IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 FAO.No. 158 of 2009() --------------------- I.A. 440/2008 IN O.S. 64/2008 OF FIRST ADDL. SUB COURT, KOZHIKODE. APPELLANT/PETITIONER/PLAINTIFF: --------------------------------------------------- R.M.RAKESH AGED 23 YEARS, S/O.P.K.RAJENDRAN, VALAYANAD VILLAGE, KOMMERI DESOM, KOZHIKODE TALUK. BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE ADV. SRI. N.M. MADHU ADV. SMT. DEVIKA RANI KAIMAL. RESPONDENT(S)/RESPONDENTS/DFENDANTS: ---------------------------------------------------------------- 1. VAZHAYIL MUHAMMED, AGED 49 YEARS, S/O.BAVA, VALAYANAD VILLAGE, KOMMERI DESOM, KOZHIKODE TALUK. 2. K.M.ABDUL GAFOOR AGED 29 YEARS, S/O.ASSAN KOYA, POKKALATH PARAMB, VALAYANAD AMSOM, KOMMERI DESOM, KOZHIKODE TALUK. 3. VADIYIL SAFIYA AGED 38 YEARS, D/O.HASSAN KOYA, VALAYANAD AMSOM, KOMMERI DESOM, KOZHIKODE TALUK. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 ADV. SRI. MUHAMMED SHAFI .M FOR R1. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 158 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August, 2009. JUDGMENT Raman, J, Appellant is the plaintiff in O.S. No.64 of 2008 on the file of the Additional Sub Court, Kozhikode. The suit is one for specific performance of the contract between the plaintiff and the first defendant evidenced by Ext.A1 produced in the case. According to the plaintiff, the plaint schedule property of an extent of 5.70 cents, more particularly described in the schedule, was agreed to be sold by the first defendant to the plaintiff on an agreed consideration of an amount of Rs.5,00,000/-, of which an amount of Rs.3,40,000/- was paid by way of advance, in instalments. The plaintiff was ready and willing to pay the balance consideration and thus willing to perform his obligation, but the first defendant was not ready and willing to execute the sale deed, hence instituted the suit. 2. At the time of Ext.A1 agreement dated 11.3.2007, the first defendant was not holding any title to the plaint schedule FAO.158/2009. 2 property. But subsequently he purchased a portion of the suit property on 24.9.2007 from the erst-while owner Sri. Vijayan. Thereafter the first defendant sent a notice to the plaintiff dated 15.12.2007 (Ext.A5) requesting for the payment of balance consideration and to get sale deed executed within a period of one week. From the engrossed seal on the postal cover, it is seen that the same was received on 24.12.2007. According to him, since the plaintiff did not pay the balance consideration and to get the sale deed executed in his favour within the period as stipulated, he subsequently sold 3.29 cents to second defendant, who is none other than his brother-in-law on 5.1.2008. 3. The plaintiff along with the suit filed the present application seeking for an injunction restraining defendants 1 and 2 from alienating or encumbering the property till the disposal of the suit. The court below by the impugned order dismissed the application, against which the present appeal is preferred. FAO.158/2009. 3 4. Heard learned Senior Counsel Sri.R.D.Shenoy appearing on behalf of the appellant and learned Senior Counsel Sri.V.Chitambaresh appearing on behalf of the contesting respondents. 5. The court below entered a prima facie finding that the agreement in question is vague. It referred to the recitals contained in the agreement as also the endorsement made overleaf, and also made reference to the fact that as on the date of Ext.A1, the first defendant was not the owner of the property and that no boundaries are also mentioned in the document. It was contended by the appellant that the parties have understood the agreement as binding on them. Even the defendants had no case that the agreement is in any way vague atleast in respect of an extent of 3.71 cents. Reliance is placed on Ext.A5 notice by first defendant in this regard. Even though as on the date of Ext.A1, the first defendant was not holding any title to the property, subsequently he had purchased the property and thereafter he expressed his readiness and willingness to be abided by the agreement in respect of 3.71 cents. Therefore it is contended that the finding of the court below that the agreement is vague is wrong and unsustainable. Learned FAO.158/2009. 4 counsel appearing on behalf of the respondents however would point out that the endorsement made on the agreement enhancing the extent to 5.70 cents is an interpolation made at the instance of the plaintiff. Incidentally he also refers to the fact that even in Ext.A1 agreement in the schedule the boundaries are not specifically mentioned. He also points out the mistake in the endorsement made of the advance amount as though paid by the first defendant. Both sides placed reliance on few decisions of the Apex Court in support of their contentions. While the appellant would rely on the decision reported in Ramesh Chandra v. Chuni Lal (AIR 1971 SC 1238) for the proposition that in a specific performance suit a decree can be granted by making the subsequent transferee also a party and directing him to execute the sale deed along with the transfer. According to him, subsequent transferee can only contend that he is a bonafide purchaser and he cannot raise any plea regarding the readiness and willingness of the parties. The respondents cited the decision reported in Sahadeva Gramani v. Perumal Gramani ((2005) 11 SCC 454) to contend that the suit was unenforceable and there was no mutuality in the agreement. FAO.158/2009. 5 6. After arguing the matter elaborately by both sides, it was agreed by defendants 1 and 2 by their counsel that they will not alienate or encumber an extent of 3.71 cents of property as was the extent agreed to be sold as per Ext.A1. In the above circumstances, it is not necessary to grant an injunction as sought for even though the plaint schedule property is for a larger extent of 5.70 cents. After a careful consideration of the contentions raised by the parties, we find that there is some dispute regarding the actual extent that is agreed to be sold as per Ext.A1 and therefore at this stage it will not be appropriate based on any prima facie view to grant any injunction beyond an extent of 3.71 cents. 7. Since counsel appearing for the respondents had given an undertaking, we record the undertaking given by defendants 1 and 2 that they will not encumber or alienate 3.71 cents, which forms part of the suit property until disposal of the suit. The finding of the court below is set aside. The suit will be disposed of expeditiously at any rate within a period of four months untramelled by the observations made in the order impugned in this appeal or in our judgment, after FAO.158/2009. 6 framing necessary issues arising out of the pleading. 8. Even though arguments were advanced pointing out that some construction had been made in the suit property, we refrain from referring to it as no specific relief was sought against such construction in the present application. The appeal is disposed of as above. P.R. Raman, Judge P. Bhavadasan, Judge sb.