IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 RSA.No. 70 of 2008(G) --------------------- AS.78/2002 of ADDL.SUB COURT, ALAPPUZHA OS.911/1996 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... : APPELLANT/APPELLANT/PLAINTIFF ---------------------------------------------- T.M.VASUDEVAN, S/O.MADHAVAN, AGED 52 YEARS, TEACHER, GOVT.REGIONAL FISHERIES TECHNICAL SCHOOL, CALICUT. BY ADV. SRI.VISHNU.R RESPONDENTS: RESPONDENT/DEFENDANT --------------------------------- M.M.SIVASANKARAN, S/O.MADHAVAN, AGED 54 YEARS, KAILASAM, WARD NO.4, THAKAZHY PANCHAYATH, KUNNUMMA. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.192/2008 IN R.S.A.NO.70/2008 4.2.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 70 OF 2008 =========================== Dated this the 4th day of February, 2008 JUDGMENT Plaintiff in O.S.911/1996 on the file of Munsiff Court, Alappuzha is the appellant. Defendant is the respondent. Plaint schedule property admittedly belong to respondent. According to appellant, under Ext.A1 agreement for sale dated 12.4.1994 respondent agreed to sell the plaint schedule property to appellant for Rs.27,000/- and received Rs.20,000/- as advance towards the sale consideration and agreeing to execute the sale deed within one year Ext.A1 was executed. It was contended that subsequently on 30.4.1995 appellant paid Rs.7000/- also and though he wanted respondent to execute the sale deed, he did not do so and appellant sent a notice to respondent directing to execute the sale deed stating that he will be present at the Sub Registrar's office on 18.11.1986. Contending that R.S.A.No.70/2008 2 respondent did not attend the Sub Registrar's office and execute the sale deed, suit was filed for specific performance of the agreement for sale. Respondent resisted the suit contending that there was no agreement for sale at all. According to respondent, he borrowed Rs.20,000/- and as security had handed over a signed stamp paper which was utilised by appellant to create Ext.A1 and appellant is not entitled to a decree for specific performance of the agreement for sale. 2. Learned Munsiff on the evidence of Pws.1 to 4, Dws.1 to 3 and Exts.A1 to A4 holding that appellant failed to establish execution of Ext.A1, dismissed the suit. Appellant challenged the judgment before Sub Court, Alappuzha in A.S.78/2002. Learned Sub Judge on reappreciation of evidence found that evidence of Pws.1 to 4 were not properly appreciated by courts below. It was also found that there is no reason to disbelieve the evidence of the attesting witnesses to Ext.A1. Rejecting the evidence of Dws. 1 to 3 and accepting R.S.A.No.70/2008 3 the evidence of Pws.1 to 4 it was found that Ext.A1 agreement for sale was executed by respondent after receiving Rs.20,000/- towards the sale consideration. It was further found that case of appellant that he paid Rs.7000/- on 30.4.1995 was not proved. Learned Sub Judge also found that appellant is not entitled to a decree for specific performance of the agreement but granted a decree for return of the advance amount received by respondent with interest at 6% from the date of execution of Ext.A1. Dissatisfied with the non- granting of specific performance, plaintiff filed the appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of the learned counsel is that when first appellate court on appreciation of evidence disbelieved the evidence of Dws. 1 to 3 and held that Ext.A1 agreement for sale was executed by respondent on receipt of Rs.20,000/- there is no reason to disbelieve the evidence of R.S.A.No.70/2008 4 Pws 1 to 4 with regard to the payment of balance consideration Rs.7000/- and on the evidence it should have been found that appellant has always been ready and willing to perform his part of the agreement and a decree for specific performance of the agreement should have been granted. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. Though trial court did not accept the case of appellant that Ext.A1 agreement was executed and accepted the case of respondent that a signed stamp paper was handed over as security when Rs.20,000/- was borrowed, first appellate court on appreciation of evidence found that Ext.A1 agreement was executed and case of respondent that he had only handed over a signed stamped blank paper is not correct. But that is not a reason to uphold the case of appellant that he paid Rs.7000/- being part of the balance sale consideration on 30.4.1995. There is no law that evidence tendered R.S.A.No.70/2008 5 by a witness is to be accepted as a whole or rejected as a whole. It is for the court to sift the evidence and accept the acceptable portion of the evidence and reject the remaining portion. If in fact Rs.7000/- was paid towards the balance sale consideration due under Ext.A1, appellant would have either obtained a receipt from the respondent for payment or at least obtained an acknowledgement in Ext.A1. First appellate court appreciated the evidence in the proper perspective rightly found that there is no evidence to prove the payment of Rs.7000/-, the remaining sale consideration due under Ext.A1. That factual finding cannot be interfered in exercise of the powers of this court under section 100 of Code of Civil Procedure as appreciation was not at all perverse. 7. Though first appellate court did not grant a decree for specific performance of the agreement for sale, return of the advance amount paid by appellant and received by respondent was granted. A decree for specific performance of the agreement is R.S.A.No.70/2008 6 a discretionary relief. Appellant has to establish that he has always been ready and willing to perform his part of the agreement so as to get a decree for specific performance of the agreement. When his case itself was that balance sale consideration was paid and that was found to be not correct, first appellate court was justified in holding that appellant was prepared to pay the balance sale consideration as agreed under Ext.A1. On the facts and evidence, I do not find any reason to interfere with the exercise of discretion by the first appellate court. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006