IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 AS.No. 636 of 1997(E) --------------------- (OS.108/1994 of SUB COURT, PALA) .................... APPELLANTS/DEFENDANTS: ----------------------------------------- 1. JOSEPH JOSEPH, S/O.JOSEPH, NOW AGED 58, THOTTUNGAL HOUSE, THIDANADUKARA, KONDOOR VILLAGE. 2. MAIZHSON JOSEPH, S/O.JOSEPH, NOW AGED 27, NEDUMCHERIL PURAYIDOM, THIDANADUKARA, KONDOOR VILLAGE. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT/PLAINTIFF: ------------------------------------- 1. OUSEPH JOSEPH, S/O.OUSEPH, KALAPURACKAL HOUSE, KONDOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM. DIED). ADDL.RESPONDENTS 2 TO 9 IMPLEADED ------------------------------------------------------------ ADDL.R2. APPACHAN (JOSEPH JOSEPH) S/O.JOSEPH, KALAPURACKAL HOUSE, CHEMMALAMATTOM P.O., KOTTAYAM. “ R3. C.DAMIEN, CLARASABHA (F.C.C.), KARINKALTHANI, MALAPPURAM “ R4. C.ANCY, CLARASABHA (F.C.C.), BALTHANGADY, MANGALAPURAM DISTRICT, KARNATAKA. “ R5. C.JOSE, MANIMOOLI H.S., CHUNKATHARA, MALAPPURAM DISTRICT. AS.No. 636 of 1997(E) ------------------------------- ADDL. R6. KUNJU, KALAPURACKAL HOUSE, CHEMMALAMATTAM P.O., CHERANI, KOTTAYAM. “ R7. JOY (GEORGE JOSEPH), KALAPURACKAL HOUSE, CHEMMALAMATTAM P.O., KOTTAYAM “ R8. BABY JOSEPH, KALAPURACKAL HOUSE, CHEMMALAMATTAM P.O., KOTTAYAM. “ R9. ANNAMMA JOSEPH, KALAPURACKAL HOUSE, CHEMMALAMATTAM P.O., KOTTAYAM. ADDL. RESPONDENTS 2 TO 9 IMPLEADED AS THE LR'S OF THE DECEASED 1ST RESPONDENT, VIDE ORDER DT. 23.2.07 ON CMP 4967/2001. R1 BY ADV, SRI.ADV. SRI.T.P.VARGHESE R2-9 BY ADV. SRI.PHILIP T.VARGHESE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14/12/2010, ALONG WITH RFA NO. 149 OF 2006 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 636 of 1997(E) ------------------------------- IA NO. 3665/2010 IN AS. 636/1997 CLOSED 14.12.2010 Sd/- M.N.KRISHNAN, JUDGE / TRUE COPY / P.A. TO JUDGE VK M.N. KRISHNAN, J. ........................................... A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 ............................................. Dated this the 14th day of December, 2010. J U D G M E N T A.S.No.636/1997 is preferred against the judgment and decree of the Subordinate Judge's Court, Pala in O.S.No.108/1994 and the other appeal is preferred against the judgment and decree of the Subordinate Judge's Court, Pala in O.S.No.637/1994. The said appeal was preferred as A.S.No.187/1997 before the District Court, Kottayam and it was called to this Court and renumbered as RFA.No. 149/2006. 2. Now to the brief facts of the case. The suit O.S.No.108/1994 is a suit for specific performance of the contract. It is the case of the plaintiff that there had been an agreement for sale between the plaintiff and the first defendant orally in 1990 and subsequently by a written agreement on 11.1.1992 with respect to 26 cents and 80 sq.links of land. The property lies in two tiers and the purchase price was fixed at Rs.3,000/= per cent for one tier : 2 : A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 and Rs.2,000/= per cent for the other tier and up to 11.1.1992 a consolidated sum of Rs.30,400/= was paid and subsequently on 2.4.1992 a sum of Rs.1,000/= was paid. In order to defeat the interest of the plaintiff, the first defendant fraudulently executed a document in favour of the second defendant and the second defendant filed a suit as if the present plaintiff is attempting to trespass into the property before the Munsiff Court. The plaintiff was ready and willing to perform his part of the contract and continues to be ready and willing to perform his part of the contract and therefore the plaintiff prays for a decree for specific performance of the contract. 3. The defendants, on the other hand, would contend that there had been no agreement to sell with the plaintiff and that the plaintiff had not been put into possession of any of the property pursuant to an agreement to sell and that they had not received any consideration and therefore the plaintiff is not entitled to a decree for specific performance. According to them, the plaintiff has been permitted under a : 3 : A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 varam arrangement to cultivate the property and the plaintiff is now attempting to get that property by creating false documents. Therefore they prayed for dismissal of the suit. The suit filed by the second defendant was originally filed before the Munsiff Court, Pala and it is a suit for declaration and consequential injunction. The plaintiff, who is the defendant in that suit, denies such a right to the second defendant in specific performance suit. 4. In the trial court, PWs 1 and 2 and Dws 1 to 3 were examined. Exts.A1,A2,B1,B2, C1 and C2 were marked. On an analysis of the entire materials, the trial court granted a decree for specific performance and dismissed the suit for declaration of title and consequential injunction and it is aggrieved by that decision, the defeated party has come up in appeal. 5. Heard the learned counsel for the appellants as well as the respondent. The crux of the matter depends upon proof of an agreement to sell the property as contended by the plaintiff. Admittedly the property belonged to the first : 4 : A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 defendant in the suit for specific performance and the plaintiff therein is claiming property on the basis of an agreement to sell. The second defendant in that suit claims right over the property by virtue of an assignment deed executed by the first defendant in his favour. If the decree for specific performance is to be granted, then necessarily the other suit may have to be dismissed and also vice versa. 6. Now let me consider how far the plaintiff has succeeded in proving the agreement to sell. It is the case of the plaintiff that on 15.1.1990 an oral agreement has been entered into between him and the first defendant with respect to two tiers of property having an extent of 19 cents. At that time, there was an agreement to sell 7 cents of property in favour of one Gopalan and it is contended by the plaintiff that the first defendant withdrew from that contract with Gopalan and asked the plaintiff whether he is interested in purchasing that 7 cents also and thereby he expressed his willingness to purchase the property at the same rate. Nothing transpired between 15.1.1990 and 11.1.1992 even : 5 : A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 according to the plaintiff. According to the plaintiff, on 11.1.1992 himself and the first defendant had executed a karar which according to him is an agreement for sale incorporating the extent of the property as well as the consideration. Ext.A1 is that agreement. The approach of the first defendant is that of total denial of that agreement. So in order to succeed in the suit of this nature, it is imperative on the part of the plaintiff to prove to the satisfaction of the court regarding the execution of the agreement. 7. Now the learned counsel for the plaintiff in the specific performance suit wants to prove the transaction by referring to the attending circumstances and to the solitary evidence of PW1 to arrive at a decision in the case. But the learned counsel for the appellants would strongly contend that Ext.A1 is a fabricated document, which cannot be termed as an agreement for sale and there is no proof to prove the execution of that document. 8. Now let me consider first about the evidence : 6 : A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 regarding execution of the document. It is fundamental that when an execution of the document is denied, the burden is on the person who relies on the document to prove the same. I may have to state that a reading of Ext.A1 agreement will never show that it is an agreement to sell. But it gives some description of the property, some payment of consideration etc. A mere perusal of Ext.A1 would further reveal that the last portion of Ext.A1 appears to be subsequently interpolated one because there is changes in writing. Even if the case of the plaintiff is admitted for argument sake, on 11.1.1992, there is nothing to do with Gopalan and so the entire 26 cents and 80 sq. links of land was available for agreement. But what is done in Ext.A1 is reference with respect to 19 cents is made in the first page and then extended to 26 cents in the second page. The first defendant has denied his signature in Ext.A1. The trial court on a comparison of the signature with various documents like vakalath, written statement etc arrives at the conclusion that there is variation in signature but the : 7 : A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 comparison would reveal that there is similarity and therefore holds that the agreement stands proved. 9. I am afraid that such an attitude cannot be taken by a court of law. The Hon'ble Supreme Court has cautioned very many times that comparison of handwriting or signature by the court is the most hazardous task and ordinarily the court shall not venture to make such a comparison for the reason that it is not an expert on that aspect. But the Supreme Court further held that in the light of the provisions of Section 73 of the Indian Evidence Act, comparison of signature is permissible by the court and further held that said comparison can be used only as a corroborative piece of material and not as the basis for arriving at a decision regarding the signature of a person. 10. Ext.A1 is alleged to be written by the son of the plaintiff namely Baby. For the reasons best known to the plaintiff, Baby is not examined before the court. There are methodologies to get signature of the person compared by scientific expert and when there is total denial of the : 8 : A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 signature, the plaintiff ought to have moved the court for comparing the handwriting or signature of the person. It is also not done. What remains is the interested evidence of PW1. It has to be remembered that the plaintiff has set up a case that there was an oral agreement to sell the property on 15.1.1990 which matures into a written agreement on 11.1.1992. These factors come to the lime light before the court only after institution of the suit by the second defendant in the suit for specific performance. So the agreement said to be dated 11.1.1992 does not see the light of the day and no action is taken by the plaintiff to get that document executed. But it is done in answer to the pleadings in the suit filed by the second defendant. Therefore onus of proof and the standard of proof expected from the plaintiff is on a higher degree but what is available is only interested version. 11. Now regarding the signatures. It is said that there are dots, lines, no dots and no lines. It is not for a court to consider without expert evidence or other evidence : 9 : A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 to show what is the normal characteristics of the first defendant's handwriting. Even the Hon'ble Supreme Court in the decision reported in Thiruvengadam Pillai v. Navaneethammal (2008 (4) SCC 530) had very clearly stated that comparison with the naked eye is not sufficient and it requires scientific materials for proper comparison even by a court. Therefore the evidence of PW1 does not inspire confidence in me and does not appear to be intrinsically reliable and inherently probable. 12. Now I may also have to consider the argument raised by the learned counsel. He had submitted before me that consideration of the property as per the agreement comes to about Rs.64,000/= whereas the first defendant has executed an assignment deed in favour of the second defendant for a consideration of Rs.10,000/=. But the recital in the document itself is to the effect that Rs.10,000/= is received. It is a transaction between the father and the son. Secondly the learned counsel would refer to the Commissioner's report and submit before me that the age of : 10 : A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 the plants would reveal that what the defendants said in the specific performance suit is not correct. The Commissioner who has been appointed inspected the property and reported that age of the plants is two months and there are plants and other trees aged about one year in the property. So the learned counsel would contend that as per the pleadings in the other suit, the varam arrangement is subsequent to the sale in favour of the second defendant and therefore there should not have been any plants or trees above 4 months old in the property. Therefore he submits that since it is a one year old tree or plant, the case of the plaintiff appears to be more probable and acceptable. Originally the oral agreement, according to the plaintiff, is in January, 1990. The Commissioner had inspected the property in June, 1992. If the property is purchased for the purpose of cultivation, then trees are planted in regular course and their age should have been much more than one year under any circumstances. So, existence of some plants or trees aged one year in the property will not totally : 11 : A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 militate against the case of the defendants in this matter. 13. It has to be stated that the contention is that about Rs.31,400/= has been paid. Except those recitals in Ext.A1 and the interested assertion of PW1, no other evidence is forthcoming in that regard. As stated by me, it is very difficult for a court of law to hold that Ext.A1 has been properly proved. The recitals in the document cannot help the plaintiff. How he raised the fund, when he paid the amount, what was the mode of payment, how it was done are all matters which should have been proved. There is absolutely no evidence. 14. The learned counsel would also draw my attention to the fact that the plaintiff is a rustic person, not well educated and had not gone to a document writer or a lawyer and therefore the recital in Ext.A1 has to be seen in that line and when analysed, the court can be convinced about the truthfulness of the evidence. It has come out in evidence that the plaintiff's son is an educated person who can at least write the agreement and according to him, he is a : 12 : A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 person who had written the agreement. He has not been examined. Further when the parties entered into an agreement for sale of the property at least the word sale (വലന) should be somewhere in the document. It is not available. Further, according to the plaintiff, Ext.A1 was executed as the first defendant had withdrawn from the agreement to sell 7cents to Gopalan which created suspicious circumstance that forced the plaintiff to make the document evidencing the transaction. It is certain that when such is the contingency, the plaintiff would have been more careful in executing a proper document. It has also to be stated that Rs.1,000/= is recorded as paid in Ext.A1. A perusal of Ext.A1 would reveal that in the first page itself one finds a culmination to the agreement but it again starts in the second page. These are all circumstances which is not properly explained and therefore I hold that Ext.A1 agreement is not at all properly proved. 15. Then as contended by the learned counsel for the appellants, there is no evidence tendered by the plaintiff : 13 : A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 with respect to the fact that he was always ready and willing to perform his part of the contract. His suit for specific performance is in answer to the suit for declaration of title and injunction. Therefore that also lacks. This is a case with full of suspicious circumstances which does not make the court to grant a discretionary relief of decree for specific performance. 16. Therefore from these discussions, I hold that the trial court has gone wrong in granting a decree for specific performance and therefore the suit for specific performance has to be dismissed and I do so. 17. So far as other case is concerned, the learned counsel for the respondent would contend that since the plaintiff is in possession of the property, there cannot be a decree for consequential injunction. It has to be remembered that when the case of specific performance had ended against the plaintiff and the agreement itself is found to be in valid, then he can be only in possession of the property as contended by the plaintiff in the other suit. It is merely : 14 : A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 based on the varam arrangement which is a permissive possession. When the term has expired, necessarily the plaintiff in that suit is entitled to enter into possession of the property and therefore there is nothing wrong in granting a decree for declaration of title and consequently injunction in favour of the plaintiff in the other suit. 18. In the result, Both the appeals are allowed and the suit O.S.No.108/1994 is dismissed and the suit O.S.No.637/1994 is decreed as follows: The plaintiff is given a declaratory decree with respect to his title and possession of the property and the defendant in the suit and his men are restrained by a consequential permanent injunction from interfering with the peaceful possession of the plaintiff over the property. Considering the facts and circumstances of the case, parties are directed to bear their costs both in the appeal as well as in the suit. M.N. KRISHNAN, JUDGE. cl : 15 : A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 M.N. KRISHNAN, J. ........................................... A.S.NO.636 OF 1997 & R.F.A.NO.149 OF 2006 ............................................. 14th day of December, 2010. J U D G M E N T