IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 RSA.No. 924 of 2011() --------------------- AS.25/2008 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR OS.575/2000 of PRL.MUNSIFF COURT,THRISSUR .................... APPELLANT/RESPONDENT/PLAINTIFF ------------------------------------------------------------ BABUKUTTAN, S/O.PANDARIKKAL KUNJAMMA, ARANATTUKARA VILLAGE, KARYATTUKARA, THRISSUR TALUK. BY ADV. SRI.V.BINOY RAM RESPONDENT: APPELLANT/DEFENDANT ------------------------------------------------------------- SIVARAJAN, S/O.PANDARIKKAL KUNJAMMA, ARANATTUKARA VILLAGE, KARYATTUKARA, THRISSUR TALUK, P.O.ELTHURUTH, THRISSUR.680 611. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 924 OF 2011 =========================== Dated this the 23rd day of September,2011 JUDGMENT Plaintiff in O.S.575/2000 on the file of Principal Munsiff's Court, Thrissur is the appellant. Defendant is the respondent. Appellant and respondent are brothers. Suit was filed for specific performance of Ext.A1 agreement for sale allegedly executed by the respondent agreeing to sell the plaint schedule property in favour of the appellant for a consideration of Rs.6000/- per cent. According to the appellant, he paid Rs.15,000/- towards part of the consideration as advance on 20.10.1999 and respondent received the same and agreed to execute the sale deed in his favour within a period of three months. Inspite of the demand, respondent failed to execute the sale deed. Appellant contended that he has RSA 924/2011 2 always been ready and willing to perform his part of the agreement and respondent wilfully not executed the sale deed and therefore he is entitled to the decree for specific performance of agreement for sale. 2. Respondent resisted the suit contending that he did not agree to sell the plaint schedule property to the appellant and did not receive any advance and did not execute Ext.A1 agreement. It was contended that the signature seen in Ext.A1 is not his signature and he was on inimical terms with the appellant and had instituted O.S.1092/1992, a suit for injunction against the appellant, which was subsequently decreed and the respondent never agreed to assign the property in favour of the appellant. 3. As the respondent denied his signature in Ext.A1 at the instance of the appellant Ext.A1 was sent to Forensic Science Laboratory, Trivandrum to compare the signature seen therein with the admitted and specimen signatures of the respondent collected from the court. Ext.X1 report was RSA 924/2011 3 furnished by the expert stating that no definite conclusion could be arrived at on comparison of the signature. Appellant was examined as PW1 and the attesting witness to Ext.A1 was examined as PW2. Respondent was examined as DW1. Learned Munsiff on the evidence granted a decree directing the respondent to execute a sale deed, on deposit of the balance consideration, finding that evidence of Pws.1 and 2 establish that Ext.A1 agreement was executed by the respondent and an advance of Rs.15,000/- as shown in the document was received by him and appellant has always been ready and willing to perform his part of the agreement. Respondent challenged the decree before District Court, Thrissur in A.S.25/2008. Learned Additional District Judge on reappreciation of the evidence, set aside the findings of the learned Munsiff and dismissed the suit. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant was heard. 5. The argument of the learned counsel is that RSA 924/2011 4 first appellate court did not properly appreciate the evidence. Learned counsel argued that though the relationship between the appellant and the respondent were strained after the institution of the suit in 1992 by the respondent against the appellant, as deposed by DW1, their relationship were cordial in 1997 and it was subsequently got strained only in 1999 when the respondent refused to comply with the conditions provided in Ext.A1 agreement and therefore on the evidence first appellate court was not justified in holding that respondent would not have agreed to sell the property to the appellant. Learned counsel argued that though Ext.X1 report of the expert does not conclusively show that signature of the respondent seen in Ext.A1 is actually his signature, PW1 has explained its reason as the specimen signatures given by the respondent were not his normal signatures. Learned counsel argued that there is no reason to disbelieve the evidence of PW2 and the evidence of PW2 establish that Ext.A1 agreement was executed by the respondent on receipt of RSA 924/2011 5 Rs.15,000/- as advance being part of the sale consideration. It is therefore argued that the findings of the first appellate court is not sustainable, in the light of the evidence on record. Learned counsel made available the photocopy of Ext.A1 as well as the depositions of the witnesses. 6. On going through the evidence made available by the learned counsel and hearing the counsel, I do not find any substantial question of law involved in the appeal. 7. Respondent has denied execution of Ext.A1 agreement. It is therefore upto the appellant to prove that respondent executed Ext.A1 agreement and he agreed to sell the plaint schedule property and received Rs.15,000/- being part of the sale consideration. As stated earlier, appellant and respondent are direct brothers. It is admitted by the appellant as PW1 that respondent instituted O.S.1092/1992 before Munsiff Court, Thrissur in respect of 16 cents belonging to him, seeking a decree for injunction restraining appellant from RSA 924/2011 6 trespassing into the said property. The five cents involved in Ext.A1 agreement is admittedly part of the plaint schedule property in O.S.1092/1992. Exts. B6 decree and B7 judgment in O.S.1092/1992 establish that learned Munsiff granted a decree in favour of the respondent restraining the appellant herein from trespassing into the plaint schedule property therein, which includes the property covered under Ext.A1. That decree was passed on 9.3.1995. The evidence of PW1 establishes that subsequent to the filing of O.S.1092/1992 the relationship between the appellant and respondent were strained. Evidence of PW1 is that they were on worst inimical terms. True, PW1 claimed that subsequent to the death of the mother in 1997 the relationship were cordial and it continued till 1999 and got strained thereafter. But respondent as DW1 denied it and deposed that he did not even talk to PW1 during this period. The question is in the normal course, when a decree for injunction was granted by a court against the appellant and in favour of the RSA 924/2011 7 respondent in respect of 16 cents of property in O.S.1092/1992, and a portion of that property was agreed to be sold in favour of the appellant by the respondent, whether existence of the decree against the appellant would be suppressed in the agreement for sale. If Ext.A1 is a genuine agreement, when a decree for injunction is subsisting against the appellant in respect of the property agreed to be sold under Ext.A1, in the normal human behaviour, it would specifically be averred in the agreement that though there was a suit instituted by the respondent against the appellant and a decree for injunction is subsisting, respondent has agreed to sell part of that property and executed the agreement. Ext.A1 is silent about the institution of a suit by the respondent or the subsisting decree. That itself is a ground to suspect the genuiness of Ext.A1 agreement. 8. Ext.A1 agreement shows that it was written by a scribe Dharmapalan. He was not examined. Evidence of PW1 corroborated by PW2 is that the RSA 924/2011 8 scribe was not present at the time of execution of the agreement. Evidence of PW1 is that he got the stamp paper necessary for writing Ext.A1, purchased by the scribe and got it prepared and thereafter got executed from his house on 20.10.1999. If that be so, it is clear that the scribe prepared Ext.A1 agreement, providing for the presence and signature of two witnesses as attestors. The document shows that after writing witnesses, the scribe has written 1 and 2 specifically to enable the attesting witnesses to sign therein. If that be so, in the normal course, PW1 would definitely request the presence of two witnesses at the time of execution of Ext.A1. He would have ensured the presence of two witnesses. Though PW2 admitted that he signed in Ext.A1 as a witness and had seen the respondent and the appellant affixing their signatures in Ext.A1, even PW2 has no case he was requested by PW1 or the respondent to be present there to witness the execution. Evidence of PW2, if believed, would only show that he accidently came there and happened to witness the execution. RSA 924/2011 9 That will not be the case if Ext.A1 is a genuine agreement. When the evidence is appreciated in this background, finding of the first appellate court that Ext.A1 agreement was not proved to be executed by the respondent is perfectly correct. Though PW2 deposed in favour of the appellant a reading of the evidence of PW2 establish that he is not a trustworthy witness and depose in favour of the appellant, because of their relationship. In such circumstances, when the factual finding of the first appellate court is just and proper and is in accordance with the evidence, the appeal can only be dismissed. The appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006