IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 RSA.No. 1270 of 2004(A) ----------------------------------- AS.NO. 155/2001 of III ADDL.SUB COURT, KOZHIKODE OS.NO. 688/1997 of ADDL.MUNSIFF'S COURT, KOZHIKODE-I .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- THUDARPUZHA MUHAMMED, AGED 49 YEARS, S/O.IBRAHIM, PUTHUPPADY AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): RESPONDENTS/DEFENDANTS: ------------------------------------------------------------------------ 1. THUDARAPPUZHA K.K. PATHUMMAYI, AGED 62, W/O.LATE HAMSA, PUTHUPPADY AMSOM AND DESOM, KOZHIKODE TALUK. 2. THUDARAPPUZHA K.K.MUHAMMED, AGED 43 YEARS, S/O.LATE HAMSA, R/A. DO. DO. 3. THUDARAPPUZHA K.K.PATHUMMA, AGED 41 YEARS, D/O.LATE HAMSA, R/A. DO. DO. (DIED). 4. THUDARAPPUZHA K.K.SUHARA, AGED 39 YEARS, D/O.LATE HAMSA, R/A. DO. DO. 5. THUDARPPUZHA K.K.AYISHA, AGED 44 YEARS, D/O.LATE HAMSA, R/A. DO. DO. 6. THUDARAPPUZHA K.K. KHADEEJA, AGED 34 YEARS, D/O.LATE HAMSA, R/A. DO. DO. SUPPL.R7: K.K.SUBAIR, AGED 48 YEARS, S/O. ABDULLAKUTTY, R/A. DO. DO. “ '' R8: RAFEEQUE,AGED 20 YEARS, S/O. SUBAIR, R/A. DO. DO. '' '' R9: MUJEEB, AGED 16 YEARS, (MINOR) S/O.SUBAIR, R/A. DO. DO. '' ''R10: SAKKARIA, AGED 14 YEARS, (MINOR) S/O.SUBAIR, R/A. DO. DO. MINORS ARE REPRESENTED BY GUARDIAN FATHER K.K.SUBAIR. ( IMPLEADED AS PER ORDER IN I.A.NO.768/03 DATED 16/1/2004 AND AMENDED AS PER ORDER IN I.A.NO.767/03 DATED 16/1/2004) R1, R5 & R6 BY ADV. SRI.P.V.KUNHIKRISHNAN FOR R1, 5, 6 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO.1270 OF 2004 ............................................ DATED THIS THE 24th DAY OF MAY, 2011 JUDGMENT The plaintiff in O.S.688 of 1997 on the file of Munsiff Court, Kozhikode is the appellant. Defendants are the respondents. Appellant instituted the suit seeking a decree for specific performance of Ext.A1 agreement for sale allegedly executed by deceased Hamza, husband of the first respondent and father of the remaining respondents. Appellant is admittedly the son of the brother of Hamza. According to the appellant, Hamza agreed to sell 30 cents out of property obtained by him, as per patta L4.240.39/75 for a total consideration of Rs.11,500/- and he paid Rs.3500/- as advance and Hamza agreed to receive the balance consideration within a period of eight years and execute a sale deed. Hamza died subsequently without executing the sale deed in spite of request. Appellant issued Ext.A5 notice to the respondents demanding execution of a sale deed as agreed in Ext.A1 but they denied the agreement by sending Ext.A6 reply. The suit was instituted contending that appellant has always been RSA 1270/2004 2 ready and willing to execute the sale deed and he has been put in possession of the property under Ext.A1 and therefore he is entitled to the decree. 2. Respondents filed a written statement denying execution of Ext.A1 agreement contending that Hamza had not agreed to sell the property. It was also contended that Hamza had borrowed Rs.3000/- from the appellant and at that time, appellant had obtained blank papers containing signature of Hamza and the document could have been created using the said signed paper. It is contended that the value of the property at the time of agreement is much more than the value shown in the agreement and appellant is not entitled to the decree. 3. Learned Munsiff, on the evidence of the appellant as PW1, one of the witnesses to Ext.A1 as PW2, the evidence of first respondent as DW1, Exts.A1 to A6 and B1 to B3 dismissed the suit finding that Ext.A1 agreement was not executed by Hamza and he did not agree to assign the property and appellant is not therefore entitled to a decree for specific performance of the agreement. Appellant challenged the judgment before Sub Court, Kozhikode in A.S.155 of 2001. Learned Sub Judge, on RSA 1270/2004 3 reappreciation of evidence granted a decree for realisation of Rs.3000/- with interest at 6%, though it was found that Ext.A1 was not executed by Hamza, solely based on the admission in Ext.A6 reply notice that Hamza had borrowed Rs.3000/- and the respondents are willing to repay the same. Respondents have not challenged the decree for Rs.3000/- and only the plaintiff had filed the appeal. 4. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that evidence of the first respondent as DW1 establish that she had even denied the contentions in the written statement and she is not in a position to asset or deny the signature of Hamza in Ext.A1 agreement. The learned counsel argued that the fact that Hamza was having a liability towards a loan obtained from the bank and attachment notice was received by him towards that loan was admitted by DW1 and in such circumstances courts below should have accepted the case of appellant that Rs.3500/- was paid at the time of execution of the agreement for discharge of the liability in part and subsequently Rs.5800/- was paid as seen in Ext.A1 and in such circumstances, it should have been found that deceased RSA 1270/2004 4 Hamza had agreed to execute a sale deed in respect of the plaint schedule property. The learned counsel argued that Ext.A2 to A4 tax receipts corroborates the evidence of PW1 that he obtained possession of the plaint schedule property pursuant to Ext.A1 agreement and Ext.A6 reply notice shows that respondents have admitted that appellant had paid the property tax and in such circumstances, courts below should have found that appellant is entitled to the decree. Learned counsel finally argued that when first appellate court directed the respondents to pay Rs.3000/- based on Ext.A6 reply, a decree for specific performance of the agreement for sale should have been granted. 5. A copy of Ext.A1 and the depositions of the witnesses were made available by the learned counsel. A reading of Ext.A1 agreement casts doubt regarding the genuineness of the agreement. If Hamza had agreed to sell 30 cents of the property and appellant had agreed to purchase the same for Rs.11,500/- the recital in Ext.A1 agreement would have shown that deceased Hamza had agreed to sell and appellant had agreed to purchase the property based on the agreed value per cent and part of the consideration was paid and balance would be paid within a RSA 1270/2004 5 reasonable time. Ext.A1 does not show on what basis, Rs.11,500/- was fixed as consideration. In fact, Ext.A1 only shows that for Rs.11,500/-, 30 cents was agreed to be sold and Rs.3500/- was received as advance and balance is to be paid within a period of eight years. If the property was put in possession of the appellant as claimed by the appellant and shown in Ext.A1, at least boundaries of the thirty cents would have been shown in Ext.A1. Ext.A1 only shows that out of the property obtained by Hamza, which is not mentioned, as per the proceedings of the District Collector in L4.240.39.75, the northern 30 cents was agreed to be sold and put in possession of the appellant. It does not show that the property agreed to be sold was the entire northern portion or either north eastern or north western corner. Therefore, based on Ext.A1, the property agreed to be sold can never be fixed. A genuine agreement for sale will not be as seen in Ext.A1. With these aspects in mind, the case is to be appreciated. 6. Even though respondents have specifically contended that deceased Hamza had not executed Ext.A1 agreement and did not agree to sell the property, appellant did not take steps to RSA 1270/2004 6 prove the signature of Hamza seen in Ext.A1. The learned Sub Judge rightly found that there is difference in the signatures seen in Ext.A1 with the alleged signature allegedly affixed at the time of payment of Rs.5800/- later. Moreover, the stamp paper was obtained by somebody else. The evidence of PW1 shows that the property situate near to the plaint schedule property was sold by Hamza to one Yahu. If that be so, the sale deed executed by Hamza should be with Yahu. If it had been produced, at least the signature could have been compared. Courts below entered a factual finding that signature seen in Ext.A1 is different from the signature seen at the time of alleged payment of Rs.5800/- on 17.8.1992 which according to the appellant was paid towards balance consideration. Courts below also found that normally Hamza is not expected to affix two signatures in each page and appellant had no valid explanation for the same. When the entire evidence available is appreciated, it cannot be found that appreciation of evidence was perverse. The factual finding, which is in accordance with the evidence cannot be interfered in second appeal. The decree for payment of Rs.3000/- was not granted based on Ext.A1 but only in view of the admission in Ext.A6 reply RSA 1270/2004 7 that Hamza received the same and respondents are prepared to pay it. I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk