IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 AS.No. 360 of 1999(D) --------------------- AGAINST THE JUDGMENT DATED 14.12.1998 IN OS. 415/1995 AND OS.304/1997 of I ADDL.SUB COURT, KOZHIKODE AS.60/1999 of D.C. & SESSIONS COURT,KOZHIKODE .................... APPELLANT/DEFENDANT: -------------------------- K.P.SUBRAMANIAN, S/O.CHOYI, AGED 60 YEARS, RESIDING AT KATTIPARAMBATH HOUSE IN NADUVATTOM AMSOM AND DESOM OF KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV. MR.K.P.DANDAPANI, SENIOR ADVOCATE MR.TOM.K.THOMAS RESPONDENT/PLAINTIFF: ---------------------------- MOYINHI.V, AGED 55 YEARS, S/O.BEERAN, RESIDING AT VALIYAKATH HOUSE NADUVATTOM AMSOM AND DESOM OF KOZHIKODE TALUK, KOZHIKODE DISTRICT. ADV. MR.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE MR.KODOTH PUSHPARAJAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/01/2010, ALONG WITH AS NO.543 OF 2001 AND THE COURT ON DELIVERED THE FOLLOWING: AS.No. 360 of 1999(D) ORDER ON C.M.P.NO.2960/1999 IN A.S.NO.360/1999 DISMISSED. 27.1.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ----------------------------------- A.S.No.360 of 1999 - F and A.S.No.543 of 2001 - A --------------------------------- Dated this the 27th day of January, 2010 J U D G M E N T The decree and judgment passed in O.S.No.304 of 1997, originally filed as O.S.No.275 of 1994 and O.S.No.415 of 1995 are under challenge in the above appeals respectively. The appellant in both appeals are the same person, who is the plaintiff and defendant in O.S.No.304 of 1997 and O.S.No.415 of 1995 respectively. O.S.No.304 of 1997 was originally filed for permanent injunction. Subsequently, the plaint was amended and converted into a suit for recovery of possession on the strength of title. The connected suit O.S.No.415 of 1995 was filed by the defendant in O.S.No.304 of 1997. The said suit is one for specific performance of contract of sale and alternate relief of return of advance amount. The court below jointly tried both suits and a common judgment was passed. Court below decreed the suit for specific performance and dismissed the connected suit filed for recovery of possession. Aggrieved by the A.S.Nos.360/99 & 543/01 2 common judgment and decrees passed in the respective suits, the above mentioned appeals are preferred. Parties hereinafter referred to as the plaintiff and defendant in accordance with their status in O.S.No.304 of 1997. 2. O.S.No.304 of 1997 was treated as the main case and the court below discussed the evidence in the said suit for convenience. The evidence consists of oral testimony of PW1 and DW1. Exhibits A1 to A7, B1 to B3 and C1 to C4 were marked. 3. Plaint A schedule property having an extent of 66 cents belongs to the plaintiff. Plaint B schedule property is a portion of plaint A schedule property situated on the north- eastern portion having an extent of 5 cents. Plaint B schedule property is agreed to be sold by the plaintiff to the defendant for sale consideration at the rate of Rs.7,000/- per cent and an agreement was executed between the parties on 12.8.1993. The parties agreed to execute the sale deed on or before 12.11.1993. On the date of the agreement the plaintiff received a sum of Rs.13,000/- as advance sale consideration. It is the case of the plaintiff that he was always willing and ready to perform his part A.S.Nos.360/99 & 543/01 3 of contract and ready to execute the sale deed in favour of the defendant on receipt of balance sale consideration. But the defendant prolonged the execution of the agreement and was not ready and willing to take assignment of the property in spite of repeated requests. According to the plaintiff, on 8.3.1996 pending suit, the defendant encroached into the plaint B schedule property and occupied the same. Hence the plaintiff was constrained to amend the relief sought in the plaint and sought recovery of plaint B schedule property with mean profits. 4. In the written statement filed, execution of the agreement, payment of advance sale consideration and the period fixed for agreement of sale are admitted. The defendant denied the allegations of the plaintiff that he had encroached into plaint B schedule property. The defendant's case is that the plaintiff had orally agreed to sell 10 cents of land out of plaint A schedule property at the rate of Rs.4,000/- per cent and towards sale consideration the defendant had paid Rs.13,000/- in the year 1989. The property was purchased for the purpose of constructing a house. At the time of the agreement in the year A.S.Nos.360/99 & 543/01 4 1989, 5 cents out of 10 cents was given possession and accordingly, he constructed a small shed in the property and started residing there. According to the defendant, the plaintiff informed him that the title deeds of the property was deposited with the bank in connection with the debt incurred by the plaintiff and hence sale deed could not be executed immediately. The defendant further urged that since he is an illiterate man he believed the words of the plaintiff. Subsequently, the plaintiff was not ready to perform his part of contract and therefore defendant lodged a complaint before the Sub Inspector of Police. As a result of mediation by the Sub Inspector of Police, the agreement dated 12.8.1993 was executed between the parties. At the mediation, the Sub Inspector of Police suggested that sale of 5 cents instead of 10 cents and the rate fixed in the presence of mediator was at Rs.7,000/- per cent. The sum of Rs.13,000/- which he had already paid was also recorded in the agreement. The agreement is marked as Ext.A3. In Ext.A3 agreement, plaintiff had agreed to provide a 3 feet width access along the eastern side of plaint A schedule property for the purpose of A.S.Nos.360/99 & 543/01 5 ingress and egress to plaint B schedule property. According to the defendant though he was willing to perform his part of contract the plaintiff did not come forward to execute the sale deed in favour of the defendant for one reason or other. 5. The connected suit, O.S.No.275 of 1994 renumbered as O.S.No.415 of 1995, was filed by the defendant for specific performance of contract of sale. The facts stated above are not seriously disputed by the parties. The main dispute raised in both suits is as to who had defaulted in performing the mutual obligations. The court below examined the issue on the basis of oral and documentary evidence adduced by the parties. Ext.A3 agreement clearly stipulate that the plaintiff agreed to sell 5 cents of land comprising in R.S.No.149/3 together with a right of access through a 3 feet width of pathway. It has come out in evidence that prior to Ext.A3 agreement, there was an oral agreement for sale and the plaintiff started occupation of the 5 cents and put up a shed and started residing in the said shed. It has also come out in evidence that on 12.8.1993 the dispute which had arisen between the parties are settled in the presence A.S.Nos.360/99 & 543/01 6 of the mediator, who is the Sub Inspector of Police. In the presence of the mediator, the parties executed Ext.A3 agreement and adjusted Rs.13,000/- already received by the plaintiff pursuant to the oral agreement executed prior to Ext.A3 agreement. Ext.A4 is the copy of the lawyer notice issued on behalf of the plaintiff on 17.11.1993. In the said notice the plaintiff had offered to execute the sale deed on payment of balance sale consideration. Again the plaintiff send a lawyer notice on 4.12.1993, marked as Ext.A6. In that notice also the plaintiff expressed his willingness to execute the sale deed. Only in the third lawyer notice issued on 24.1.1994, marked as Ext.A7, the plaintiff had cancelled the agreement and intimated the defendant about forfeiting the advance amount towards the loss sustained by him. Ext.B1 is the reply notice send by the defendant stating that the original agreement of the sale took place much earlier and that he had paid Rs.13,000/- and that the subsequent agreement was executed at the Beypore Police Station and that he is willing to pay the balance sale consideration. The defendant accused the plaintiff for not A.S.Nos.360/99 & 543/01 7 providing the pathway which he had agreed to provide and therefore he made it clear in the reply notice, unless the way is provided he will not be able to take assignment of the property. 6. The trial court after examining the oral and documentary evidence held that in the circumstances, the case set up by the plaintiff that the defendant had encroached into the property pending suit stands not proved. The court below accepted the case of the defendant that there was a prior agreement of sale and that he was put in possession of 5 cents of property pursuant to the oral agreement between the parties and he had put up a small shed where he started residing. It has also come out in evidence that both parties are poor and illiterate. Both sides have admitted the agreement and undertaken the sale and purchase of the property as stated in Ext.A3. Ext.A3 is the agreement which was drafted in the police station. Since both parties are illiterate they have subscribed only their thumb impression on the agreement. The evidence on record indicate that the plaintiff was residing in the property prior to O.S.No.304 of 1997. The court below concluded that there is sufficient A.S.Nos.360/99 & 543/01 8 indication that plaint B schedule property was handed over to the defendant pursuant to an oral agreement of sale and that the agreement was subsequently reduced to writing in the presence of the mediator on 12.8.1993. The court below also examined the contention of the plaintiff that the defendant was not ready and willing to perform his part of contract. There is no doubt that the agreement does not stipulate time as the essence of the contract and the conduct of the parties leads to such a conclusion. Taking in to all the aforesaid attendant circumstances including the mediation conducted at the instance of the Sub Inspector of Police and the non-resolution of the dispute regarding the access to the property, court below held that the plaintiff in O.S.No.304 of 1997 had committed breach of agreement and therefore he cannot unilaterally rescind the contract. Since time is not the essence of the contract, it is held that the plaintiff O.S.No.415 of 1995 is entitled to sue for specific performance of contract of sale. The court below also held that since the defendant established that he had constructed a small house in the property and he is residing therein in part A.S.Nos.360/99 & 543/01 9 performance of the contract, equity demands that he ought to have granted a decree for specific performance of the contract. The aforesaid facts and circumstances lead to the conclusion that the plaintiff in O.S.No.415 of 1995 is entitled to a decree for specific performance. I do not find any reason to interfere with the finding recorded by the court below. The view taken by the court below is the only view possible in the given circumstances. Learned counsel for the respondent submitted that the plaintiff in O.S.No.415 of 1995 had deposited Rs.35,000/- in the trial court. By an interim order, this Court directed that the said amount shall be deposited in a nationalised bank. It is reported that Rs.13,000/- more is deposited by the plaintiff in O.S.No.415 of 1995. Taking into account the fact that the value of the property has gone up considerably by the passage of time, in the interest of justice, this Court is of the view that the property owner, who is the plaintiff in O.S.No.304 of 1997 is entitled to receive the whole amount with interest accrued therein. In such circumstances, the defendant in O.S.No.415 of 1995 is entitled to receive the deposited amount of Rs.35,000/- plus the interest A.S.Nos.360/99 & 543/01 10 accrued therein. To that extent the decree passed by the court below is modified. In the result, the decree and judgment under challenge stands modified as above. No order as to costs. HARUN-UL-RASHID, JUDGE. bkn/- The common judgment dated 27.1.2010 in A.S.No.360/99 & A.S.No.543/01 is corrected by inserting the following sentence as the penultimate sentence. “The connected appeal, namely, A.S.No.543/2001 is dismissed”. Vide order dated 16.11.2010 in I.A.No.4189/2010 in A.S.No.360/99. sd/- Registrar (Judicial)