendant shall continue in respect of the 2nd item of property only as a tenant
and shall remain liable to pay rent therefor. It is further made clear that the right
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AS Nos. 637 and 638 of 2018
of the plaintiff, as landlady, to claim enhanced rent or occupation charges, and
to work out her remedies in accordance with law, including by initiating
eviction proceedings in respect of the 2nd item of property, is left open.
Accordingly, this point is answered.
40. Point No.1: In so far as A.S.No.638 of 2018 is concerned, the
appeal arises out of the judgment and decree passed in O.S.No.6773 of 2015,
wherein the trial Court declined to grant the relief of mandatory injunction
directing the defendant to hand over the title deeds. In view of the subsequent
developments, the defendant has now become the owner of the 1st item of the
suit property and is therefore entitled to retain the original title deeds relating to
the said property. Consequently, the relief sought in O.S.No.6773 of 2015 has
become infructuous. No relief can therefore be granted in the suit, and the order
of dismissal passed by the trial Court in O.S.No.6773 of 2015 is liable to be
confirmed. Accordingly, this point is answered.
41. In the result, A.S.No.638 of 2018 is dismissed confirming the
judgment and decree passed by the trial court in O.S.No.6773 of 2015. In so far
as A.S.No.637 of 2018 is concerned, the judgment and decree passed by the
trial Court in O.S.No.6774 of 2015 are modified as follows:
i. The judgment and decree dated 14.03.2018 passed by the trial
Court in O.S.No.6774 of 2016, in so far as they relate to the 1st
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AS Nos. 637 and 638 of 2018item of the suit schedule property, are confirmed.
ii. The judgment and decree dated 14.03.2018 passed by the trial
Court in O.S.No.6774 of 2016, in so far as they relate to the 2nd
item of the suit schedule property, are set aside, and the suit, in
respect of the said 2nd item of property, stands dismissed.
iii. Defendants 1 to 3 in O.S.No.6774 of 2015 shall be entitled to
withdraw the entire amount deposited by the plaintiff and lying to
the credit of the trial Court, together with accrued interest, if any,
towards the sale consideration for the 1st item of property and
towards the arrears of rent in respect of the 2nd item of property.
iv. In the result, A.S.No.637 of 2018 is partly allowed and C.M.P.
No. 5647 of 2023 is dismissed. No order as to costs. Consequently,
all the miscellaneous petition is closed, if any.
-04-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No__________
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AS Nos. 637 and 638 of 2018To
1. The XV Additional Judge,
City Civil Court,
Chennai.
2. The Section Officer,
V.R. Section,
High Court of Madras.
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AS Nos. 637 and 638 of 2018
DR.A.D.MARIA CLETE, J.
SRM
Pre-Delivery Judgment made in
AS Nos. 637 and 637 of 2018
.04.2026
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