IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 AS.No. 353 of 2000(A) --------------------- OS.345/1995 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): PLAINTIFF -------------- SOMANATHAN, S/O. NARAYANAN, PARAYIL, ATHAUMKULAM, KONNITHAZHAM VILLAGE. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): DEFENDANTS --------------- 1. RAJESWARI @ RAJI, D/O. YOSODHAYAMMA, THAREPARAMBIL, PERATTAPARAMBU HOUSE, VENNALA KARA, EDAPPALLY SOUTH VILLAGE. 2. YOSODHAYAMMA, DO. DO. (DIED) LEGAL HEIRS ARE IMPLEADED AS ADDL.R3 TO 5 VIDE ORDER DATED 31.10.2005 ON IA 3157/2005. ADDL.R3. VENUGOPAL, S/O. YOSODHAYAMMA, THAREPARAMBIL, PERATTAPARAMBU HOUSE, VENNALA P.O., EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM. R4. RADHAMONI @ RADHA, D/O. YESODHAYAMMA, DO. DO. R5. LEELA, DO. DO. ADV. SMT.N.N.GIRIJA SMT.P.V.KOCHUTHRESIA SRI.UNNIKRISHNAN.S. FOR ADV.COMMISSIONR SMT.P.V.KOCHUTHRESIA FOR ADDL.R3 TO R5 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT COUNSEL FOR THE APPELLANT ABSENT. COUNSEL FOR THE RESPONDENT PRESENT. APPEAL IS DISMISSED FOR DEFAULT. 24.8.2009. SD/- P.Q.BARKATH ALI, JUDGE. -/true copy/- P.S. to Judge M.N.KRISHNAN, J -------------------------------- A.S.NO.353 OF 2000 -------------------------------- Dated this the 7th day of December, 2010 JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judges Court, Ernakulam in OS No.345 of 1995. The suit is one for specific performance of a contract. It is the case of the plaintiff that they had entered into agreement for sale with respect to 700 square links of land and 'virivu' for a consideration of Rs.9,000/- per cent for the land and at the rate of Rs.4,500/- for the 'virivu'. The defendant inspite of demand had refused accede to the request and therefore, the plaintiff is entitled to get specific performance of the contract as he is always ready and willing to perform his part of the contract. On the other hand, the first defendant would contended before the court that out of the property obtained by her she had assigned 5 cents of land in favour of the plaintiff and there was an agreement but without her knowledge the word 'virivu' has been incorporated and as she has no 'virivu' land she cannot transfer and therefore, it is the plaintiff who has played trick and therefore, the suit is liable to be dismissed. A.S.NO.353 OF 2000 2 In the trial court PWs. 1 to 6, DW1 and 2 were examined, Ext.A1 to A7 and B1 to B9 were marked. The trial Court had dismissed the suit. It is against that decision the plaintiff has come up in appeal. Heard the learned counsel for the appellant as well as the respondent. The learned counsel for the appellant would strongly contended that Ext.A1 agreement includes 'virivu' and there was obligation on the first defendant to execute the document and the plaintiff was always ready and willing to perform his part of the contract. The plaintiff has also got a case that in pursuance of the agreement, the plaintiff has been put into possession and he had made improvements in the property and therefore, he is entitled to damages also. On the contra as stated earlier the defendant had denied those things. It has to be stated that before appreciating the matter the following facts are relevant for proper determination of the case. The first defendant, her mother and others had divided the property among themselves as per Ext.B1 partition deed out of which A schedule has been set apart to the share of the mother and D schedule has been set apart to the share of the first defendant the extent of property which the first defendant had obtained 8.60 cents A.S.NO.353 OF 2000 3 and that by the second defendant mother is little more than 10 cents. These properties which was the subject matter division under Ext.B1 was obtained by the mother in a family partition deed whereby she got 44 cents of property. This 44 cents of property is divided as A to E schedule under Ext.B1. Over and above this the plaintiffs mother had obtained 23.75 cents of land through another document and in that document (B5) 10 cents was allotted to one Lakshmikutty Amma and as per the terms of the document it has devolved upon the second defendant after the death of the said Lakshmikutty Amma. Therefore, the second defendant in the suit is entitled to have 23.75+10+10 amounting to 43.75 cents of lands. First defendant is entitled to 8.60 cents of land. Out of the 8.60 cents of land which was allotted to the first defendant 5 cents had been assigned by virtue of Ext.A2 in favour of the plaintiff and now the subject matter of the dispute is 700 square links and 'virivu' if any. The title documents of the first defendant does not reveal or show that any 'virivu' land is available under the document for any of the parties. Ext.B1 partition deed also does not state anything about the 'virivu' land. The survey numbers are given, the extent is given and absolutely no mention anywhere to any schedule regarding 'virivu' is made. Therefore, the A.S.NO.353 OF 2000 4 entire documents of the first defendant and the document of title of the first defendant does not show that she had been given any right over any 'virivu' land at all. It is a settled principle of law of contract namely that one cannot transfer something which does not belong to him at all. Therefore, the documentary evidence convincingly establishes the fact that the first defendant does not have any 'virivu' land. It is under these circumstances, the agreement and the subsequent conduct of the parties have to be looked into and analysed. It has to be stated that the present plaintiff is not prepared to purchase the 700 square links which is a subject matter of Ext.A1. He is prepared to purchase the property only if the 'virivu' also is included and assignment is given. If there is no 'virivu' there cannot be any specific performance of the contract at all. A court of law which is exercising discretionary jurisdiction of specific performance cannot direct any party to assign a property over which she does not have any right. So it is crystal clear that the plaintiff was not prepared to purchase the land of 700 square links and without the other land which is not available and therefore necessarily it has to be stated that the plaintiff has refused to perform his part of the contract. It has also to be stated that if the plaintiff was having A.S.NO.353 OF 2000 5 sufficient financial resources as contended by him there was no difficulty for him to get the entire property registered at the time of Ext.A2. So these are all things which would really go to show that the plaintiff was not in a position to perform his part of contract because he wanted something more than what the plaintiff has. It has also to be remembered that the property which now is claimed as 'virivu', according to the second defendant is as a part and parcel of her property. As discussed by me earlier she is a person entitled to have about 43.75 cents of land. She had transferred only about 28.05 cents of land and the balance still remains with her. So the property over which she has got title cannot be sold by the first defendant as the 'virivu' land. Therefore, the evidence of PW1 and PW2 would establish that there was no 'virivu' land which was available for sale and therefore, under those circumstances the contention of the first defendant that the word 'virivu' has been incorporated as to be viewed in her favour. Further the very document would show that the 'virivu' as per the document alone is to be the subject matter of the agreement. The document referred to therein is Ext.B1 partition deed. Ext.B1 partition deed does not stipulate any 'virivu' and therefore I have absolutely no hesitation to A.S.NO.353 OF 2000 6 hold that the plaintiff is attempting to get something more than what the first defendant has does not want to get the property over which the first defendant has right and therefore, naturally it goes without showing he has committed the breach of contract. Therefore, I am in agreement with trial court in refusing a decree for specific performance. So far as the value of improvements etc. are concerned the first defendant does not have more property than 700 square links and if the plaintiff has filled up any land it is not the first defendant's land and Ext.A1 does not show that he had been put into possession of any of the properties therefore, the case of the first defendant putting the plaintiff into possession of the property and by virtue of the same he had made improvements cannot be believed. Therefore, unless there is a permissive possession damages cannot be granted. It is submitted by the learned counsel for the appellant that in the event of refusal of a decree for specific performance atleast the amount paid as advance should be ordered to be paid back. The learned counsel for the first defendant would contend that his client had sustained loss and therefore she is entitled to forfeit the entire A.S.NO.353 OF 2000 7 amount. There is no much evidence to show regarding the actual loss sustained by the first defendant but the fact remains that she had incurred some expenses and therefore, taking into consideration those aspects she is permitted to retain Rs.1,000/- from the advance amount and return the balance amount of Rs.2,000/- with 6% interest from the date of suit till realisation. In the result, the judgment and decree of the trial court so far as it relates the refusal of specific performance and refusal of grant damages are sustained. The plaintiff is given a decree for a realisation of Rs.2,000/- with 6% on the said sum from the date of suit till realisation from the first defendant. Parties are directed to bear their respective costs. M.N.KRISHNAN,JUDGE pm