IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 RSA.No. 387 of 2011() --------------------- AS.59/2008 of ADL.SUB COURT, THALASSERY OS.22/2001 of MUNSIF COURT, KUTHUPARAMBA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------------ VARAKKOTH KALLIATAN KUTTIKRISHNAN NAMBIAR, S/O KUTTAPPA NAMBIAR, AGRICULTURIST, RESIDING IN KEEZHUR AMSOM, ELAMBARA DESOM, THALASSERI TALUK. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENT(S): RESPONDENTS/RESPONDENTS/DEFENDANTS ------------------------------------------------------------------------------------------ 1. KEECHERRY VEETTIL PRASANTH, S/O.PANKAJAKSHI, KEEZHALLOOR AMSOM, ELAMPARA DESOM, THALASSERI TALUK, PIN-670 703. 2. KEECHERRY VEETTIL PANKAJAKSHI AMMA (INSANE), REPRESENTED BY SON KEECHERRY VEETTIL PRASANTH, PIN-670 703. 3. KEECHERRY VEETTIL KRISHNAKUMAR, S/O.PANKAJAKSHI AMMA, (INSANE), REPRESENTED BY BROTHER KEECHERRY VEETTIL PRASANTH, PIN-670 703. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 387 OF 2011 =========================== Dated this the 27th day of July,2011 JUDGMENT Plaintiff in O.S.22/2001 on the file of Munsiff Court, Kuthuparamba is the appellant. Defendants are the respondents. Appellant instituted the suit for specific performance of Ext.A1 agreement for sale contending that though respondents 2 and 3 are insane, first respondent for and on their behalf also agreed to sell the plaint schedule property for a total consideration of Rs.66,000/- and Rs.36,000/- was received as advance towards the sale consideration and executed Ext.A1 agreement on 9.6.1997 agreeing to execute the sale deed on receipt of the balance consideration within a period of six months. Though appellant was always ready and willing to perform his part of the agreement by paying R.S.A.387/2011 2 the balance consideration, first respondent by one pretext or other protracted execution of the sale deed and finally did not execute the sale deed. Appellant therefore sought a decree for specific performance of the agreement. First respondent resisted the suit contending that he did not agree to sell the property either on his behalf or on behalf of respondents 2 and 3 and he did not execute Ext.A1 agreement and it is a concocted document and he did not receive any advance or consideration and therefore appellant is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws.1 to 4, DW1, Exts.A1 and C1 dismissed the suit holding that appellant did not establish that first respondent on behalf of respondents 2 and 3 executed Ext.A1 agreement or agreed to sell the plaint schedule property and therefore he is not entitled to the decree for specific performance of the agreement for sale. Appellant challenged the judgment before the Sub Court, Thalassery in R.S.A.387/2011 3 A.S.59/2008. Learned Sub Judge on reappreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. 4. The argument of the learned counsel is that Ext.A1 was sent to an expert to compare the signature of the first respondent with the admitted signatures taken from open court and the expert has found that the signature in Ext.A1 is that of the first respondent and courts below should have relied on the report eventhough the expert was not examined. The argument of the learned counsel is that when respondents have cited the expert as their witness and did not examine him, appellant should not be found fault for not examining the expert and on a proper appreciation of the evidence, it should have been found that first respondent executed Ext.A1 agreement agreeing to sell the plaint schedule property and a decree for R.S.A.387/2011 4 specific performance of the agreement should have been granted. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. The courts below found that appellant did not make available any document containing the signature of the first respondent during the relevant period when Ext.A1 agreement was executed. The courts below also relied on the evidence of the appellant as PW1 that he was aware that first respondent had executed three documents immediately prior or after the execution of Ext.A1 and he did not take any steps to call for those documents and make them available to be compared with the signatures seen in Ext.A1 and therefore based on the report of the expert, even if it could be relied Ext.A1 cannot be taken as executed by the first respondent. On going through the judgments of the courts below, I do not find any reason to interfere with the factual findings that appellant R.S.A.387/2011 5 did not establish that Ext.A1 agreement was executed by the first respondent. It is not for the respondent to prove the report submitted by the expert, when the appellant did not even cite him as a witness. I cannot agree with the submission of the learned counsel that the suit is to be remanded to enable the appellant to examine the expert. The judgments of the courts below establish that entire evidence was properly appreciated and the factual finding was arrived also. Hence appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006