IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 RSA.No. 888 of 2011() --------------------- AS.144/2008 of ADDL.SUB COURT, IRINJALAKUDA OS.2115/2006 of PRL.MUNSIFF COURT, IRINJALAKUDA .................... APPELLANT/APPELLANT/PLAINTIFF -------------------------------------------------- VIGNESWARAN S/O.IRUMPILLY PARAMBIL RAMAN,ASTAMICHIRA DESOM,VADAKKUMBAGHAM VILLAGE, MUKUNDPURAM TALUK, REPRESENTED BY HIS POWER OF ATTORNEY, HARIHARAN, S/O.PERUMANATH KUTTAPPAN, KIZHEKKEPPATTUKARA DESOM,CHEMBUKAVU VILLAGE, THRISSUR TALUK. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): RESPONDENTS/LEGAL HEIRS OF THE DECEASED ORIGINAL DEFENDANT ------------------------------------------------------------------------------------------------------------------ 1. SHEELA W/O.LATE MATHEWS, PALLIPADAN HOUSE, TAZHEKKADU P.O.VILLAGE & DESOM.686697 2. ROMY S/O.LATE MATHEWS, PALLIPADAN HOUSE, TAZHEKKADU P.O. & VILLAGE & DESOM.686697 3. RAIMY D/O.LATE MATHEWS, PALLIPADAN HOUSE, TAZHEKKADU P.O. & VILLAGE & DESOM.686697 4. BINDU D/O.LATE MATHEWS, PALLIPADAN HOUSE, TAZHEKKADU P.O. & VILLAGE & DESOM.686697 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 888 OF 2011 =========================== Dated this the 3rd day of October,2011 JUDGMENT Plaintiff in O.S.No.2115/2006 on the file of Munsiff Court, Irinjalakuda is the appellant. Appellant was admittedly the owner of the plaint schedule property. Under Ext.B1 registered sale deed 1925/1997 appellant transferred the property in favour of the deceased defendant for the consideration shown therein. Suit was filed later seeking a decree for specific performance of an oral agreement alleging that the consideration shown in Ext.B1 was actually the money borrowed by the appellant from the defendant and at the time of the borrowal there was an agreement between the appellant and the defendant whereunder appellant agreed to execute a sale deed in favour of the defendant and the defendant in RSA No.888/2011 2 turn agreed to reconvey the property on payment of the amount borrowed with interest by the appellant. Though appellant was prepared to pay the amount borrowed with interest and requested the defendant to execute the sale deed, he was not prepared for the same. Respondent instituted O.S.1763/2006, a suit for permanent prohibitory injunction on the allegation that he is in possession of the property and appellant attempted to trespass into the property. The suit was later abandoned. Appellant contended that though a sale deed was executed, possession of the property was never handed over to the defendant and therefore there was no completed sale and in such circumstances he is entitled to a decree for specific performance of an agreement for reconveyance as he has always been ready and willing to perform his part of the agreement. Defendant resisted the suit contending that the plaint schedule property was purchased by him for valid consideration under Ext.B1 sale deed and title and possession was passed on to the RSA No.888/2011 3 respondent thereunder and there was no agreement as alleged by the appellant. It was contended that defendant never agreed to reconvey the property and the consideration shown in Ext.B1 was not the amount borrowed by the appellant and instead the consideration for the property assigned and therefore appellant is not entitled to the decree for specific performance of the agreement which does not exist. 2. Learned Munsiff on the evidence of Pws.1and 2, DW1, Exts.A1, A2, B1 to B5 and Ext.C1 report dismissed the suit holding that appellant did not establish the agreement alleged in the plaint. Appellant challenged the decree and judgment before Sub Court, Irinjalakuda in A.S.144/2008. Defendant died during the pendency of the appeal. His legal heirs were impleaded as additional respondents 2 to 5. Learned Sub Judge on reappreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. RSA No.888/2011 4 3. Learned counsel appearing for the appellant was heard. 4. The argument of the learned counsel is that the sale under Ext.B1 was not completed and as provided under section 54 of the Transfer of Property Act sale would be completed only on handing over possession of the property and though Ext.B1 recites that possession was handed over, possession was never handed over and courts below did not properly consider the question of possession. Learned counsel argued that the defendant had originally instituted O.S.1763/2006 a decree for injunction contending that he is in possession of the property, but that suit was abandoned after the original of Ext.A1, report was submitted by the Commissioner showing that he was not in possession of the property. It was argued that Ext.A1 and C1 establish that there is no demarcating boundary between the plaint schedule property and the remaining undisputed property of the appellant and in the light of the evidence RSA No.888/2011 5 courts below should have found that there was an oral agreement for resale of the property transferred under Ext.B1 as claimed by the appellant and Ext.B1 was executed only to enable the appellant to borrow Rs.25,000/- from the defendant and it was never intended to transfer the property and the defendant had agreed to reconvey the property on payment of the amount borrowed with interest and therefore the decree and judgment passed by the courts below are unsustainable. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. The suit is not for a declaration that Ext.B1 sale deed is void or that it was never intended to be acted upon. The suit is only for specific performance of an oral agreement for sale. The oral agreement for sale alleged by the appellant was entered into by the appellant and the respondent prior to the execution of Ext.B1 sale RSA No.888/2011 6 deed. According to the appellant, he wanted a loan of Rs.25,000/- and approached the defendant and defendant agreed to pay the money provided appellant executes a sale deed and promised to execute a sale deed reconveying the same as and when the amount with interest is paid. According to the appellant, accepting the promise, he executed Ext.B1 and there was an oral agreement between the appellant and the defendant to reconvey the property on payment of consideration shown therein with interest. Therefore the appellant could succeed in the suit only on establishing the existence of the alleged oral agreement which was denied by the defendant. 7. Learned Munsiff and the learned Sub Judge on proper appreciation of the evidence entered a factual finding that appellant did not succeed in establishing an oral agreement. If there was an agreement as claimed by the appellant and appellant executed executed Ext.B1 sale deed based on the agreement, nothing prevented the parties to enter RSA No.888/2011 7 a written agreement. If the case of the appellant is to be accepted, defendant paid him money on getting the plaint schedule property as security. Instead of getting a document as security, a sale deed was insisted and appellant executed. In the normal course if the property is to be conveyed as security for repayment of the loan borrowed by the appellant, there was no necessity for executing a sale deed ;instead a mortgage deed would have been sufficient. There is no explanation for the departure in this case. Apart from the interested version of the appellant, which was contradicted by the defendant, there is absolutely no evidence to prove that there was an oral agreement, which was sought to be performed by the decree. In the light of the evidence on record and the admitted facts, the factual findings of the courts below is perfectly correct. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- RSA No.888/2011 8 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006