IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 SA.No. 560 of 1999(G) --------------------- AS.26/1991 of PRL.SUB COURT,IRINJALAKUDA OS.61/1986 of PRL.MUNSIFF'S COURT, IRINJALAKUDA .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------- 1. CHANDRAMGADHAN, S/O.KARAVATT DAMODHARAN, CHERUVAL DESOM, NANMANIKKARA VILLAGE, MUKUNDAPURAM TALUK. 2. DR.JANARDHANAN, S/O.KARAVATT DAMODHARAN, CHERUVAL DESOM, NANMANIKKARA VILLAGE, -DO- -DO- 3. SURESHKUMAR, S/O.KARAVATT DAMODHARAN, -DO- -DO- 4. SADEESHKUMAR, S/O,.KARAVATT DAMODHARAN, -DO- -DO- 5. DHAMAYANTHI, W/O.KARAVATT DAMODHARAN, -DO- -DO- BY ADV. SRI.G.D.PANICKER SMT.JEENA JOSEPH RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------------- 1. THOMAS, S/O.NAMBIDIYADAN LONAPPAN, CHERUVAL DESOM, NANMANIKKARA VILLAGE, MUKUNDAPURAM TALUK. 2. ROSY, W/O.NAMBIDIYADAN OUSEPH, -DO- -DO- 3. JOY, S/O.NAMBIDIYADAN OUSEPH, 4. LEENA, D/O.NAMBIDIYADAN OUSEPH, -DO- -DO- 5. THRESSIA, D/O.NAMBIDIYADAN LONAPPAN, NANMANIKKARA VILLAGE, NOW RESIDING AT CHAKKALAKKAL VEEDU, MULLAKKARA POST, MANNUTHI. (DIED Vide IA.775/09) 6. ROSSA, D/O,.NAMBIDIYADAN LONAPPAN, PRESENT ADDRESS: ROSSA VARGHESE, PALLILPPADAN HOUSE, POST VIYYUR, THRISSUR.(DIED Vide IA.775/09)) -2- S.A.NO.560/99 7. KCOHALIA, D/O.NAMBIDIYADAN LONAPPAN, PRESENT ADDRESS: KOCHALIA, NEAR LCHEMBISSERY GATE, PANBOOR POST. ADV. SRI.GREENY FOR R2 TO R4 & R7 SRI.M.C.GOPI FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/05/2010. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ S.A.NO.560 OF 1999 ------------------------------- DATED THIS THE 31ST DAY OF MAY, 2010 JUDGMENT Plaintiffs in O.S.No.61/1986 on the file of the Principal Munsiff's Court, Irinjalakuda are the appellants. The suit was filed for specific performance of an agreement for sale. The trial court held that the plaintiffs are not entitled to get a decree for specific performance of the contract and hence the suit was dismissed. The appeal preferred by the plaintiff was dismissed by the Appellate Court confirming the findings of the trial court. Hence, the appeal. The parties hereinafter referred are the plaintiffs and defendants as arrayed in the suit. 2. The present appellants are the legal heirs of one deceased Damodaran. The case of the plaintiffs is that in 1979 the lst defendant agreed to sell plaint A schedule property to deceased Damodaran for a total consideration of Rs.12,750/-, -2- S.A.560/99 that the lst defendant received an amount of Rs.12,500/- as advance and executed an agreement for sale on 8/2/1979. The period fixed for performance of the contract was three years. It was pleaded in the plaint that there was a renewal of the contract and therefore a new agreement was executed by the lst defendant on 1/2/1982. In the said contract also the period for performance of the contract was fixed as three years. It is the plaintiffs' case that deceased Damodaran was put in possession of the plaint schedule property in part performance of the contract and the deceased Damodaran has constructed two shop-rooms in the property spending Rs.20,000/-. On the basis of the aforesaid facts and circumstances the suit was filed for specific performance of the contract for sale. 3. The lst defendant denied the plaint averments and prayed for dismissal of the suit. On the side of the plaintiffs Pws.1 to 5 were examined and Exts.A1 to A5 were marked. The lst defendant was examined as DW-1. Dws.2 and 3 were also -3- S.A.560/99 examined and Exts.B1 to B5 were marked in support of his case. Exts.C1 and C2 commission report and plan were marked as court exhibits. 4. The trial court examined the facts, evidence and attendant circumstances and concluded that the transaction is not a contract for sale of the property but intended as security for the amount borrowed. The trial court discussed the peculiar facts and circumstances leading to the execution of Exts.A1 and A2. The plaintiff's case is that he paid Rs.12,500/- as advance amount. The time for performance of the contract was originally three years and subsequently it was extended by another period of three years. This circumstance was also taken into consideration by the trial court to conclude that there is no agreement for sale but it can only be a loan transaction. Other circumstances were also considered by the trial court. Out of seven co-owners only one co-owner namely, the lst defendant, agreed to sell the plaint schedule property to the plaintiff. -4- S.A.560/99 Admittedly, at the time of execution of Exts.A1 and A2, the lst defendant had no exclusive right over the plaint schedule property, which is the subject matter of the contract for sale. The said fact was known to the deceased Damodaran at the time of execution of Ext.A1 sale agreement itself. The Lower Appellate Court rightly held that such an agreement is not binding on the other co-owners and the plaintiff cannot enforce the same against other co-owners, who are not the parties to Ext.A1 and A2. All these facts and circumstances were discussed by the facts finding court as the important circumstance probabilising the case of the lst defendant that the property was not intended to be sold and that the agreement was executed only as a security for the loan amount borrowed by him. 5. The Lower Appellate Court on facts found that there was no occasion for the lst defendant to put the deceased Damodaran in possession of the property. The Lower Appellate Court also considered the case of the plaintiff that the plaintiff -5- S.A.560/99 had constructed two shop-rooms spending Rs.20,000/-. The courts below found that the case of the plaintiffs is improbable. The trial court as well as the Appellate Court on an examination of the facts and circumstances rightly held that the plaintiffs are not entitled to a decree for specific performance of the contract. The findings recorded are based on the evidence and materials on record. No question of law much less any substantial question of law arises for consideration in the appeal. In the result, the appeal fails and accordingly dismissed. There will be no order as to costs. Sd/- HARUN-UL-RASHID, JUDGE. kcv -6- S.A.560/99