IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 RSA.NO. 532 OF 2005() {IN A.S.NO.373/2001 OF II ADDL. DISTRICT COURT, PALAKKAD IN O.S.NO.298/1998 OF THE MUNSIFF'S COURT, CHITTUR} .................... APPELLANT (S):/1ST APPELLANT/1ST DEFENDANT: VELLAKUTTY ALIAS RUGMANI, WIDOW OF CHANDRAN, RESIDING AT VAKKINICHALLA, KUTTYPPALLAM VILLAGE, CHITTUR TALUK, PALAKKAD DIST. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SRI.LEJU T.BALAN RESPONDENT(S): RESPONDENT/APPELLANTS 2 TO 7/ PLAINTIFF/D2 TO D7: 1. SUKUMANI, S/O. VELAN, RESIDING AT VAKKINICHALLA, KUTTIPALLAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 2. KOSU, S/O. CHIDAMBARAN. 3. NARAYANAN, S/O. ARUCHAMI. 4. KRISHNAN, S/O. ARUCHAMI. 5. VASU, S/O. VELAPPAN. 6. MURUKAN, S/O. PANGAN. 7. THAMP RAWTHER, S/O. APPU. RESPONDENTS 2 TO 7 ARE RESIDING AT MUTHALAMTHODE, PERUMATTY VILLAGE, CHITTUR TALUK, PALAKKAD DIST. R1 BY ADV. SRI.SAJAN VARGHEESE K. (COVEATOR), SRI.LIJU. M.P & SRI.M.V.BIPIN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ALONG WITH RSA NO.599 OF 2005 ON 07/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------------------- R.S.A.No.532 & 599 of 2005 ---------------------------------------------- Dated this the 7th day of January, 2011 JUDGMENT Common appellant in both these appeals, is the plaintiff in a suit for specific performance and the defendant in a suit for injunction. Both the suits admittedly relate to three items of properties, altogether having an extent of 1 acre 5 cents situate in Kuttukollam Village, Chittur Taluk. Suit for injunction against the appellant was preferred by one Sukamani, the elder brother of her husband viz., Chandran. That suit was laid earlier in point of time alleging that after the death of brother Chandran, he had permitted his sister-in-law to occupy the farm house situate in the situate in the suit property. However, later, in association with the other defendants in the suit, she resisted and interfered with his enjoyment over the suit property, was the case canvassed to seek a decree of injunction against the R.S.A.No.532 & 599 of 2005 :: 2 :: defendants arrayed in that suit. The present appellant, thereafter, instituted the suit for specific performance alleging that her husband Chandran and the defendant viz., Sukamani had entered into an agreement by which, after receiving part consideration of Rs.75,000/- out of the sale price fixed at Rs.90,000/-, her husband was put in possession of the suit properties. After the death of her husband in part performance of the agreement, she continues to be in possession of enjoyment of the property was her case to seek further relief of specific performance after tendering of balance consideration of the agreement. Default on the part of the defendant in the suit to complete the contract by registering the sale deed in terms of the agreement was imputed for instituting the above suit. 2. The defendant Sukamani resisted the suit claims contending that the agreement relied upon is a R.S.A.No.532 & 599 of 2005 :: 3 :: forged and fabricated document and the suit had been filed as a counterblast to his earlier suit for injunction. Though both the suits were tried and proceeded before the same court for one reason or the other, despite the suits presenting common issues for adjudication over the very same subject matter with the parties involved also identical, trial proceeded in the cases separately giving rise to separate judgments. Neither the parties to the suits, nor the court concerned examined the propriety for having a joint trial of the two suits, which was warranted on the issues presented in both the cases. Whatever that be, on the materials placed the suit for specific performance filed by the present appellant was dismissed and the suit for injunction by the present respondent as plaintiff was decreed in part. The appellant herein (defendant in that suit) was permitted to continue in occupation of the farm house, but, with an injunction R.S.A.No.532 & 599 of 2005 :: 4 :: restraining her from interfering with the enjoyment of the suit properties by the respondent Sukamani. Appeals preferred against the decrees passed in the respective suit by the common appellant herein were turned down by the lower appellate court, which after re-appreciating the materials tendered in the case, concurred with the findings arrived by the trial court to conclude that the agreement relied by her to seek specific performance was not genuine and that the respondent herein, the plaintiff in the suit for injunction, was entitled to a decree, as indicated above. As against the concurrent decision so rendered by the two courts below in the two suits, these appeals have been preferred. 3. Both the two suits and the appeals arising therefrom had been disposed of separately by the trial court and also the lower appellate court. When these appeals came up for hearing, it was agreed upon by the R.S.A.No.532 & 599 of 2005 :: 5 :: counsel on both sides that the appeals could be disposed of by way of a common judgment as identical issues emerge for consideration in the appeals. It is fairly conceded also that the crucial question to be considered is the correctness of the conclusion formed by the court below as to whether the agreement of sale relied on by the appellant to seek a decree of specific performance over the suit property is genuine, or whether it is a forged and fabricated, as contended by the respondent. 4. Citadel of the case presented by the appellant to sustain whatever right and interest canvassed over the suit properties undoubtedly rested on the genuineness of the agreement of sale which was impeached as fraudulent by the respondent. In the suit for specific performance she produced a copy of the agreement of sale as the original of that instrument had been produced in the other suit, suit for injunction. Since R.S.A.No.532 & 599 of 2005 :: 6 :: both these appeals are being considered together, though the two suits have been tried and disposed of separately, the non-production of the original agreement in the suit for specific performance, need not be given any significance as the original agreement presented in the other suit wherein also the same parties have been arrayed is available on record. Both the courts below, on the materials tendered in the case, the suit for specific performance, have held the agreement of sale relied on by the appellant is not genuine. The learned counsel for the appellants assails such finding contending that the respondent, who was examined as DW.1 in that suit had admitted his signature in the agreement for sale, the original of which is exhibited as Ext.D1 in O.S.No.298/98, suit for injunction, with a photo copy produced and exhibited as Ext.A1 in the suit for specific performance, O.S.No.393/98. When there is a specific admission over R.S.A.No.532 & 599 of 2005 :: 7 :: his signature challenge against that agreement as forged is totally devoid of any merit, is the submission of the counsel. More than that, the execution of the agreement by the respondent in favour of his brother, viz., Chandran (husband of the appellant), it is submitted, is proved by the evidence of PW.2 and PW.3, who are shown as witnesses in that agreement. Per contra, the learned counsel for the respondent contended that even a look at the signature of Chandran in Ext.B3 deed and comparing that signature with that in the agreement for sale, it could be seen, there is gross and totally unmatchable difference in the signatures in the two documents. Signature subscribed by Chandran in Ext.B3 is an inscrutable scribble which would clearly show that he was illiterate and incapable of even writing his name. But, the signature put in the agreement for sale would show that his name Chandran is written fully in R.S.A.No.532 & 599 of 2005 :: 8 :: Malayalam vernacular. The agreement came into existence, and even a notice demanding completion of sale on the basis of such agreement was issued, after to the filing of the suit for injunction by the respondent and that too after he had filed a complaint before the police complaining that the appellant along with her henchmen, the other defendants in the suit for injunction, were preventing him from enjoying the suit properties. Both the courts below have taken note of the suspicious circumstances surrounding the execution of the agreement of sale, and after meticulously appreciating the evidence of the appellant as PW.1 and the attesting witnesses to the agreement of sale, Pws.2 and 3, had correctly drawn the conclusion that the agreement is a fabricated document, according to the counsel. 5. Perusing the judgment, with reference to the submissions made by the counsel on both sides, it is R.S.A.No.532 & 599 of 2005 :: 9 :: seen that the claim of the appellant over the suit properties solely rested on the agreement of sale purported to have been executed by the respondent with her husband late Chandran. After the death of Chandran, the appellant was permitted to occupy the building situate in the suit property is the case of the respondent. Even in the written statement filed in the suit for injunction, the appellant had categorically admitted that prior to the agreement of sale, possession of the property remained with the respondent, the title holder. So much so, in both suits, specific performance and suit for injunction, the reliefs canvassed by the rival side have to be resolved solely on the basis of the validity of the agreement of sale. The trial court, after considering the evidence of Pws.2 and 3, witnesses shown in the agreement of sale, have concluded that they are highly interested and there are material R.S.A.No.532 & 599 of 2005 :: 10 :: discrepancies in their testimonies disproving the execution of the agreement by the respondent. Whereas PW.2 stated that he had subscribed his signatures in 4 or 5 pages at the time when the agreement was executed, it was shown that he had subscribed his signature only on one page alone. His further version was that he was requested by Chandran to take leave the day before, for the purpose of witnessing the execution of the agreement. But, he admitted in evidence that the date on which the agreement was executed was a Sunday, a holiday for the textiles where he worked. Similar is the case of the evidence tendered by PW.3 to prove the execution of Ext.A3 agreement. He also stated that he had signed on three stamp papers and a white paper when the agreement was executed between chandran and the respondent. In the agreement, the original of which is produced in the suit for injunction his signature R.S.A.No.532 & 599 of 2005 :: 11 :: appears only in the last page of the same. He also stated that he wanted to see the case decided in favour of the appellant The larger question where the genuineness of the agreement of sale was impeached by the respondent with regard to the income potentiality of late Chandran, the husband of the appellant, to advance a sum of Rs.75,000/-, which was stated as already paid under the agreement as part of the purchase price, remained unanswered by any convincing material whatsoever. When the appellant was questioned with respect to those aspects as well, she could not give any satisfactory explanation other than stating that some of her ornaments were disposed of and loans were obtained to pay such sum to the respondent. Her husband is only a coolie worker, and his sustenance and also that of the appellant, his wife, depended on his coolie work is conceded by her. R.S.A.No.532 & 599 of 2005 :: 12 :: 6. On the materials placed, the conclusion drawn by the trial court which had been approved by the lower appellate court as well that Chandran had no sufficient funds to pay the amount of Rs.75,000/- which was stated as paid as advance in the agreement of sale is proper and correct and there is no reason to take a different view. On a totality of the the facts and circumstances presented in the case, the conclusion drawn concurrently by both the courts below that the agreement of sale on which the appellant set forth her claim for specific performance is not genuine does not suffer from any infirmity whatsoever. When that be so, and the claim of possession over the suit property by the appellant was solely on the basis of that agreement, which is found to be not genuine, dismissing the suit for specific performance of the appellant, and decreeing the suit for injunction of the respondent accepting the case R.S.A.No.532 & 599 of 2005 :: 13 :: pleaded that permissive occupation over the building alone was given to the appellant after the death of his brother as probable, deserve only to be upheld. There is no merit in these appeals, which do not contain any substantial question of law. Both the appeals are dismissed, directing the parties to suffer their respective costs. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.