IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 AS.No. 101 of 1999(A) -------------------------- OS.1131/1995 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT(S)/PLAINTIFF ------------------------------ P.K. VENU, S/O. KUMARAN, PUNNAKAZATH, MULAVUKAD DESOM, MULAVUKADU VILLAGE, MULAVUKADU P.O. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S).DEFENDANT ---------------------------------- K.P. JOSEPH, S/O. PATHROSE, KARALUTHARA, MULAVUKAD DESOM, MULAVUKADU VILLAGE, MULAVUKADU P.O. ADV. SMT.A.P.LALY @ LALY VINCENT THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = A.S.NO.101 OF 1999-F = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of November, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.This appeal is by the plaintiff in a suit for specific performance of a contract for sale. 2.According to the plaintiff, on 16.1.1995, Ext.A1 agreement was entered into between him and the defendant whereby the defendant agreed to convey an extent of 5 ½ cents of land and the building thereon for a total consideration of Rs.1.25 lakhs and that the defendant was paid an amount of Rs.1 lakh as advance and the remaining consideration of Rs.25,000/- was to be paid in 10 months. Alleging breach and refusal to abide by the obligation under Ext.A1, the suit was laid. AS101/99 -: 2 :- 3.The defendant contested contending that Ext.A1 was never entered into; that there was no agreement for sale at all and that certain signed blank papers were entrusted in connection with the availing of a chitty transaction with the plaintiff's mother. He denied the alleged contract for sale in toto. 4.The court below heard the evidence of the plaintiff as P.W.1., P.W.2 who is stated to be an attestor to Ext.A1 and P.W.3, a brother-in-law of P.W.1 who is stated to have provided Rs.45,000/- to the plaintiff for being paid as advance. D.W.1 is the defendant. D.W.2 is his wife and D.W.3 is a stranger. D.W.2 denied her signatures and D.W.3 spoke that plaintiff's mother had chitty transactions. 5.With the materials on record, the court below, on preponderance of probabilities, held that the execution of Ext.A1 and the alleged agreement for sale cannot be believed. The plaintiff was AS101/99 -: 3 :- accordingly non-suited. Hence, this appeal. 6.In support of the appeal, learned counsel for the plaintiff argued that the totality of the evidence on record points only to the conclusion that the plaint claim was sustainable and Ext.A1 transaction is proved. There was no reason for the court below, according to him, to have disbelieved the testimony of P.Ws.1, 2 and 3. He stated that the conclusions of the court below are away from the weight of evidence and the probabilities emanating out of the totality of the facts and circumstances. 7.We have not had the privilege of hearing the learned counsel for the respondent-defendant. 8.Ext.A1 is dated 16.1.1995. The execution of that agreement and the existence of any contract as pleaded in the plaint is denied in toto in the written statement and also in Ext.A3 reply notice dated 26.10.1995. Neither the plaintiff as P.W.1 AS101/99 -: 4 :- nor any witness on his behalf brings in evidence, the probability of any consensus arrived at between the parties or even of any discussion in relation to the so called agreement for sale, at any time before Ext.A1. We say this in the context of the fact that the agreement Ext.A1 dated 16.1.1995 has four sheets, of which the first is a stamp paper purchased in the name of the plaintiff on 9.1.1995. It was issued by a stamp vendor K.C.Dasan. The plaintiff has a case that it was one Dasan who wrote up the document and it was brought by Dasan. But the said person, Dasan, was not examined. We notice that no shred of material is available to disclose that there was any concluded mutual understanding preceding the execution of Ext.A1. Going by the fact that the first sheet of Ext.A1 is shown to have been purchased in the name of the plaintiff on 9.1.1995, if at all there was such an understanding, it should have been on or before 9.1.1995. There is no dependable legal evidence to this effect. This assumes importance because AS101/99 -: 5 :- it is alleged in the plaint and asserted by the plaintiff that it was on 16.1.1995 that the agreement was entered into. There is no plea regarding any other earlier discussions even. There is no evidence of any such earlier meeting of minds. Ext.A1 is stated to have been signed at about 6.30 p.m. and the plaintiff is stated to have parted with Rs.1 lakh out of the total consideration of Rs.1.25 lakhs on that day itself. P.W.3, his brother-in-law, says that P.W.1 had advanced certain amounts to P.W.3 and P.W.3 repaid that amount of Rs.45,000/- during the first week of January, 1995. P.W.1, the plaintiff, says that the defendant had entered into the agreement for sale because he needed funds in connection with the marriage of his second daughter. On the totality of the materials on record, we find that the conclusions arrived at by the court below on an appreciation of the entire evidence on record are more probable and there is no reason to upset those findings in appeal under Section 96 of the Code of Civil AS101/99 -: 6 :- Procedure. We may also note that there is fair amount of inconsistency as regards availability of funds with P.W.1 to support the contract. With all the aforesaid, we find no way to interfere, in any manner, with the findings of the court below. The appeal fails. The same is accordingly dismissed. No costs. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/09-25/11 AS101/99 -: 7 :- Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = A.S.101 of 1999-F = = = = = = = = = = = = = = = = = Judgment 2nd November, 2010.