IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 AS.No. 207 of 1997() -------------------- OS.305/1994 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT/PLAINTIFF: --------------------------------- SASIDHARAN, S/O. KESAVAN, RESIDING AT ATHIYARATH, PUTHENVELIKKARA KARA, PUTHENVELIKKARA VILLAGE, PARUR TALUK. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN RESPONDENT/DEFENDANT: ---------------------------------------- JOSEPH ALIAS OUSEPPACHAN (WRONGLY SHOWN IN THE JUDGMENT AND DECREE OF THE COURT BELOW AS JOSEPH ALIAS OUSEPHAN), S/O. VARUTHUKUTTY ALIAS GEORGE, PULLAYIL, GOTHURUTHU MURI, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. ADV. SRI.R.REGHUNANDANA MENON FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON 12/10/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No. 207 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of October, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the plaintiff in O.S.No. 305 of 1994 on the file of the Sub Court, N.Parur. The respondent herein is the defendant in that suit, which was filed for specific performance of an agreement for sale. 2. The facts of the case according to the appellant are briefly as follows. As per partition deed of 1974, the plaint schedule property originally belonged to the defendant. An agreement for sale was executed by the defendant on 25.10.1993 in favour of the plaintiff for sale of the plaint schedule properties for a consideration of Rs.2,250/- per cent and received advance of Rs.20,000/- as security for the purpose of the contract. As per the terms of A.S.No. 207 of 1997 2 the agreement, the plaintiff is entitled to get the sale deed executed by deposit of the balance sale consideration in the court. If the plaintiff commits any breach, he will forfeit the advance amount. 3. Subsequently it was understood that the defendant has no ownership and right in the plaint schedule property. The defendant has title deed only for 24 cents. But the defendant never prepared to get the title deed for the remaining property. The agreement was executed on the understanding that the defendant has title over the plaint schedule property. Government has initiated certain proceedings against the defendant in respect of certain properties. When the plaintiff asked about that aspect, the defendant never replied the same. Plaintiff has sent a lawyer notice dt.24.4.94 asking the defendant to execute the sale deed in favour of the plaintiff. 4. In the reply notice, the defendant replied that he is ready to perform the contract in respect of 46.500 cents of A.S.No. 207 of 1997 3 property obtained by him as per the document No.443/74. This statement is not correct. In the notice it is further mentioned that the defendant is in possession of the tax receipt and encumbrance certificate with respect to the entire property. On 22.4.1994 also the defendant has sent another notice incorporating a statement that he is satisfied with the entire document. The plaintiff was ready and willing to perform his part of contract. But the defendant has no title over the plaint schedule property. He is ready to deposit the amount as and when required. The contract was not performed because of the fault committed by the defendant. Hence the suit was filed for specific performance of the contract or in the alternative to return the advance amount of Rs.20,000/- + 18% interest. 5. The defendant filed written statement raising the following contentions. He submitted that the suit is not maintainable. The fact that the sale agreement was executed is admitted. But the statement that the defendant has not satisfied A.S.No. 207 of 1997 4 the plaintiff about the liability of the property is incorrect. The encumbrance certificate was handed over to the plaintiff. Subsequently, on mutual understanding between the plaintiff defendant and Sebastian, the property was measured separating 30 cents and 46 cents by placing survey stones. 30 cent was sold in favour of Sebastian. An agreement between the plaintiff and defendant was entered into for the remaining 46 ½ cents. All other statements in the plaint are deliberately inserted for evading from the contract. 6. The defendant obtained the property as per document No.443/74. The defendant never made him to believe that he had more right than in the document mentioned above. The defendant is the owner of the entire property mentioned in the document. All the documents, including the prior documents and the encumbrance certificate, were handed over to the plaintiff. No eviction proceeding was initiated by the Government for A.S.No. 207 of 1997 5 eviction of the defendant from the plaint schedule property. The property was measured with the assistance of the surveyor. 7. On 14.4.1994, the plaintiff never sent any notice through any advocate. But on 22.4.1994 a notice inserting false statement was sent to the defendant. On 7.5.1994 a reply was sent to the plaintiff. On 22.4.94 another notice was sent. The statements in the notice are true and correct. The defendant expressed his willingness to give the property to the plaintiff. No contradictory statements were made in the notice. The defendant was present in the office of the Registrar on 25.4.1994. The readiness and willingness expressed by the plaintiff in the plaint is for the purpose of filing a suit against the defendant. The plaintiff has no cause of action to file the suit. False averments are inserted in the plaint for escaping from the performance of the contract. 8. In the Sub Court, PWs. 1 and 2 and DWs. 1 and 2 were examined and Exts.A1 to A6 and B1 and B7 and X1 were A.S.No. 207 of 1997 6 marked. The learned Sub Judge, on considering the evidence, disallowed the prayer for specific performance and the suit was decreed in part allowing the plaintiff to realise the advance amount of Rs.20,000/- together with interest at the rate of 6% p.a. from the date of the suit till the date of realisation from the defendant and his assets. Against that judgment and decree the plaintiff filed this appeal. 9. Heard the learned counsel for the appellant and the learned counsel for the respondent. 10. The learned counsel for the appellant submitted that the evidence on record shows that the appellant was always ready and willing to perform his part of the agreement and as such the learned Sub Judge ought to have decreed the suit for specific performance. 11. The above suit was filed by the plaintiff on 9.6.1994. Ext.A1 is the special Power of Attorney executed by the plaintiff in favour of PW1 on 15.2.1996 to conduct the case on behalf of A.S.No. 207 of 1997 7 the plaintiff. Ext.A2 is the photostat copy of the agreement for sale dt.25.10.1993 executed by the plaintiff and the defendant for sale of the plaint schedule property, which is having an extent of 46.5 cents comprised in Sy.No. 201A/56/55 and 27/25. The defendant obtained 76.5 cents of property as per Partition Deed No.443 of 1974. Out of that property, 30 cents was agreed to be sold to one Sebastian as per Ext.B4 agreement for sale dt.25.10.1993. As per the original of Ext.A2 agreement for sale, the defendant agreed to sell the remaining 46.5 cents to the plaintiff for a sale consideration of Rs.2,250/- per cent. As per the stipulations contained in ext.A2 agreement, the defendant has to measure out the plaint schedule property and to satisfy the plaintiff that the property is free from prior encumbrance within six months. 12. PW1 deposed that after execution of Ext.A2 agreement, the defendant was not able to satisfy the plaintiff about the title and liability on the property. PW1 deposed that A.S.No. 207 of 1997 8 four boundaries of the total extent of the property was measured by the Village Officer and 30 cents was sold by the defendant to Sebastian. PW1 further deposed that when the property was measured, the Village Officer told that there was kuthakapattom liability over the property, which was not cleared by the defendant and that after deducting the property covered by Kuthakapattom, the defendant had only 29.5 cents. PW1 deposed that the plaintiff was always ready and willing to perform his part of the contract and he does not know whether the property was measured by the Taluk Surveyor. 13. PW2, Village Officer, deposed that he does not know whether the plaint schedule property was included in the Kuthakapattom proceedings. Ext.A6 is the copy of the plaint in O.S.No. 175 of 1994 on the file of the Munsiff Court, N.Parur. That suit was filed by the defendant and his brothers against the Government for permanent prohibitory injunction with regard to A.S.No. 207 of 1997 9 'E' schedule property in the Partition Deed No. 443 of 1974, which was allotted to Rosakutty for her life interest. 14. When kuthakapattom proceedings were initiated against the property and after getting notice from the Government, the defendant and his brothers filed O.S.No.175 of 1994. The plaint schedule property in that suit is in Sy.No. 42, having an extent of 37 cents, which is 'E' schedule property in the Partition Deed. The plaint schedule property in the present suit is different from the plaint schedule property in O.S.No. 175 of 1994. Therefore, the testimony of PW1 that the plaint schedule property was the subject matter of kuthakapattom proceedings is not correct. The defendant was examined as DW1. He deposed that the properties covered by Exts.A2 and B4 agreements were measured out by the Village Officer and the Taluk Surveyor and Ext.B6 is the sketch prepared by the Taluk Surveyor. 15. DW1 deposed that at the time of measurement of the property, the plaintiff was present. DW1 deposed that the A.S.No. 207 of 1997 10 original of Ext.A2 is with the plaintiff and that the plaintiff is now residing at Puthenvelikkara and now working as an autorikshaw driver. DW2 is an attesting witness to Exts.A2 and B3 agreements. The plaintiff is an attesting witness to Ext.B4 agreement. DW2 deposed that the property covered by the agreement was measured out by the Village Officer and the Taluk Surveyor in the presence of the plaintiff and the plaintiff was convinced about the measurements. 16. The plaintiff has not gone to the witness box to deny this fact. Ext.B1 possession certificate issued by the Village Officer and Ext.B2 series encumbrance certificates would show that the plaint schedule property is free from encumbrance. Therefore, the case of the plaintiff that the defendant has no title over the entire plaint schedule property and that property is not measured is not correct. 17. In view of the evidence on record, the learned Sub Judge came to the conclusion that the plaintiff was not ready and A.S.No. 207 of 1997 11 willing to perform his part of the contract and the defendant was always ready and willing to perform his part of the contract. On going through the evidence on record, we are unable to arrive at a different conclusion. The learned Sub Judge is perfectly justified in rejecting the discretionary prayer for specific performance and allowing refund of the advance amount. 18. Accordingly, this appeal is dismissed. The judgment and decree in O.S.No. 305 of 1994 on the file of the Sub Court, N.Parur is confirmed. The parties are directed to suffer their respective cost in this appeal. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) tm Judge