IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 RSA.No. 967 of 2011() --------------------- AS.165/2009 of ADDL. DISTRICT COURT, KOZHIKODE-III OS.25/2006 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- PUTHUSSERI SUBRAMANIAN, AGED 57 YEARS, S/O.VELU, FEROKE AMSOM, NALLUR DESOM, KOZHIKODE TALUK. BY ADV. SRI.SHAJI P.CHALY SRI.R.SANJITH SMT.LIJITTA G.MATHEW RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. VAYAL PEEDIAKKAL ABOOBACKER, S/O.KODELERIMMAL MOOSA, AGED 49 YEARS, FEROKE AMSOM, NALLUR DESOM, KOZHIKODE TALUK, PIN 673631. 2. RAZIYA, W/O.VAYAL PEEDIAKKAL ABOOBACKER, FEROKE AMSOM, NALLUR DESOM, KOZHIKODE TALUK, PIN 673631. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.967 of 2011 ............................................ DATED THIS THE 21st DAY OF OCTOBER, 2011 JUDGMENT Plaintiff in O.S.25 of 2006 on the file of Sub Court, Kozhikode is the appellant. Respondents are the defendants. Suit was filed for realisation of Rs.1,00,000/-, which according to the appellant was paid as part of the sale consideration, as advance under Ext.A1 agreement for sale. Appellant would contend that the plaint schedule property jointly belonged to the respondents. On 21.3.2001, they entered into Ext.A1 agreement whereunder for Rs.1,50,000/-, respondents agreed to sell the plaint schedule property and appellant agreed to purchase the same. Appellant paid Rs.1,00,000/- as advance and agreed to pay the balance at the time of execution of the sale deed. Respondents agreed to execute the sale deed within a period of ten months. It was contended that appellant was always ready and willing to perform his part of the agreement but respondents failed to perform their part of the agreement in spite of the willingness expressed by the appellant. As they are not willing to execute the sale deed, RSA 967/2011 2 appellant is claiming back the advance amount paid. It is contended that in spite of sending Ext.A2 notice dated 17.4.2005 demanding the amount, respondents did not pay the same and therefore he is entitled to get back the amount with interest. 2. Respondents resisted the suit contending that they did not agree to sell the plaint schedule property to the appellant and no agreement was executed and Ext.A1 is not an agreement executed by them and the signature of the first respondent seen therein is not his signature and being a fraudulent document, appellant is not entitled to a decree based on Ext.A2. It was contended that respondents did not receive Rs.1,00,000/- as alleged by the appellant and first respondent had borrowed Rs.10,000/- from the appellant and that amount was also repaid and then appellant demanded exhorbitant interest and first respondent refused to pay the same. The appellant threatened him with dire consequences and the suit was filed by forging the document thereafter. 3. Learned Sub Judge, on the evidence of PWs 1 and 2, DWs 1 and 2 and Exts.A1 to A3 and B1 dismissed the suit holding that appellant did not establish that Ext.A1 agreement was RSA 967/2011 3 executed by the respondents or they received the amount stated in Ext.A1 as claimed by the appellant and therefore he is not entitled to the decree sought for. Appellant challenged the decree and judgment before District Court, Kozhikode in A.S.165 of 2009. Learned Additional District Judge on re-appreciation of the evidence confirmed the findings of learned Sub Judge and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that courts below did not properly appreciate the evidence. It was argued that the evidence of DW1 establish that his case that he used to affix only thumb impression and not signature is not correct as rightly found by first appellate court as even in the vakalath, he has affixed his signature. The learned counsel would argue that the evidence adduced by PWs 1 and 2 and DW1 is to be appreciated in that background. The evidence of PWs 1 and 2 establish that first respondent signed in Ext.A1 and received Rs.1,00,000/- towards the sale consideration and as they are not willing to perform their part of the agreement, a decree for realisation of the advance paid should have been granted. RSA 967/2011 4 5. On hearing the learned counsel, I do not find any substantial question of law is involved in the appeal. Appellant is claiming that respondents executed Ext.A1 agrement after receiving Rs.1,00,000/-, towards the sale consideration shown therein and as they are not willing to perform their part of the agreement, appellant is entitled to get back the advance paid. Respondents specifically contended that they did not execute Ext.A1 and Ext.A1 is a fraudulent document and the signature of the first respondent seen in Ext.A1 is not his signature. In spite of the specific plea raised by respondents in the written statement, appellant had not taken any steps to send Ext.A1 to an expert to get the signature therein compared with the admitted signature of first respondent. The failure of the appellant to take the said step is fatal. 6. Courts below appreciated the evidence in the proper perspective. When even according to the appellant, the property agreed to be sold under Ext.A1 jointly belong to the two respondents and appellant is aware of that fact. If the property was agreed to be sold for Rs.1,50,000/- and Rs.1,00,000/- is being paid as advance amount, if the transaction is bonafide, it RSA 967/2011 5 would definitely be insisted by the appellant that second respondent should also execute Ext.A1 agreement especially when more than half of the sale consideration is being paid as advance. The evidence also establish that appellant did not obtain the anterior title deeds of the property agreed to be sold under Ext.A1, which would not be the case of a genuine agreement for sale, especially when more than half of the sale consideration is being paid. Added to this, even according to the appellant, he was having the money necessary for getting the sale deed executed. Ext.A1 does not show any impediment for not executing a sale deed immediately. It cannot be believed that agreement would be executed providing that sale deed need be executed within a period of ten months in such circumstances. When the entire evidence is considered in the proper perspective, the factual finding entered by the courts below is perfectly correct. In such circumstances, no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk