This revision has been directed against the Judgment in A.S.No.53 of 2006 on the file of the Court of Subordinate Judge, Bhavani which had arisen out of a decree and Judgment in O.S.No.45 of 2005 on the file of the Court of Second Additional District Munsif, Bhavani. The above revision has been filed under Section 115 of CPC.
2. According to the plaintiff in O.S.No.45 of 2005, the defendant, after receiving a sum of Rs.12,000/- had handed over the possession of his property scheduled to the Agreement dated 22.6.2002 and as per the terms of the agreement, the plaintiff is entitled to be in possession and enjoyment of the property scheduled to the agreement in lieu of interest for the hand loan of Rs.12,000/- and that the plaintiff undertook to deliver the vacant possession of the properties, after lapse of three years on repayment of the said amount of Rs.12,000/- by the defendant. After receiving the sum of Rs.12,000/- from the plaintiff, the defendant delivered vacant possession of the property scheduled to the said agreement dated 22.6.2002. One Kurumbapalayam Pottareddiar had filed a suit in O.S.No.211 of 2001 against the defendant and filed an execution petition by bringing the property for sale in execution of money decree obtained against the defendant in E.P.No.123/2003. One Muthukumarasamy Raja was the successful Court Auction Purchaser and the sale was confirmed on 23.11.2004. The sale certificate is also issued to the auction purchaser. The auction purchaser had taken steps for delivery of possession of the suit property which was sold in Court auction. The above said execution proceeding is known to the defendant also. The defendant has lost his title to the property scheduled to the said agreement dated 22.6.2002. Inspite of repeated demands, the defendant has failed to return the amount to the plaintiff which resulted in issuance of the suit notice by the plaintiff to the defendant dated 27.1.2005 demanding the defendant to pay the said sum of Rs.12,000/-. Even after the receipt of the said notice, on 28.1.2005, the defendant issued a reply notice dated 4.2.2005 acknowledging the receipt of the amount but with false contentions. Hence the suit.
3. The defendant in his written statement would contend that the allegations in the plaint that the defendant had borrowed a sum of Rs.12,000/- from the plaintiff and entered into an agreement dated 22.6.2002 and also handed over the possession of the property scheduled to the said agreement in lieu of interest and further agreed to re pay the said loan amount of Rs.12,000/- and to get possession of the said property are all false. There was no agreement as alleged in the plaint entered into between the plaintiff and defendant dated 22.6.2002. For the legal notice issued by the plaintiff, the defendant had sent a proper reply notice. On 22.6.2002, the defendant, after receiving the amount of Rs.12,000/- from the plaintiff, had signed in a blank stamp papers and also in white papers. In the year 2004, in the month of Aani, the defendant had executed a sale deed in respect of his ancestral property and discharged the loan from the sale proceeds. On the confidence reposed on the plaintiff, the defendant had not insisted for the return of the said agreement dated 22.6.2002 from the plaintiff. In EP.No.123 of 2003, about 1 acre 33 cents of property belonging to the defendant was sold in Court auction in favour of one Muthukumarasamy Raja. At the instance of the said Muthukumarasamy Raja in order to grab the entire extent of the said property, the plaintiff had issued the suit notice. In the reply notice, the defendant had demanded the plaintiff to return the alleged agreement dated 22.6.2002 to the defendant. Without heeding to the request made by the defendant in his reply notice, the plaintiff has rushed to the Court with the suit. The documents relied on by the plaintiff in the plaint are forged and concocted documents. After going through the alleged document of agreement dated 22.6.2002, the defendant came to know that signature contained in the said document dated 22.6.2002 does not tally with the signature of the defendant . The signature in the said document as"A.Gurusamy" in Tamil is a rank forgery. The said document is not a voucher as alleged by the plaintiff . The defendant is not bound to pay either Rs.12,000/- or interest on the said amount at the rate of 9% p.a. Hence the suit is liable to be dismissed.
4. On the above pleadings, the learned trial Judge had framed two issues. On the side of the plaintiff, P.Ws 1 to 3 were examined and Exs P1 to P4 were marked. There was no documentary evidence let in on the side of the defendant. The defendant had examined himself as D.W.1 besides examining one Mani @ Sengodan as D.W.2. After scanning the evidence both oral and documentary, the learned trial Judge has come to a conclusion that the plaintiff is not entitled to any relief as prayed for in the plaint and accordingly dismissed the suit. Aggrieved by the findings of the learned trial Judge, the plaintiff has preferred an appeal in A.S.No.53 of 2006 before the first appellate Court. The learned first appellate Judge, after meticulously going through the evidence both oral and documentary let in before the trial Court and after taking into consideration, the submissions made by the learned counsel on both sides, had allowed the appeal thereby decreeing the suit as prayed for with costs. Aggrieved by the findings of the learned First appellate Judge, the present revision has been preferred by the defendant.
5. The points for determination in this revision are
a) Whether the admitted possession of the land referred under Ex P4 deed of agreement will derive us to come to a conclusion that only after the discharge of the loan of Rs.12,000/- by the defendant, the plaintiff had handed over the possession?
b)Whether the decree and Judgment of the learned First Appellate Judge in A.S.No.53 of 2006 on the file of the Court of Subordinate Judge, Bhavani is liable to be set aside for the reasons stated in the grounds of revision?
6. Heard Mr.V.Pauldas, the learned counsel for the revision petitioner and Mr.S.Kaithamalai Kumaran, the learned counsel appearing for the respondent and considered their respective submissions.
7. Point No.1:
The learned counsel appearing for the revision petitioner mainly focus the attention of this Court to the admission made by the plaintiff in his oral evidence as P.W.1 as to the effect that the defendant is in possession and enjoyment of the property referred to under Ex P4 dated 22.6.2002. As per the terms of Ex P4, the defendant had borrowed a sum of Rs.12,000/- from the plaintiff and in lieu of interest of the said amount, had handed over the possession of the property scheduled to Ex P4. The period specified under Ex P4 for repayment of the said amount of Rs.12,000/- by the defendant to the plaintiff, was fixed as three years. There is also a condition imposed under Ex P4 as to the effect that when the defendant pays the said loan amount of Rs.12,000/- to the plaintiff within three years, then the plaintiff shall hand over the possession of the property scheduled to Ex P4. The defendant in his written statement has totally denied the execution Ex P4. It is the definite case of the defendant that Ex P4 is a forged document . As rightly observed by the learned First appellate Judge, to prove that Ex P4 is a forged document, the defendant had not taken any steps to send Ex P4 to an expert to get his opinion as to the effect that the signature contained in Ex P4 does not belong to the defendant. In the written statement, the defendant would contend that after selling his ancestral properties in the year 2004, he raised funds to discharge Ex P4 loan amount of Rs.12,000/-. Absolutely, there is no material placed before the trial Court on the side of the defendant to show that he had raised funds in order to discharge the loan of Rs.12,000/- borrowed by him under Ex P4 by selling his ancestral properties in the year 2004. Ex P4 has been proved by the plaintiff by examining P.W.2 and P.W.3. Per contra, to prove his contention that he had discharged the loan borrowed under Ex P4 , the defendant had examined D.W.2. D.W.2 would admit that he had not received any summons from the Court but he was brought to the Court only by the defendant. He has no knowledge about Ex P4. He would admit that a suit for money was also decreed against him in O.S.No.294 of 2001 and that he had filed I.P.NO.11 of 2004 before the Sub Court, Bhavani. D.W.2 would admit that he had not known the date and time of repayment of Rs.12,000/- by the defendant. Even for argument sake, if we accept the contention of the learned counsel for the revision petitioner/defendant that Ex P4 was created for the purpose of this case, it is not known why the defendant has not obtained any voucher or receipt for the repayment of Rs.12,000/- by him to the plaintiff. Under such circumstances, I hold on point No.1 that mere re-conveyance of possession by the plaintiff in respect of the property scheduled to Ex P4 to the defendant will not derive us to come to a conclusion that the defendant had discharged the loan of Rs.12,000/- borrowed by him from the plaintiff. Point No.1 is answered accordingly.
8. Point No.2:
In view of my findings and discussions in point No.1, I hold that there is no material placed before this Court to warrant any interference in the Judgment of the learned First appellate Judge in A.S.No.53 of 2006 on the file of the Court of Principal Subordinate Judge, Bhavani.
9.In fine, this civil revision fails and the same is hereby dismissed confirming the Judgment of the learned Subordinate Judge, Bhavani in A.S.No.53 of 2006. No costs. Consequently, connected M.P.No.1 of 2008 is also dismissed. At this juncture, the learned counsel appearing for the revision petitioner seeks time for payment. Time for payment is two months from today.
sg To the Principal Subordinate Judge, Bhavani