IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 RSA.No. 716 of 2011() --------------------- AS.2/2008 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.91/2007 of MUNSIFF COURT, PATHANAMTHITTA .................... APPELLANT/DEFENDANT --------------------------------------- V.A. DIVAKARAN, AGED 65 YEARS, S/O. AYYAPPAN, KALLUKALAYIL HOUSE, ELANTHOOR MURI, ELANTHOOR VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): PLAINTIFF ------------------------ RAMAKRISHNAN, AGED 48 YEARS,S/O.AYYAPPAN KALLUKALAYIL HOUSE, ELANTHOOR MURI, ELANTHOOR VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.716 of 2011 ............................................ DATED 25th JULY, 2011 JUDGMENT Defendant in O.S.91 of 2007 on the file of Munsiff Court, Pathanamthitta is the appellant. Respondent is the plaintiff. Respondent instituted the suit seeking a decree for specific performance of an agreement for sale and for a permanent prohibitory injunction. Plaint schedule property having an extent of 8 cents in survey No.178/13, resurvey No.19/1 of Elanthoor Village and 296/3, R.S.No.77/5 of Naranganam Village admittedly belonged to the appellant. Respondent contended that on 9.6.2005, as per an oral agreement, respondent agreed to sell the plaint schedule property for a consideration of Rs.1250/- per cent and Rs.8000/- towards sale consideration was paid as advance and respondent agreed to pay the balance consideration on or before 31.12.1995 and appellant agreed to execute the sale deed on receipt of the balance sale consideration. Respondent was put in possession of the property. He put up a small house and started residing there. On 15.12.1995, respondent RSA 716/2011 2 approached the plaintiff with the balance consideration. He refused to receive the same. Respondent sent a notice demanding execution of the sale deed after receipt of the balance consideration on 28.7.1997. Appellant received the notice but did not send a reply. Suit was thereafter instituted seeking a decree for specific performance of the agreement for sale and apprehending forcible eviction, a decree for injunction from forcible eviction. 2. Appellant resisted the suit contending that there was no agreement for sale and he did not receive any advance, as part of the sale consideration and at the request of the respondent, he was allowed to reside in the shed constructed by the appellant in the plaint schedule property in 1995 and he is continuing in possession of the property and respondent is not entitled to the decree for specific performance of agreement for sale and appellant has no intention to take forcible possession of the property. Appellant in turn instituted O.S.216 of 2002 seeking a decree for recovery of possession of the property. Respondent resisted that suit raising the very same contentions raised in O.S.91 of 2007. Both suits were tried jointly. 3. Learned Munsiff framed the necessary issues including RSA 716/2011 3 the question whether there has been an oral agreement for sale between the plaintiff and the defendant as alleged in the plaint and whether plaintiff is entitled to a decree for specific performance of the agreement. In O.S.216 of 2002 also, similar issue was raised viz, is there an agreement between the plaintiff and defendant as alleged by the defendant. Both the suits were jointly tried. Learned Munsiff on the evidence, found that there was an oral agreement for sale between the appellant and the respondent as claimed by the respondent and respondent is in possession of the property based on the agreement for sale and not as permitted by the appellant as claimed by him. Hence O.S.216 of 2002 was dismissed. A decree for specific performance of the agreement was granted directing the appellant to execute the sale deed in respect of the plaint schedule property, after receiving the balance consideration of Rs.2000/-. A decree for injunction was also granted restraining appellants from forcibly evicting the respondent from the plaint schedule property. Appellant did not challenge the decree in O.S.216 of 2002 and filed A.S.2 of 2008 before Additional District Judge, Pathanamthitta challenging the decree for specific performance of agreement for sale in O.S.91 of 2007. Learned RSA 716/2011 4 Additional District Judge, on reappreciation of evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that courts below did not properly appreciate the evidence and the finding that there was an oral agreement for sale is not supported by evidence. Learned counsel argued that evidence of the witnesses should not have been relied on by the courts below and on the evidence, it should have been found that respondent is in possession of the property only as permitted by the appellant and not under an agreement for sale. Learned counsel also argued that there was no specific pleading in the plaint that respondent has been ready and willing to perform his part of the agreement and therefore decree for specific performance of agreement for sale should not have been granted. 5. On hearing the learned counsel, I do not find any substantial question of law on the admitted facts. First of all, O.S.91 of 2007, suit for specific performance of agreement for sale was tried jointly with O.S.216 of 2002. O.S.216 of 2002 was instituted by the appellant seeking a decree for recovery of RSA 716/2011 5 possession contending that respondent was permitted to reside in the building belonging to the appellant and he is not entitled to continue in possession. That suit was resisted by the respondent contending that he is not in permissive occupation of the building but is in possession of the property under an oral agreement for sale and even the building was constructed by him. In such circumstances, issue No.1 was raised whether there is an oral agreement for sale as claimed by the respondent. In O.S.91 of 2007, the main question is whether there is an oral agreement for sale. Issue No.1 in both suits is regarding existence of the agreement for sale. Learned Munsiff as per the common judgment answered both the issues in both the suits in favour of the respondent holding that there was an agreement for sale. The appellant did not challenge the decree in O.S.216 of 2002. Hence the finding in the suit that there is an oral agreement for sale has become final. That finding will operate against the contentions raised in A.S.2 of 2008 as against the finding in O.S.91 of 2007 that there was an oral agreement for sale. Unfortunately, this aspect was omitted to be taken note of by the first appellate court. But as the finding in O.S.216 of 2002 that there exists an oral agreement for sale has become final, that aspect cannot be RSA 716/2011 6 challenged by the appellant. Hence that question will not arise for consideration in the second appeal. The only other question is whether respondent is entitled to the decree for specific performance of agreement for sale. Though there is no specific recital that respondent has been ready and willing to perform his part of the agreement, the allegation in the plaint itself shows that out of the sale consideration, he has paid Rs.8000/- at the time of the agreement and agreed to pay the balance amount. The allegation in the plaint is that he has met the appellant with the balance consideration but appellant did not receive the same. As notice was also sent evidenced by Ext.A1 receipt to prove that respondent has demanded execution of the sale deed. But appellant did not sent a reply also. Hence respondent need nothing further to establish his readyness and willingness. In such circumstances, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk