IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 RSA.No. 1225 of 2008() ---------------------- AS.74/2002 of SUB COURT, PAYYANNUR O.S. 131/2000 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT/APPELLANT/DEFENDANT --------------------------------------------------------- APPIAI AMBUKUNHI AGED 33 YEARS, S/O.JANAKI, RESIDING AT KUNIYAN, KARIVOLLUR AMSOM P.O.KARIVOLLUR, KANNUR DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT/RESPONDENT/PLAINTIFF -------------------------------------------------------- OLAKODAN MURALI AGE 43 YEARS, S/O.NARAYANI RESIDING AT KODAKKAD, P.O.KARIVOLLUR KANNUR DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDERIN I.A. NO. 2656 OF 2008 IN R.S.A. NO. 1225 OF 2008 DISMISSED. SD/- HARUN-UL-RASHID, JUDGE 06.07.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.1225 of 2008 ---------------------------------------- Dated this the 6th day of July, 2009 JUDGMENT 1. The Second Appeal is directed against the judgment and decree in A.S. No. 74/2002 on the file of the Sub court , Payyannur which arises from the judgment and decree in O.S. No. 131/2000 on the file of the Munsiff court, Payyannur. The respondent herein as plaintiff filed the said suit for specific performance of contract. The suit was decreed by the trial court and confirmed in appeal by the lower appellate court. The defendant in the suit is the appellant herein. The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. 2. It is the case of the plaintiff that the defendant agreed to sell the plaint schedule property to the plaintiff and executed an agreement for sale (Ext.A1) on 30.9.1999, for a total consideration of 22,000/.- and received Rs. 20,000/- as advance. Six months time was stipulated for the execution of Ext.A1 sale deed. According to the plaintiff, the defendant did not turnup for executing Ext.A1 sale deed and failed to perform his part. Therefore the suit was filed . 3. The defendant denied the alleged transaction and further contended that he never agreed to sell his property to the plaintiff and never executed any agreement for sale in favour of the plaintiff and that R.S.A. No.1225 of 2008 -2- the suit is mischievous. It is also contended by the defendant that Ext.A1 sale deed is a fabricated one. 4. The evidence in this case consists of the oral testimony of the plaintiff examined as PW1, Exts. A1 to A4 were marked on the side of the plaintiff. The plaintiff also got examined PW2 to PW4 on his side. The defendant got himself examined as DW1. No documents were marked on the defence side. 5. The trial court examined the evidence tendered by the parties and witnesses on the plaintiff's side. PW1 is the plaintiff, PW2 is the scribe PWs 3 and 4 are the attesting witnesses. The trial court was convinced on the basis of the oral evidence adduced by the plaintiff and and his witnesses, that Ext.A1 sale deed was executed by the defendant and the execution of the same is beyond the shadow of doubts. 6. The defendant's contentions were also examined by the trial court in detail. The trial court held that there is no evidence to believe that the defendant has probabilised his versions A decree for specific performance was passed directing the defendant to execute Ext.A1 sale deed after receiving the balance sale consideration of Rs.2,000/- 7. The contentions raised before the trial court were re-agitated by the defendant before the lower appellate court. The lower appellate court also re-examined the very same contentions and concluded that the plaintiff is entitled to get a decree for specific performance of Ext.A1 R.S.A. No.1225 of 2008 -3- agreement. The courts below examined the oral and documentary evidence adduced by the parties in detail ,and rightly held that the plaintiff is entitled to get a decree for specific performance of the contract Going by the evidence and principles discussed by the courts below, I am of the opinion that no other view is possible in the given circumstances,other than the views taken by the courts below. I find no reason to interfere with the findings entered by the courts below by invoking the jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No.1225 of 2008 ---------------------------- JUDGMENT 6th July, 2009