IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 OP(C).No. 3032 of 2011(O) ---------------------- OS.353/2009 of PRL.SUB COURT, IRINJALAKUDA .................. PETITIONERS : -------------------- 1. LENIN, S/O. THUMBARATHI KITTAPPAI, CHUNGAL DESOM, MATTATHOOR VILLAGE, MUKUNDAPURAM TALUK, PIN-680 692. 2. OMANA, W/O. THUMBARATHI LENIN, CHUNGAL DESOM, MATTATHOOR VILLAGE, MUKUNDAPURAM TALUK, PIN-680 692. BY ADVS. SRI.MURALI PURUSHOTHAMAN SRI.DEEPU LAL MOHAN SMT.S.LEENA RESPONDENT(S): -------------------------- 1. CHANDRAN, S/O. VAIKKATH PARUKUTTY AMMA, NEDUPUZHA DESOM, KANIMANGALAM VILLAGE, THRISSUR TALUK-680 027. 2. RAPPAI, S/O. KALLARAKKAL OUSEPH, CARMAL PARK, CHEMBUKKAVU VILLAGE, THRISSUR TALUK-680 020. R2 BY ADV. SRI.JIJO PAUL THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 3032 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : THE PHOTOCOPY OF THE PLAINT IN OS NO.353/09 ON THE FILES OF THE PRINCIPAL SUBORDINATE COURT, IRINJALAKUDA. EXT.P2 : THE PHOTOCOPY OF THE WRITTEN STATEMENT JOINTLY FILED BY THE DEFENDANTS IN OS NO.353/09 ON THE FILES OF THE PRINCIPAL SUBORDINATE COURT, IRINJALAKUDA. EXT.P3 : THE PHOTOCOPY OF THE INTERLOCUTORY APPLICATION DATED 19.7.2010 FILED BY THE PLAINTIFFS AS IA NO.2551/2010 IN OS NO.353/09 ON THE FILES OF THE PRINCIPAL SUBORDINATE COURT, IRINJALAKUDA. EXT.P4 : THE PHOTOCOPY OF THE OBJECTION DATED 30.8.2010 FILED BY THE DEFENDANTS IN IA NO.2551/2010 IN OS NO.353/09 ON THE FILES OF THE PRINCIPAL SUBORDINATE COURT, IRINJALAKUDA. EXT.P5 : THE PHOTOCOPY OF ORDER DATED 20.7.2011 OF THE PRINCIPAL SUBORDINATE COURT, IRINJALAKUDA IN IA NO.2551/2010 IN OS NO. 353/2009. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.S. TO JUDGE Mn THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3032 of 2011 ==================================== Dated this the 21st day of October, 2011 J U D G M E N T Respondents are served but there is no response. 2. Petitioners are the plaintiffs in O.S. No.353 of 2009 of the court of learned Sub Judge, Irinjalakuda. That is a suit filed by them against respondents for specific performance of an alleged oral agreement for re-conveyance of the property belonging to the first petitioner. According to the petitioners they had a loan transaction with the second respondent and as instructed by the second respondent, the document of sale was executed in favour of the first respondent as security for repayment of the loan with no intention to convey title. At the time of execution of the document there was an oral agreement between the parties as per which respondents agreed to re-convey the property on payment of the loan amount. Petitioners say that they were willing to discharge liability under the loan transaction but respondent resiled from the oral agreement for re-conveyance. Hence the suit. Respondents filed Ext.P2, written statement denying existence of any such oral agreement and contended that property was O.P(C) No.3032 of 2011 -: 2 :- purchased as per the sale deed in question for valid consideration. Pending suit, petitioners filed Ext.P3, application for issue of a survey commission. That application was dismissed by Ext.P5, order which is under challenge. 3. It is contended by the learned counsel that it is without understanding the purport of Ext.P3, application and the necessity for a report and plan of the Advocate Commissioner assisted by a Surveyor that learned Sub Judge has dismissed Ext.P3, application. 4. In paragraph 5 of the order learned Sub judge has observed that since the suit is for specific performance of an alleged oral agreement for sale there is no need for identification of the property and that the case is ripe for trial. 5. To understand the contentions raised by petitioners it is necessity to refer the averments in the plaint. As per the plaint property belonged to the first petitioner and second petitioner is impleaded in the suit since she is a party to the loan transaction. It is the contention of petitioners that the sale deed was not executed intending to convey right, title, interest or possession to the respondents and that it was merely executed as a security for due repayment of the loan on the understanding O.P(C) No.3032 of 2011 -: 3 :- that on the discharge of the liability the property will be re- conveyed to the petitioners. In paragraph 11 of Ext.P1, plaint it is stated that on a perusal of the copy of sale deed, it was revealed that in that document, more extent of the property than legally entitled to the first petitioner is mentioned and that boundaries of the property described in schedule to the sale deed did not tally with the boundaries at spot. The statement in paragraph 15 of the plaint is that the plaint schedule is stated in such a way as to tally with the schedule of the sale deed in question where more extent than to which first petitioner is not entitled is included. Learned counsel for petitioners contended that if property to which the first respondent is entitled as per the document is identified with the assistance of a Surveyor it could be revealed that there is discrepancy in the extent of property belonging to the first petitioner and mentioned in the sale deed. It will also be revealed that boundaries mentioned in the schedule of the sale deed did not tally with the boundaries at spot. According to the learned counsel, in between the property shown in the scheduled to the sale deed and the road described as the northern boundary, there is a plot of land belonging to the first petitioner. Thus it is contended that description of the O.P(C) No.3032 of 2011 -: 4 :- boundaries shown in the sale deed are not correct. 6. True that ordinarily in a suit for specific performance it is not necessary to appoint a survey commission. For, what the court is concerned is only whether the agreement in question is enforceable as claimed by the plaintiffs or not. It is also true that in such cases if a decree for specific performance is granted it is within the power of the court to identify the property in the course of execution or even on the trial side after sale deed is executed pursuant to the agreement for sale and the decree. 7. In the present case, that is not the purport of the application. The attempt of petitioners as understand from Ext.P3, application and the submissions made by the learned counsel is to show that there was no intention to transfer right, title, interest and possession of the property to the first respondent by the sale deed in question, the sale deed was executed merely as a security and that is why the discrepancies which petitioners allege and stated above crept in the sale deed. Viewed in that line I am not inclined to think that a report and plan as requested for is wholly irrelevant. How far the report and plan would be helpful to prove the case of petitioners is a matter which learned Sub Judge has to decide and on which I O.P(C) No.3032 of 2011 -: 5 :- am not required to express any opinion. No do I do so. Having regard to the circumstances stated petitioners must be given opportunity to adduce evidence in the way they have requested for in Ext.P3. Hence Ext.P5, order is liable to be set aside. Original Petition is allowed. Ext.P5, order is set aside. Exhibit P3, application is allowed. Learned Sub Judge is directed to appoint an Advocate Commissioner to be assisted by a Surveyor submit report and plan as prayed for in Ext.P3. Batta payable to the Commissioner and Surveyor shall be fixed by the learned Sub Judge. THOMAS P. JOSEPH, JUDGE. vsv