IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 SA.No. 624 of 1996(G) --------------------- AS.24/1993 of SUB COURT, PAYYANNUR OS.203/1992 of MUNSIFF COURT, THALIPARAMBA .................... APPELLANT(S)/APPELLANT/PLAINTIFF: -------------- CHANGHASSERY NARAYANAN, S/O.MADHAVAN, AGED 41 YEARS, AGRICULTURIST, RESIDING AT PAYAM AMSOM DESOM, KOLIKKAAVU, PAYAM PANCHAYAT, WARD NO.VIII, HOUSE NO.58. BY ADV. SMT.VIDHYA. A.C RESPONDENT(S)/RESPONDENT/DEFENDANT: --------------- PUTHENPURACKAL PADMANABHAN, S/O.KUMARAN, AGRICULTURIST, RESIDING AT PADIYOOR AMSOM DESOM, PADIYOOR KALLIYAD PANCHAYAT, DIST. KANNUR. ADV. SRI.GRASHIOUS KURIAKOSE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.624 of 1996 -------------------------------------- Dated this the 11th day of March, 2009. JUDGMENT Appellant sued for specific performance of Ext.A1, agreement for sale dated 24.10.1991 alleging that respondent, by the said agreement agreed to sell 30 cents of land belonging to him for a consideration of Rs.9,000/- and received Rs.5,500/- as advance stipulating that the sale deed will be executed on or before 31.3.1992. Believing the said statement of the respondent in the agreement, appellant presented himself at the office of the Sub Registrar on 31.3.1992 but, the respondent did not turn up. Appellant issued Ext.A2, notice dated 2.4.1992 demanding execution of the sale deed. Respondent sent Ext.B5, reply denying execution of Ext.A1, agreement for sale. Hence, the suit. Respondent contended that he had not agreed to sell the property or, executed any such agreement. He along with appellant was conducting plantain cultivation in partnership and at the time of settlement of account, Rs.8,072/- was found due to him. Appellant refused to pay the said amount. Respondent preferred complaints against the appellant to various authorities. On 12.2.1992 appellant and his men forcibly obtained his signature on blank paper and blank stamp paper. Appellant gave evidence as PW1 and examined PWs 2 and 3, the scribe and one of the attesting witnesses to Ext.A1. Respondent gave contra evidence as DW1, proved Exts.B1 series to B5 series and examined DWs 2 and SA No.624/1996 2 3 whose spoke to the alleged incident on 12.2.1992. Learned Munsiff found that due execution of Ext.A1 is not proved and dismissed the suit with costs. First appellate court concurred. 2. Following substantial questions of law are raised for a decision:- (i) In the light of the evidence of PWs 1 to 3 and the admission by the defendant/respondent that the signature in Ext.A1 is that of the defendant/respondent, is the finding of the courts below that Ext.A1 is not executed by the defendant/respondent legally sustainable? (ii) In the facts and circumstances of the case has not the burden of proof of vitiating circumstances shifted on the defendant/respondent? Has the defendant/respondent discharged that burden? (iii) In the facts and circumstances of the case is the decree of the courts below legally sustainable? 3. It is contended by learned counsel for appellant that the finding entered by the courts below as to the execution of Ext.A1 is erroneous in that, evidence on record was not properly appreciated. Learned counsel contended that even the first appellate court observed that evidence of PW3 when SA No.624/1996 3 independently considered is not at all suspicious . It is also contended by the learned counsel though it is the case of the respondent that his signature was forcibly taken on blank paper and blank stamp paper on 12.2.1992 on which the agreement was fabricated, Ext.B3(a), complaint dated 24.10.1991 would show that the respondent was aware of the contents of Ext.A1 even on that day which falsified his case. Learned counsel referred me to what the counsel called, the contradictions in the evidence of DWs 1 to 3 as regards the alleged incident on 12.2.1992. Learned counsel for respondent would say that no question of law and much less no substantial question of law is involved in this Second Appeal since the finding entered by the courts below rested on proper appreciation of evidence and hence, no interference is called for. 4. Ext.A1 is the disputed document. It contains the signature of the respondent. This is admitted by him in his evidence as DW1. But, mere admission of signature does not tantamount to admission or proof of the execution of the agreement though, admission of the signature may go a long way in proving the due execution. Notwithstanding the admission of the signature in Ext.A1, since the execution of that agreement is disputed by the respondent, the burden lay on the appellant to prove the same. SA No.624/1996 4 5. Ext.A1 purports to be an agreement dated 24.10.1991 for sale of the property belonging to the respondent for a total consideration of Rs.9,000/- and states that respondent received Rs.5,500/- as advance on the date of the agreement. The time for execution of the agreement is till 31.3.1992. That agreement is seen attested by PW3 and one Ottaplackal Joseph. PW3 stated that he along with Ottaplackal Joseph signed Ext.A1 as witnesses and that the respondent signed Ext.A1 in their presence. PW2 is the scribe of Ext.A1. She claimed that she prepared Ext.A1 on blank papers as instructed by Aboobacker, the document writer under whom she was working at the relevant time. Contra evidence is given by DWs 1 to 3. According to them there was an incident near the ration shop on 12.2.1992 where the appellant and his men forcibly took the signature of the respondent on blank papers and blank stamp paper. DW2 however, stated that he did not listen whether anything was written in the stamp paper on which the signature of the respondent was taken. But, he stuck to his version that the said incident occurred on 12.2.1992 near the ration shop. 6. One important factor which the courts below took into consideration is the manner in which Ext.A1 is prepared. It is seen from the last page of Ext.A1 that unlike in other documents, the name and signature of the respondent comes after the name and signature of the witnesses (including PW3). As regards that what PW2, the scribe stated is that it was so written SA No.624/1996 5 since there was no sufficient space. I am unable to understand how there could be lack of space for the respondent or the witnesses to sign. It is seen from page No.3 of Ext.A1 that the signature of respondent is towards the middle of the paper and above that is the name and signature of the attesting witnesses. It is difficult to believe that if the document was prepared in the usual course, the name of the witnesses would have been written before the name of the executant. The question of lack of space did not arise when PW2 was preparing the document. Assuming that it was mistakenly preferred in that way, the last page being a white paper there was no difficulty for the scribe (PW2) to write the entries in the last page in another sheet properly with the name of the witnesses occurring after the name of the executant. Looking at page No.3 of Ext.A1 there is reason to think that the agreement was written on the paper in which the signature of the respondent had already been taken. Since between the signature of the executant and the body of agreement there was much space, a clever attempt was made to utilise that blank portion by writing the name of the witnesses. 7. Coming to the evidence of PWs 1 to 3, it is stated by the appellant as PW1 that the first attestor (Ottaplackal Joseph) in Ext.A1 is the person who had purchased the property of the appellant and respondent. So far as PW3, the second attestor in Ext.A1 is concerned, appellant admitted that PW3 is his SA No.624/1996 6 neighbour but PW3 would deny that. As to the unusual manner in which the signatures are seen in the last page of Ext.A1, PW3 initially stated that respondent signed before himself and the first attesting witness signed but later, stated that the respondent signed after the witnesses signed. PW3 admitted that the appellant is known to him for about 10-12 years and that the office of the document writer (where Ext.A1 was prepared) is situated about 10 kms. away from his house. He claimed that he went there as requested by the appellant and the respondent. But according to the appellant, he had not asked any of the witnesses to be present at the office of the document writer. PW3 was also sure that the first attesting witness in Ext.A1 (Ottaplackal Joseph) was also brought by the appellant. 8. Exts.B1 series to B4 series show that respondent has been preferring complaints against the appellant repeatedly before various authorities concerning the cultivation they had in partnership and the appellant not paying the amount due to him. it is admitted by the appellant also that he is aware of those complaints. Ext.B3(a) is a copy of the complaint dated 24.10.1991 sent by the respondent to the Chief Minister of the State on the very same allegation. Ext.A1 is allegedly executed on 24.10.1991. It is difficult to believe that if the relationship of the appellant and the respondent was so cordial on 24.10.1991 and the respondent agreed to sell his land to the appellant and executed Ext.A1 SA No.624/1996 7 on that day, respondent would prefer a complaint to the Chief Minister on the same day though concerning the partnership and cultivation and claiming that money due to him is not paid. Exts.B1 series to B4 series show that even after 24.10.1991, respondent has been making complaints against the appellant. In fact the appellant admitted in his evidence as PW1 that he had preferred a complaint against the respondent to the Iritty Police in October, 1991 alleging that certain amount was due to him from the respondent being the consideration of his property sold along with the property of the respondent (to Ottaplackal Joseph, the first attestor in Ext.A1) and the Circle Inspector had summoned the respondent to his Office. Appellant admitted that the Circle Inspector directed the respondent to pay Rs.5,000/- to the appellant. Respondent agreed to pay the amount before 31.3.1992. But the appellant denied that Ext.A1 was procured in connection with the said transaction. It is interesting to note that as per the version of the appellant as PW1, respondent had agreed to pay the said sum of Rs.5,000/- as directed by the Circle Inspector on or before 31.3.1992 and the very same day appears in Ext.A1 as the last day for the execution of the sale deed. A further fact to be noted is that assuming that as on October, 1991 Rs.5,000/- was due to the appellant from the respondent, no reference was made to that amount in Ext.A1. Instead, appellant SA No.624/1996 8 claims to have paid Rs.5,500/- as advance to the respondent. If Rs.5,000/- was due to the appellant at the time of Ext.A1, necessarily that amount would have been adjusted in the sale consideration payable as per Ext.A1. 9. It is true that there is reference to the sum of Rs.5,500/- in Ext.B3 (a) dated 24.10.1991. It is stated in Ext.B3(a) that respondent lost Rs.13,500/- including Rs.5,500/- as per the agreement in which his signature was forcibly taken. It is also true that going by Ext.A1, the stamp paper is seen purchased in the name of the respondent on 24.10.1991. Learned counsel for respondent would explain the statement in Ext.B3(a) as on account the respondent instructing DW2 to mediate the dispute. There is no reference in Ext.B3(a) to the agreement for sale though there is a reference to an agreement in which the signature of the respondent was said to be forcibly taken. But, that by itself is not sufficient in the light of the materials which I have stated above to conclude in favour of due execution of Ext.A1. Ext.B1(a), copy of notice dated 27.3.1992 shows that even before the appellant issued Ext.A2(a), notice dated 2.4.1992, respondent has taken up the specific contention that he had not executed Ext.A1, agreement for sale. DWs 2 and 3 have given evidence about the appellant and his men forcibly taking the signature of the respondent. Appellant when examined as PW1 admitted that DWs 2 and 3 are known to him and that there is no enmity between him and DWs 2 and 3. According to the appellant (as SA No.624/1996 9 PW1), he saw the property referred to in Ext.A1 just five days before Ext.A1. Courts below have considered the evidence and found against the due execution. No substantial question of law is involved as, the finding rest on proper appreciation of the evidence. I find no reason to interfere. The Second Appeal is dismissed. No costs. C.M.P.No.1360 of 1996 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.624/1996 10 Thomas P.Joseph, J. S.A.No.624 of 1996 JUDGMENT 11th March, 2009.