IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 SA.No. 545 of 1996(F) ------------------------------ AS.NO.247/1990 OF DISTRICT COURT, THRISSUR, OS.NO.103/1986 OF I ADDL.SUB COURT, THRISSUR. .................... APPELLANT/APPELLANT-PLAINTIFF: ----------------------------------------------------- *1. JOHN, S/O. CHALISSERY JOSEPH, THACHAMPILLY DESOM, VELUTHUR VILLAGE, TRICHUR TALUK. *(DIED). *SOLE APPELLANT DIED ADDL. APPELLANTS 2 TO 4 IMPLEADED AS LRs. 2. SMT. LIZA, W/O. C.J. JOHN (LATE), THACHAMPILLY DESOM, VELUTHUR VILLAGE, THRISSUR TALUK. 3. C.J. LONACHAN, S/O. LATE C.J. JOHN, -DO- -DO-. 4. C.J. ALOTIOUS, S/O. LATE C.J. JOHN, -DO- -DO-. *ADDL. APPELLANTS 2 TO 4 ARE IMPLEADED AS LRs OF DECEASED APPELLANT AS PER ORDER DT. 03/10/2000 IN C.M.P. NO. 1882/2000. BY MR.K.P.DANDAPANI, SENIOR ADVOCATE. RESPONDENT/RESPONDENT-DEFENDANT: -------------------------------------------------------------- ARAVINDAKSHAN, S/O. VALLATHPARAMBIL KUNHAPPU, PARAKKAD VILLAGE & DESOM, THRISSUR TALUK. BY ADV. MR.P.VIJAYA BHANU. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON 09/03/2010 DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 545 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of March, 2010. JUDGMENT Undaunted by the concurrent findings against him, and the dismissal of the suit, the plaintiff in O.S.103 of 1986 before the Sub Court, Trichur has come up in appeal. 2. The suit was based on Ext.A1 agreement for sale dated 27.10.1982. The plaintiff claimed that as per the said agreement, the defendant had undertaken to assign his property to the plaintiff for a total consideration of Rs.20,000/-. Rs.17,000/- was paid on the date of Ext.A1 itself. The period was for three years. Before the expiry of the term, the plaintiff issued notice to the defendant calling upon him to execute the sale deed. It is averred in the plaint that the plaintiff was always ready and willing to perform his part of the contract. A notice sent by the plaintiff invoked no reply. S.A.545/1996.. 2 The plaintiff therefore approached the court for necessary reliefs. 3. The defendant resisted the suit. It is contended that the claim made by the plaintiff was a fraudulent one and he had never agreed to assign his residential plot to the plaintiff. He denied the execution of the agreement itself and pointed out that he has not received the amount of Rs.17,000/- as alleged in the plaint. The plaintiff was the Chairman of Arimbur Panchayat Improvement Trust and the defendant had occasion to subscribe to an investment scheme by that Trust. He has paid Rs.1,950/- till 1.12.1982. He had bid a kury for Rs.6,850/-. Towards the said amount only Rs.1000/- was paid by the plaintiff and on several blank stamp papers and plain papers his signature was taken by the plaintiff. He has misused one of those papers and concocted an agreement for sale. The defendant denied his liability to execute the sale deed. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of S.A.545/1996.. 3 P.Ws. 1 to 4 and exhibits marked as Exts.A1 to A3 from the side of the plaintiff. The defendant examined himself as R.W.1 and Exts.B1 and B2 were marked. The trial court on an evaluation of the evidence came to the conclusion that the agreement for sale, on which the case was built was a concocted one. Accordingly the suit was dismissed. In appeal, the appellate court confirmed the judgment and decree of the trial court. 5. In this Second Appeal, the following substantial questions of law are seen raised, on which notice has been ordered: “1. Is the finding recorded by the courts below justified on the basis of the evidence adduced before the Court? 2. Whether the courts below are justified in concluding that it is for the appellant to prove that there was an agreement for sale, especially when the respondent has admitted his signatures in the agreement? 3. Whether the findings of the courts below are based on admissible evidence?” S.A.545/1996.. 4 6. At the very outset itself it may be noticed that there is concurrent findings of facts against the plaintiff. Therefore interference in Second Appeal is very limited. Unless it is shown that the judgments and decrees of the courts are perverse or illegal, normally in second appeal no interference is called for. 7. The plaintiff relies on Ext.A1 agreement for seeking a decree. Both the courts have analysed that document. It has come out in evidence of P.W.1 that the negotiation of sale took place on 20.10.1982 and the agreement was on 27.10.1982. The plaintiff also stated that it was only on the previous day of the execution of the agreement for sale that the stamp papers for the said purpose was purchased by him. The scribe was also examined. The scribe said that the stamp paper was taken from his office when the plaintiff along with the defendant had come to prepare the document. A perusal of the stamp paper, on which the agreement for sale was executed was S.A.545/1996.. 5 seen purchased on 13.10.1982. P.W.2 is the scribe and P.Ws. 3 and 4 are the two witnesses to the document. It is interesting to notice that P.Ws.3 and 4 are the employees of the plaintiff. It is seen that P.W.4 later left the employment under the plaintiff and took up some other employment. 8. True that both P.Ws.3 and 4 do say about the execution of the agreement. But it is significant to notice that regarding all other significant and important aspects, both of them plead ignorance. It is admitted by both of them that the defendant had subscribed to an investment scheme with the concern, of which the plaintiff was its Chairman. P.Ws. 3 and 4 maintained that the agreement was signed in the office of the plaintiff, while the plaintiff says that it was signed in his residence. It is also true that both are very near to each other. 9. The only thing that goes in favour of the plaintiff is that to the notice sent by him, the defendant had not sent any reply. The reason given by the defendant is that since he had not executed any agreement, he did not S.A.545/1996.. 6 feel it necessary to answer as such may not be very convincing. But that does not mean that the plaintiff is entitled to a decree. 10. One must notice that the total consideration is only Rs.20,000/- and according to the plaintiff Rs.17,000/- was paid by him on the date of agreement itself. If that be so, a substantial portion of the sale consideration has already been paid. It escapes ones understanding why a period of three years is stipulated for execution of the sale deed. That seems to be unusual and unreasonable. Of course it is stated that the defendant sought time to purchase another property. But the reason given is very unconvincing. 11. Apart from Ext.A1 the plaintiff has not been able to produce any document to show that he had infact paid Rs.17,000/- to the defendant as stated in the agreement. 12. Learned counsel appearing for the appellant drew the attention of this court to the fact that the signature S.A.545/1996.. 7 is admitted and therefore the burden is on the defendant to show that he had not executed the agreement. Emphasis was also laid on the fact that no reply had been sent to the notice. 13. Though both the above contentions may look attractive at the first blush, it can be found that there is no substance whatsoever. It is well settled by now that merely because the signature on the document is admitted by the person concerned, that does not mean that the execution has been proved. Still the burden is on the plaintiff to show that the document has been executed by the person concerned and that the recitals contained therein are true. The lower appellate court has also noticed that even though the first sheet of the document is a stamp paper, the second sheet is a printed form. This, according to the appellate court, strengthens the case of the defendant that in all probability his signature was taken on the printed sheet and later it was used to suit the case of the plaintiff. Both the S.A.545/1996.. 8 courts have concurrently found that the evidence of P.Ws.3 and 4 are least convincing and reliable. 14. Both the courts have considered the evidence on record in detail and had come to an identical conclusion. No infirmity, either legal or factual, is pointed out in the findings of the courts below. There are no legal grounds to interfere with the decrees of the courts below. None of the questions of law, of which notice has been issued do arise for consideration in this case. At any rate, there is no substantial question of law to be decided. The issue involved is purely one of fact and since both the courts below have found that the suit document is a concocted one, no interference is called for in the Second Appeal. The Second Appeal is dismissed with costs to the respondent throughout. P. BHAVADASAN, JUDGE sb. S.A.545/1996.. 9 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 545 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 09.03.2010