IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 Ex.SA.No. 24 of 2010() ------------------------------ AS.238/2009 of ADDL. DISTRICT COURT, N.PARAVUR EA. 530/09 IN EP.266/2004 IN OS.444/1996 OF ADDL.SUB COURT,PARAVUR .................... APPELLANT/APPELLANT/CLAIM PETITIONER ----------------------------------------------------------------- JYOTHI, S/O. SUBRAMANIAN, PLASSERY HOUSE, VAYALUKARA, KUNNUKARA VILLAGE, PARAVUR TALUK. BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.SUBHA ABRAHAM RESPONDENT(S): RESPONDENTS/DECREE HOLDER AND JUDGMENT DEBTOR ----------------------------------------------------------------------------------------------------------------- 1. SREEKUMAR, S/O. KARUNAKARA PANICKER, SREE PRABHA, PAZHANGATTU HOUSE, KAITHARAM MURI, KOTTUVALLY VILLAGE. 683 518. 2. SANTHOSH, S/O. SUBRAMANIAN, PLASSERY, VAYALUKARA, KUNNUKARA VILLAGE, PARAVUR TALUK. 683 515. ADV. SRI.M.S.UNNIKRISHNAN(CAVEATOR) THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR, J ........................................... EX.SA .NO. 24 OF 2010 ............................................ DATED THIS THE 24th DAY OF MAY, 2011 JUDGMENT Appellant is the claimant petitioner in E.P.266 of 2004 on the file of Additional Sub Court, North Paravur. First respondent is the decree holder and second respondent, the judgment debtor. First respondent instituted the suit for specific performance of an agreement for sale. It was the appellant who filed the written statement on behalf of the second respondent/judgment debtor as his power of attorney holder. The suit was subsequently decreed and the property was delivered to the first respondent on 18.11.2003 after confirmation of the court sale in favour of the first respondent, decree holder. The appellant filed E.A.530 of 2009 claiming that appellant entered into an agreement for sale to purchase the property with the second respondent on 12.12.1996 and out of total consideration of Rs.50,000/-, Rs.25,000/-was paid as advance and appellant was put in possession of the property and he constructed the building therein and is residing therein with his family and EXSA 24/2010 2 therefore first respondent cannot take delivery of the property as appellant has got the right under the agreement for sale. First respondent resisted the application contending that in execution of the decree for realisation of the advance amount paid, the property was put up for sale and purchased by the first respondent and sale certificate was issued and when delivery of the property was ordered, one Sreehari filed E.A.862 of 2006 which was subsequently dismissed and it is thereafter the present appellant filed E.A.530 of 2009. It is contended that the appellant has no right over the property and is not entitled to any right based on Ext.A1 agreement. 2. Learned Sub Judge, on the evidence of Pws 1 and 2 and Exts.A1 and B1 and B2 dismissed the petition holding that appellant has no right in the property as he failed to establish the claim. Appellant challenged the judgment before the Additional District Court, North Paravur in A.S.238 of 2000. Learned Additional District Judge, on reappreciation of evidence, confirmed the findings of learned Sub Judge and dismissed the appeal. It is challenged in this second appeal. 3. Learned counsel appearing for appellant and learned counsel appearing for first respondent, who entered appearance EXSA 24/2010 3 on lodging a caveat were heard. 4. On going through the judgments of courts below, I do not find any substantial question of law involved in the appeal. Though the appellant is now claiming right over the property based on Ext.A1 agreement allegedly executed on 12.12.1996, the courts below found that Ext.A1 agreement was not proved and cannot be relied on. Courts below also found that in the very suit it was the appellant who filed written statement on behalf of the second respondent, judgment debtor as his power of attorney. Appellant is none other than the direct brother of second respondent. If appellant had a right under Ext.A1 agreement and he has been in possession of the property as claimed by him, when he filed the written statement on behalf of his brother, the judgment debtor, he would have disclosed the right provided under Ext.A1 agreement. On going through the judgments of the courts below, I find no merit in the appeal. It is accordingly dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk