IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 SA.No. 28 of 1998(C) -------------------- AS.83/1994 of DISTRICT COURT, ALAPPUZHA OS.46/1988 of SUB COURT, CHERTHALA .................... APPELLANT(S): (APPELLANT IN THE APPELLATE COURT AND PLAINTIFF IN THE TRIAL COURT): --------------------------------------------------------------------------- SIVAPRASAD, S/O.KUMARAN, THOTTUNKAL, PADINJATTUMKARA, VADAKKUM MURI, THURAVUR NORTH. BY ADV. SRI.V.L.SHENOY RESPONDENT(S): (RESPONDENTS IN THE APPELLATE COURT AND DEFENDANTS 2 AND 3 IN THE TRIAL COURT): ------------------------------------------------------------------------------------------------ 1. SANTHAMMA, D/O.GOWRI, RESIDING AT ANAKOTTIL FROM KURAVAMPURATH, KODAMTHURUTH MURI, THURAVUR NORTH VILLAGE, CHERTHALA TALUK. 2. KARTHIKEYAN, S/O.PURUSHOTHAMAN, KUNNATHU CHIRAYIL, PADINJATTUMKARA VADAKKUM MURI, THURAVUR NORTH VILLAGE, CHERTHALA TALUK. R1 BY ADV. SRI.SUNI M.D. R2 BY ADVS. SRI.G.GOPAKUMAR (CHERTHALA), SRI.RASHEED C.NOORANAD. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ---------------------------- S.A.No. 28 of 1998 --------------------------------- Dated this the 17th day of February, 2011 JUDGMENT The plaintiff in O.S.No.46/1988 before the Sub Court, Cherthala is the appellant. The suit is one for specific performance of an agreement of sale. 2. According to the plaintiff as per Ext.A2 agreement dated 22.04.1988 the defendants 1 and 2 agreed to sell 6½ cents at the rate of Rs.3,000/- per cent to him and period of agreement was one month, which was subsequently extended by another month. The allegation in the plaint is that during the currency of the agreement, the defendants 1 and 2 with ulterior motive entered into an agreement for sale with the third defendant and later sold the property to him. The plaintiff claimed that such a sale cannot be valid, he is entitled to get specific performance of Ext.A2 agreement. 3. The defendants 1 and 2 remained exparte. The third defendant got himself impleaded and contested the suit. He pointed out that he was unaware of any agreement in favour of the plaintiff by defendants 1 and 2 and that he has bonafide entered into the transaction with the second defendant. He thus sought to sustain the assignment in his favour as per Ext.B1 dated 30.08.1988, which was S.A.No. 28 of 1998 2 preceded by an agreement namely Ext.B3 dated 10.06.1988. On the basis of these contentions, he prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 4 and documents marked as Ext.A1 to A7 from the side of the plaintiff. The contesting third defendant examined as DW1 and DW2 and had Exts. B1 to B7 were marked. 5. The trial court was sceptical about Ext.A2 agreement and found in favour of the third defendant. Therefore, the relief of specific performance was declined but return of the advance amount was decreed in favour of the plaintiff. The plaintiff took up the matter in appeal as A.S.83/1994 before the District Court, Alappuzha. The lower appellate court on an revaluation of the evidence concurred with the trial court and dismissed the appeal. Hence the second appeal. 6. Notice has been issued on the following substantial questions of law: 1. Whether on the facts and in the circumstances of the case the courts below are justified in refusing a decree for specific performance of an agreement for sale when the plaintiff proved the plaint agreement (Ext.A2) to the satisfaction of the court on the basis of evidence on record. 2. Whether the courts below are justified in refusing decree for specific performance of an agreement for sale without recording special and genuine reasons to refuse the relief. 7. The learned counsel appearing for the appellant contended S.A.No. 28 of 1998 3 that both the courts below have erred in law and on facts in declining the relief of specific performance to the plaintiff. According to the learned counsel the courts below have omitted to note that the burden is on the third defendant to show that he is a bonafide purchaser without the knowledge of the agreement infavour of the plaintiff. The learned counsel would contend that instead the burden has been thrown on the plaintiff and that had resulted in miscarriage of justice. It is also contended that a person who purchases property being fully aware of the earlier agreement is not entitled to the protection of Section 19 (b) of the evidence Act as well as Section 52 of the Transfer of Property Act. The learned counsel for the appellant also emphasised that the first, second and third defendants are closely related to each other and that speaks volumes about the transaction between them and there is considerable evidence that the transaction between defendants 1, 2 and 3 was one with the only intention to defeat the rights and interest of the plaintiff. 8. The learned counsel appearing for the respondent on the other hand pointed out that the courts below have analysed the evidence in considerable detail and have come to the conclusion that Ext.A2 is a suspicious document. It is also pointed out that the agreement in favour of the plaintiff was written on a white paper and it is to difficult to believe that such a document would have been S.A.No. 28 of 1998 4 executed by the plaintiff is the transaction was true. These facts had weighed with the trial court as well as the lower appellate court and courts were not convinced enough that the claim made by the plaintiff is true. The findings arrived by the courts below are based on an appreciation of evidence and it is not shown that the findings are either perverse or unwarranted by evidence on record. Therefore, according to the learned counsel no interference is called for under Section 100 of CPC. 9. Ext.A2 is the agreement on the basis of the suit is laid that is on a white paper. It is not on stamp paper nor is it sufficiently stamped. Strangely enough it was admitted in evidence. 10. The defendant on the other hand relies on Ext.B3 agreement dated 10.06.1998 which is written on a stamp paper. The defendant has sworn to the fact that he was unaware the agreement between the plaintiff between plaintiff and defendants 1 and 2. Even though the plaintiff claimed that he had informed the third defendant about the agreement in his favour, there is little evidence in that regard. The findings of the lower trial court that draft Ext.A2 must have been written after Ext.B3 agreement cannot said to be unsustainable. The scribe for the two documents are two different persons. S.A.No. 28 of 1998 5 11. It is also come out in evidence that there were several suits between parties to the suit and their predecessors regarding the title as well as seeking relief against the alienation of the property. These suits may not have much reliance except for the purpose of ascertaining whether there was any malafides on the part of the defendants 1 and 2 to get over Ext.A2 agreement. In order to come to such a conclusion, Ext.A2 agreement has to be a genuine one. 12. It is very difficult to believe that the plaintiff would have been satisfied with an agreement on a white paper wherein it had to be on a stamp paper or the sufficient stamp is affixed to the agreement. Next is the tracing of title in Ext.A2. Both defendants 1 and 2 claim right to suit property and entered into Ext.A2 agreement. Ext.B1 partition deed shows that the suit property was set apart to the second defendant alone. Finally the statement by plaintiff while in the box that he had not cared to verify the title of the assignors before ruling into Ext.A2 agreement appears to be very odd. A person who intends to purchase a property will certainly ensure that the vendor has title to the property. 13. Apart from the circumstances the courts below have also noticed certain facts which could caused serious suspicious about Ext.A2 agreement. Third defendant is closely related to defendants 1 and 2. But that cannot be the sole criterion to evaluate the S.A.No. 28 of 1998 6 genuineness of Ext.A2. 14. In the above circumstances, it is not necessary to refer to the decision relied on by the learned counsel for the appellant for the proposition that the transfere pendente lite claims better right unless it is shown that he had no knowledge about the previous agreement and that the burden is on subsequent assignees. 15. Both the courts below have on a detailed examination of the evidence come to the identical conclusion that Ext.A2 agreement does not appear to be a genuine document and expressed the opinion that in all probability it was executed to get over Ext.B3 agreement in favour of the third defendant. The result is that the appellant is unable to show that the finding of the court below either perverse or against the evidence on record. No substantial questions of law arises for consideration in the second appeal. The second appeal is without merits and accordingly it is dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln