IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 AS.No. 264 of 2001(E) -------------------------------- OS.29/1987 of SUB COURT, PAYYANNUR .................... APPELLANT(S): PLAINTIFF -------------------------------------- THOTTUVELIL JOSEPH CHANDY, SECRETARY, ALAKODE CO-OPERATIVE BANK LTD., ALAKODE, RESIDING AT TALIPARAMBA AMSOM DESOM. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENT(S): DEFENDANTS ---------------------------------------------- 1. THAIPPADATH FRANCIS, VAIDIAR, SAINT MARTINS MARMA CHIKILASALAYAM, RESIDING AT TALIPARAMBA AMSOM DESOM. 2. ANNAKUTTY, W/O. FRANCIS THAIPPADATH, PUSHPAGIRI P.O., TALIPARAMBA. BY SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE BY ADVS. SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 264 OF 2001 = = = = = = = = = = = = = = = Dated this the 22nd day of September, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Payyannur in O.S.29/87. The suit is one for specific performance of a contract. It is the case of the plaintiff that the first defendant had agreed to sell him the property described in Ext.A1 agreement and has failed to perform his part of his contract and hence the suit. The first defendant would contend otherwise, taking the contention that the document itself is vitiated by undue influence etc. The property does not belong to him but it belongs to his wife, the 2nd defendant and therefore the plaintiff is not entitled to any decree for specific performance. By the first A.S. 264 OF 2001 -2- judgment a decree was granted in favour of the plaintiff. Against the same the defendants moved an appeal before this Court as A.S. 119/89. The learned judge of this Court by a detailed judgment set aside the judgment and decree and remanded the case to the trial court. The crux of the matter is as follows. 2. The lower Court will identify the suit property and check whether any portion under Ext.B2 properties are taken in by the same. Thereafter it will proceed to answer the issues. This Court also made it very clear the first defendant cannot re-agitate the plea of undue influence before the trial court. Thereafter the learned Subordinate Judge considered the matter and had dismissed the suit. It is against that decision the plaintiff has come up in appeal. A.S. 264 OF 2001 -3- 3. At the out set I may like to state that the parties have more succeeded in confusing rather than helping the Court to resolve the issue. Whatever it may be, it is the duty of the Court to find a solution. Now the point to be determined is very simple. The 2nd defendant gets the property under Ext.B2 in 1977. Subsequently the first defendant gets the property under Ext.B1. Now the contention is the subject matter of the agreement namely Ext.A1 is a property covered under Ext.B2 over which the first defendant has no right for an agreement of sale. So all depends upon the identification of the property with respect to Exts.B1 and B2 and whether Ext.A1 forms part of Exts.B1 or B2 or Exts.B1 and B2. Now after remand a Commissioner has been appointed in the matter and he has submitted a plan with the A.S. 264 OF 2001 -4- assistance of the surveyor. 4. Let me first consider Ext.B1. There are two items under Ext.B1 which is claimed by the first defendant. Item No.1 under Ext.B1 is marked in the plan C2 as the property situated north of Ext.A1,A2 line. Item 2 of the property which is having an extent as per the document as one acre 62 cents demarcated by the Commissioner as A3,A4,A5,A6,A3 lines. Item 1 of Ext.B2 in document No.110/77 is marked as A1,A2,A7,A8,A9,A10,A5,A11,A12,A11 lines having an extent of 7 acres and 82 cents. Item No.2 in Ext.B2 is marked as A12,A11,A5,A6,A3,A12 lines having an extent of two acres and 62 cents. Item No.3 in Ext.B2 is marked as A7,A8,A9,A10,A7 having an extent of 63 cents. So this is what is Exts.B1 and B2 according to the Commissioner. A.S. 264 OF 2001 -5- 5. Now the property sought to be assigned in favour of the plaintiff by the first defendant under Ext.A1 agreement is A3,A3a,A3b,A5,A6,A4 lines. When this is the property sought to be assigned and when it is compared with Exts.B1 and B2 it can be found that Ext.B1 as well as B2 takes in Ext.A1 property. The trial court therefore found that the property covered by Ext.B2 being anterior in nature and that Ext.B1 is only a subsequent document the contention of the plaintiff that the first defendant has got right over the property cannot be accepted. 6. The learned counsel for the defendants would contend that description and boundary of Ext.B2 will clinch the issue. According to him Ext.B1 property is purchased by the first defendant from his mother Mary. It can be seen A.S. 264 OF 2001 -6- from Ext.B2 document that the said Mary is only having the property on the northern side and not on the southern side. So if we go by the boundaries in Ext.B2 especially the northern boundary it would reveal that the said Mary did not have any property situated on the southern side of Ext.B2 property. So if it is accepted then by virtue of Ext.B1 Mary cannot convey any property situated on the southern side of Ext.B2 property. 7. But when confronted with a difficult situation learned counsel for the appellant would contend before me that A22 will clinch the issue. According to him Ext.A2 document is an assignment deed executed by the 2nd defendant with respect to a portion of the property covered by Ext.B2 in the year 1984. It is submitted that the southern boundary to that A.S. 264 OF 2001 -7- document is shown as the property belonging to the husband. So it is contended that A22 will itself show that the first defendant has got property on the southern side and it will support the case of the plaintiff. He had also relied upon Ext.A36 document wherein the western boundary shown is the property which was assigned in Ext.A22 in favour of that person. It has to be stated that except for item No.1 of Ext.B1 property no measurement is seen for the other properties even if the boundaries have changed in the process of time. Now going through these documents when an attempt is made to fix Ext.A1 property it can be seen that it forms part of Ext.B1 property as well as Ext.B2 property. Unless and until one is able to establish that Ext.A1 property is part and parcel of Ext.B1 property alone then it has to A.S. 264 OF 2001 -8- be stated that the first defendant would not get any right to alienate that property. It is true that some foul play has been played by some of the parties but this Court in a suit for specific performance as directed by the remand order is only concerned with fixing the identity of the property. Being a suit of this nature the burden strongly lies with the plaintiff. The plaintiff is able to create some confusion but he has not able to satisfy the conscience of the Court that Ext.B1 takes in Ext.A1 property. When it is so, especially when D2 has been impleaded and he has contended for the position that Ext.A1 property is a part and parcel of her property then without proper materials the Court cannot implement the decree for specific performance even if it is passed in his favour. Therefore I agree with the finding of the A.S. 264 OF 2001 -9- learned Subordinate Judge and hold that the plaintiff has not succeeded in proving that Ext.A10 is covered by Ext.B1. Since the only prayer is for specific performance the discretionary relief cannot be granted in favour of the plaintiff and the appeal is dismissed. Parties are directed to bear their respective costs. I vacate the finding also with respect to payment of costs to the 2nd defendant. M.N. KRISHNAN, JUDGE. ul/- A.S. 264 OF 2001 -10- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 264 OF 2001 = = = = = = = = = = = J U D G M E N T 22nd September, 2010.