IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 RFA.No. 275 of 2003() ------------------------------- AS.217/2000 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR OS.762/1996 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT - PLAINTIFF: -------------------------------- KRISHNAN S/O. GOPALAN, AGED 55 YEARS, KOYITHARA HOUSE, THEKKUMPADAM DESOM, PEECHI VILLAGE, THRISSUR DISTRICT (DIED) LEGAL REPRESENTATIVES IMPLEADED: ----------------------------------------------------- 2. MANGALAM, W/O. LATE KRISHNAN, THEKKUMPADAM DESOM, PEECHI VILLAGE, THRISSUR TALUK. 3. SAJINI, D/O. LATE KRISHNAN, DO. DO. 4. SUNITHA, D/O. LATE KRISHNAN, DO. DO. (THE LEGAL REPRESENTATIVES OF THE DECEASED APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 VIDE ORDER DATED 3.6.2002 IN I.A. NO.533/2002) BY ADV. SRI.P.VIJAYA BHANU RESPONDENTS - DEFENDANTS: ------------------------------------------ 1. LAKSHMIKUTTY, AGED 54, W/O. PUTHUSSERY BHASKARAN, MOOLAKKATTUKARA DESOM NETTISSERY VILLAGE, THRISSUR TALUK 2. VASU, AGED 56, S/O. LATE CHEERAMBAN RAMAN, PEECHI VILLAGE, THRISSUR TALUK. 3. JANAKI, W/O. THAIVALAPPIL KESAVAN, AGED 63 YEEARS, CHOOLISSERI VILLAGE, THRISSUR TALUK. BY ADV. SRI.C.CHANDRASEKHARAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ALONG WITH A.S. NO.478 OF 2000 ON 04/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.PADMANABHAN NAIR, J. ------------------------------------------- A.S.No.478 of 2000 and R.F.A.No.275 of 2003 ------------------------------------------- Dated this the 4th day of February, 2008 JUDGMENT These two appeals arise from a common judgment and decrees passed by the court below in O.S.No.270/1995 and O.S.No.762/1996. The short facts necessary for the disposal of the appeals are as follows: For the sake or convenience the parties will be referred to as arrayed in O.S.No.270/1995. 2. 41 cents of land comprised in survey No.2428/2 belonged to one Raman. After the death of Raman and his widow, the properties devolved upon their children who are defendants. In addition to the 41 cents of land inherited the second defendant was having 10 cents of land in the very same survey number as her absolute property. According to the plaintiff, on 1.11.1994, defendants 1 to 3 had jointly executed an agreement for sale agreeing to sell the entire 51 cents of land to him on or before 28.2.1995. It was also averred that the plaintiff was put in possession of the property. It was further averred RFA275/03 & A.S.No.475/2000 2 that the defendants failed to execute the sale deed as agreed to by them. Hence, the plaintiff issued Ext.A5 notice on 3.2.1995 and thereafter filed the suit for specific performance. 3. Defendants 1 and 3 did not appear and contest the case. The second defendant/respondent contended that she was not a signatory to the document and her signature in Ext.A1 agreement for sale has forged. It was further contended that the plaintiff and third defendant are close friends and they used to consume liquor together and the plaintiff might have got some documents executed while the third defendant was under the influence of liquor. The allegation that the defendants received an amount of Rs.10,000/- as advance also denied. The averment that the plaintiff had stacked materials in the suit property for construction or a house was also denied. It was further contended that the plaintiff threatened her that he will be filing a suit for specific performance. On getting such information, she filed a suit before the Munsiff court for a decree or permanent prohibitory injunction restraining the plaintiff from trespassing into the property. RFA275/03 & A.S.No.475/2000 3 4. The second defendant filed O.S.No.234/1995 on 23.2.1995 before the Munsiff Court for a decree of permanent prohibitory injunction. It was averred that she is the absolute owner of 10 cents of land and she is the co-owner in respect of remaining portion of the suit properties. It was alleged that the first defendant was trying to trespass into the suit property. In that suit also, the defendants 2 and 3 remains exparte. The first defendant who is the plaintiff in O.S.No.270/1995 alone contested the case. It was contended that plaintiff and defendants 2 and 3 executed an agreement for sale in respect of the entire property in his favour and he paid an advance of Rs.10,000/-. O.S.No.234/95 was withdrawn the Sub Court and renumbered as O.S.No.762/96. Both the suit were jointly tried. The trial court decreed the suit filed by the second defendant. The suit filed by the plaintiff was decreed in part. The trial court disallowed specific performance of the agreement but granted a decree for recovery of Rs.10,000/- with interest. Challenging that part or the decree by which specific performance was refused, plaintiff in O.S.No.270/1995 who is the first defendant in O.S.No.762 of 1996 filed A.S.No.478/00. He had filed RFA275/03 & A.S.No.475/2000 4 A.S.No.217/2000 before the District Court, Thrissur challenging the decree passed in O.S.No.762/1996. That appeal was withdrawn to this Court and renumbered as R.F.A.No.275/03. Both the appeals were heard and disposed of by this common judgment. 5. The appellant in both these appeals has argued that there was an agreement for sale in respect of 51 cents of land that he was put in possession of the property. It is argued that the court below had found that the defendants 1 and 3 had executed the agreement and it ought to have at least ordered specific performance of that part of the agreement. It is argued that there is no evidence to hold that the second defendant did not affix her signature in Ext.A1 agreement. 6. The evidence on record shows that 10 cents of property absolutely belongs to the second defendant. 41 cents belonged to the father of the defendants. After his death, the property devolved upon the defendants and they are co-owners in respect of that property. According to the plaintiff, the defendants had agreed to sell entire 51 cents of land. His further case was that initially they received an amount of RFA275/03 & A.S.No.475/2000 5 Rs.4,000/- as advance and subsequently another Rs.6,000/-. So a total amount of Rs.10,000/- was received as advance towards sale consideration after executing agreement. He was put in possession of the entire land. His further case was that he started stacking materials in the site for construction of the building, the second defendant raised objections and immediately he issued a notice to the third defendant with a direction to show the notice to the other defendants. Notice was issued on 3.2.1995. The second defendant filed O.S.No.762/96 on 23.2.1995 for decree of permanent prohibitory injunction. The appellant filed the suit for specific performance on 4.3.1995. On the side of the plaintiff PWs 1 to 4 were examined. PW1 is the plaintiff and PW2 is an attestor. PWs 1 and 2 gave evidence that Ext.A1 agreement was executed by all the defendants together. That suggestion was denied. The specific case put forward by the second defendant was that the agreement might have been signed by the third defendant Vasu alone while he was under the influence of liquor. The plaintiff examined PWs' 2 and 4 as independent witnesses. The second defendant is an illiterate lady aged 58 on her date of examination. She gave RFA275/03 & A.S.No.475/2000 6 evidence. She had specifically denied the execution of the agreement. The learned counsel for the plaintiff has argued that a comparison of the signatures in Ext.A1 with the admitted signatures of the second defendant will show that both signatures were effected by one and the same person. I have compared the admitted signature with the disputed signatures. It is settled position of law that is not desirable to interfere with a decree passed by the court comparison alone. Though DW1 was thoroughly cross examined, nothing was brought out to discredit her testimony. The trial court found that the second defendant has not affixed her signature. But in spite of such a finding the trial court granted a decree for recovery of the entire advance with interest. 7. I am of the view that the trial court had exercised the discretion vested in it properly in refusing the specific performance of the agreement for sale in favour of the plaintiff. It is also settled law that even if it is proved that a party has executed an agreement for sale the court can refuse to order specific performance of the agreement in appropriate cases. The evidence given by DW1 shows that the defendants are RFA275/03 & A.S.No.475/2000 7 illiterate persons. She had specifically denied her signature. The plaintiff never made an attempt to get the disputed signature of the second defendant compared with her admitted signatures. So I do not find any reason to interfere with the finding of fact based on good evidence. I hold that the court below had exercised the discretion vested in it in a balanced manner. So there is no merit in A.S.No.478/2000. 8. Admittedly, the second respondent is the absolute owner of 10 cents of land and she is the co-owner in respect of the remaining 41 cents. Exts. B1 and B2 coupled with oral evidence of DW1 clearly shows that she is in absolute possession of 10 cents of property. It is also found that the trial court had restrained the appellant from trespassing into the property. There is no merit in R.F.A.No.275/03 also. The appeals are also to be dismissed. In the result, the appeals are dismissed. K.PADMANABHAN NAIR, JUDGE csl