IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 AS.No. 419 of 1999(C) --------------------- OS.234/1995 of SUB COURT,NEYYATTINKARA .................... APPELLANT(S): (PLAINTIFFS): ---------------------------------------------- 1. SUDHAKARAN, S/O.RAMAKRISHNAN, AGED 37, LEKSHMY NILAYAM, PARASSALA P.O., PARASSALA VILLAGE, NEYYATTINKARA. 2. SWAYAM PRABHA, W/O.SUDHAKARAN, AGED 33, ...DO..DO.... BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): (DEFENDANTS): ---------------------------------------------------- 1. K.SIVANANDAN, S/O.KRISHNA PANICKER, AGED 61, ASWATHI, OPP.COLLECTORATE, NAGERCOIL - 629 001, K.K.DISTRICT. 2. K.B.SHIBU, ADVOCATE, SREE NILAYAM KARUMANOOR, PARASSALA VILLAGE, NEYYATTINKARA TALUK. R2 BY ADV. SRI.P.GOPALAKRISHNAN NAIR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 419 OF 1999 = = = = = = = = = = = = = = = Dated this the 20th day of May 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Neyyattinkara in O.S.234/95. The suit is one for a declaration, prohibitory injunction as well as for specific performance. It is the case of the plaintiff that the properties described in A schedule were promised to be assigned in favour of the plaintiff by the first defendant after evicting the tenants. Since one of the tenants namely father of the 2nd defendant could not be evicted by virtue of Ext.A1 document 'C' schedule property was assigned in favour of the plaintiff dated 23.3.94. B schedule is the property which was in the possession of Bahuleyan and on the date of A.S. 419 OF 1999 -2- execution of Ext.A1 an agreement was entered into between the defendant and the plaintiff whereby the first defendant promised to convey B schedule property for a consideration of Rs.40,000/- and received a sum of Rs.15,000/- towards that price. The first defendant not only wriggled out of the contract but also fraudulently assigned the property in the name of D2 and thereby the 2nd defendant is not a bonafide purchaser for valuable consideration. The plaintiff therefore prays for a declaration with respect to 'C' schedule and specific performance with respect to B schedule. 2. On the other hand, the first defendant would deny the execution of any agreement with respect to the plaint B schedule property and therefore would contend that the prayer for specific performance cannot be allowed. The 2nd A.S. 419 OF 1999 -3- defendant would contend that he is a purchaser for bonafide consideration. 3. In the trial court Exts.A1 to A4, B1 to B4 and X1 and X1(a) were marked. PWs.1 to 6 and DWs.1 to 4 were examined. The Court on an analysis of the materials granted a decree for declaration with respect to the 'C' schedule property and allowed an injunction with respect to the same and rejected the prayer for decree for specific performance. It is against that decision the plaintiff has come up in appeal. 4. Heard. The points that arise for determination are, (1) Whether the finding of the Court disallowing the prayer of specific performance is correct? (2) Is the plaintiff entitled to get a decree for specific performance? A.S. 419 OF 1999 -4- Points: 5. Admittedly the first defendant is the owner of the entire plaint A schedule property and he has entered into an agreement with the plaintiffs for assignment of the same. Since one of the defendants namely Bahuleyan, father of the 2nd defendant did not vacate the room, the first defendant had assigned the 'C' schedule property in favour of the plaintiffs. Now the specific contention of the plaintiff is to the effect that on the date of execution of Ext.A1 document an agreement was executed with respect to the sale of B schedule property fixing the consideration at Rs.40,000/- of which Rs.15,000/- was paid as the advance amount. On the other hand the first defendant denies the execution of such an agreement. A.S. 419 OF 1999 -5- 6. The evidence available in this matter to prove the same are PWs.1 to PW6. PW1 is the advocate who is a relative of the defendant. He has not seen execution of the alleged agreement. He would depose before Court that when there was a problem he advised the parties to execute an assignment deed with respect to the property other than the B schedule and to enter into an agreement with respect to B schedule. His evidence does not show that he has any knowledge about the execution of any agreement which is claimed by the plaintiff. 7. PW2 is the Treasury Officer. His evidence is with respect to the purchase of stamp paper relating to the agreement alleged to be executed by D1 and D2. If the plaintiff is not able to establish his execution of agreement then it may not be of any serious consequences. A.S. 419 OF 1999 -6- 8. PW3 is the first plaintiff. At the out set he was not in the locality when the agreements were entered into or when the document was registered. So he has no direct knowledge about the same. According to the plaintiffs the transaction was entered into with the active participation of the 2nd plaintiff. For the reasons best known to the plaintiffs the second plaintiff did not mount the box to give any evidence. So the evidence of PW3 also is not acceptable to prove the execution of any agreement. 9. PW4 is the scribe. He is the person who had written Ext.A1 document. He would depose that on that date another agreement was written by him and the photocopy shown by the plaintiff to him is the said agreement. But he would admit in the cross examination that the alleged A.S. 419 OF 1999 -7- agreement which he is said to have executed did contain the year, month and date and that items are not shown or seen in the photocopy. He would also depose,.............................. ............................................... ................. 10. PW5 is one Sidharthan. He would depose that he is a witness to the karar which is alleged to have been executed. But he would contend that in the karar so witnessed by him he put the month, date and year. He would depose that it was written by Krishnan Nair. 11. PW6 is one Sarangdharan. He is the brother of 2nd plaintiff. He speaks about the execution of the agreement and its persons. He also would depose that the alleged agreement is in the handwriting of Krishnan Nair. A.S. 419 OF 1999 -8- 12. At the out set it has to be stated that the original of the agreement alleged to be executed is not forthcoming. If really an agreement has been entered into the original should have been in the possession of the plaintiffs. There was no necessity for the plaintiffs under any circumstances to hand over that agreement to the defendant. So the absence of the original agreement speaks in volumes about the falsity of the case of the plaintiff. 13. The photocopy copy of the agreement which according to him alone is the photocopy of the original, admittedly does not contain the year, month or date. Whereas the persons who had witnessed the same would depose that there was year, month and date in the agreement which was executed on the date of the registration of Ext.A1. Similarly the scribe Krishnan Nair had A.S. 419 OF 1999 -9- specifically stated that the document is not in his handwriting but all the witnesses say that handwriting is of Krishnan Nair in the original of the document. So the secondary evidence which is attempted to be established also is not proved. There is no recital in Ext.A1 also regarding the incapacity to assign B schedule or that some arrangement has been entered into for the purpose of the same. There is no case for the plaintiff that at any point of time Bahuleyan, the father of the 2nd defendant promised to vacate the premises. Therefore the consistent case is that Bahuleyan refused to vacate the premises. So it is very clear that there could not have been an agreement as contended. So from the materials available and as found by the Court below I have also no hesitation to hold that the plaintiffs have A.S. 419 OF 1999 -10- miserably failed to prove the factum of an alleged sale with respect to B schedule on the date. When it is so whether D2 is a bonafide purchaser for valuable consideration or an agreement is accompanied does not loom large at all. Therefore I do not find any ground to interfere with the decision rendered by the trial court. Hence the appeal is dismissed but I direct the parties to bear their respective costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 419 OF 1999 -11- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 419 OF 1999 = = = = = = = = = = = J U D G M E N T 20th May, 2010.