IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 AS.No. 165 of 1995() -------------------- OS.172/1989 of SUB COURT, MANJERI .................... APPELLANT(S): PLAINTIFF: -------------------------------------------- THAYYIL MOIDEEN HAJI, SON OF MOHAMMED, RESIDING AT MELATTUR AMSOM, MANZHI DESOM, PERINTHALMANNA. BY ADVS. MR.V.G.ARUN, MR.T.R.HARIKUMAR. RESPONDENT(S): DEFENDANTS: -------------------------------------------------- 1. CHERKAYIL HAMSA HAJI, SON OF SAINUDDIN, RESIDING AT KARUVARAKUNDU, CHERAMBA DESOM, ERANAD TALUK. 2. KAROOR ALAVI HAJI, SON OF RAYINKUTTY, RESIDING AT KOTTOOR AMSOM IN PERINTHALMANNA. BY ADVS. MR.BABU S. NAIR, MR.JIJO PAUL. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.RAVINDRAN, J. ============= A.S.No.165 of 1995 (D) ===================== Dated this the 21st day of January, 2009. J U D G M E N T The plaintiff in O.S.No.172 of 1989 on the file of the Court of the Subordinate Judge of Manjeri is the appellant in this appeal. The respondents are the defendants therein. The suit instituted by the appellant for specific performance of Exhibit A1 agreement was dismissed by the trial court. Hence, this appeal. 2. The suit property is a parcel of land 11.43 cents in extent together with the building therein. In the plaint, the appellant contended that the first defendant had executed Exhibit A1 agreement dated 5-3-1985 as security for re-payment of the sum of Rs.65,000/- availed by him as loan from the plaintiff, agreeing to repay the loan on or before 30-10-1985; that he was put in possession of the suit property on the date of the agreement and that as per the terms of the agreement, if the A.S.No.165 of 1995 -: 2 :- loan amount is not repaid on or before 30-10-1985, the first defendant was bound to assign the suit property to him on receipt of the balance sale consideration. The plaintiff further alleged that the market value of the plaint schedule property will not exceed Rs.70,000/-; that he is ready and willing to pay the balance consideration of Rs.5,000/- to get the property assigned to him; that the father-in-law of the first defendant has, as his power of attorney, assigned the suit property to the second defendant and that the first defendant is bound to assign the suit property to the plaintiff on receipt of the balance sale consideration. The plaintiff prayed for a decree directing the first defendant or the second defendant as the case may be, to assign the suit property to him on receipt of the balance sum of Rs.5,000/- towards the sale consideration and to allow him to adjust the rent paid by the tenants of the shop rooms to the defendants towards the balance sale consideration and to pay him rent at the rate of Rs.870/- per mensem till the property is assigned to him. A.S.No.165 of 1995 -: 3 :- 3. The defendants contested the suit. The first defendant denied the execution of Exhibit A1 agreement and the receipt of the sum of Rs.65,000/-. He also contended that the plaintiff has filed O.S.No.662 of 1985 in the Court of the Munsiff of Manjeri against the defendants; that the said suit was instituted after fabricating the karar, with a view to prevent him from assigning the suit property to third parties. The second defendant contended inter alia that the first defendant had agreed to supply him 10 quintals of pepper at the rate of Rs.1,300/- per quintal; that the sale consideration of Rs.13,000/- was paid in advance; that the first defendant did not supply the pepper within the time stipulated and therefore, he assigned the suit property to the second defendant as per Exhibit B3 sale deed dated 10-2-1987 after receiving the balance sale consideration of Rs.36,000/-; that the plaintiff had thereupon filed O.S.No.211 of 1987 against him in the Court of the Munsiff of Manjeri and that the said suit was dismissed on 15-11-1988. He also contended that Exhibit B1 karar is a document concocted by the plaintiff for the purpose of the suit. A.S.No.165 of 1995 -: 4 :- 4. In the trial court, the plaintiff examined himself as PW1 and the mediator at whose instance Exhibit A1 agreement was executed as PW2. On the side of the defendants, first defendant was examined as DW1, the second defendant was examined as DW2 and Exhibits B1 to B10 were marked. The court below on an analysis of the evidence held that Exhibit A1 agreement is not genuine and that plaintiff was not put in possession of the suit property. It was held that the sale of the property as per Exhibit B3 sale deed is supported by the sale consideration. The trial court held that the plaintiff is not entitled to the reliefs prayed for. The suit was accordingly dismissed. 5. The trial court which had the opportunity to watch the demeanor of PW1 and PW2 has on an analysis of the pleadings and the evidence on record, held that the case of the plaintiff that Exhibit A1 was executed at the intervention of the mediators is not tenable. The testimony tendered by PW2 was not accepted for the reason that the plaintiff had no case that Exhibit A1 A.S.No.165 of 1995 -: 5 :- agreement was executed at the instance of mediators and also for the reason that PW2 is not a witness to Exhibit A1 agreement. The court below also repelled the plea of the plaintiff that the first defendant does not have a uniform signature and has the habit of affixing different signatures on different occasions. The court below also held that the plaintiff has not been able to prove that he had advanced a loan of Rs.65,000/- to the first defendant on payment of which Exhibit A1 agreement was executed. The court below also held that the plaintiff has not proved by producing his accounts that he had made any such payment to the first defendant. The case of the plaintiff that he was put in possession of the suit property was also repelled. The defendants plea that they are in possession of the suit property was accepted. In the light of the evidence, oral and documentary available in this case, the failure of the plaintiff to prove that he had advanced any amount as loan to the plaintiff and also the failure of the plaintiff to establish that Exhibit A1 agreement was executed by the first defendant, I am persuaded to agree with the court below that the plaintiff is not entitled to the reliefs A.S.No.165 of 1995 -: 6 :- prayed for. The plaintiff has also not proved that he had advanced loan amount to the first defendant and that Exhibit A1 agreement was executed on that occasion. Further, Exhibit B10 decree in O.S. No.211 of 1987 discloses that suit instituted by the plaintiff against the second defendant was dismissed for default on 15-11-1988. It cannot be said that the finding of the court below that the plaintiff has not proved the execution of Exhibit A1 agreement or the payment of the consideration mentioned therein to first defendant is not sustainable in the light of the evidence on record. I accordingly hold that there is no merit in this appeal. The appeal fails and is accordingly dismissed. Sd/- P.N.RAVINDRAN, Judge. skr // True copy // P.A. to Judge.