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. 856 of 2011() --------------------- AS.65/2007 of I ADDL. DISTRICT COURT, PALAKKAD OS.114/1994 of MUNI-MAGI.COURT,MANNARKAD .................... APPELLANTS ------------------------------ 1. RAMAKRISHNAN, S/O.THODAPPAN MOOTHAN, RESIDING AT THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, P.O PALODE-678 583. 2. DEVAKI, W/O.RAMAKRISHNAN, RESIDING AT THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, P.O PALODE-678 583. BY ADV. SRI.D.KRISHNA PRASAD SMT.O.K.SANTHA SMT.S.SANTHY RESPONDENT(S): --------------- 1. KALIYAPPA MOOTHAN, S/O.KUNHAN MOOTHAN, PADINHARE KARIPADATH HOUSE, THACHANATTUKARA, MANNARKKAD TALUK, P.O.PALODE-678 583. 2. UNNIKRISHNAN, S/O.KUTTA GUPTHAN, RESIDING AT PALODE, THACHANATTUKARA, MANNARKKAD TALUK, P.O.PALODE-678 583. 3. RAMACHANDRAN, S/O.KUTTA GUPTHAN, RESIDING AT PALODE, THACHANATTUKARA, MANNARKKAD TALUK, P.O.PALODE-678 583. 4. BALAKRISHNAN, S/O.KUTTA GUPTHAN, RESIDING AT PALODE, THACHANATTUKARA, MANNARKKAD TALUK, P.O.PALODE-678 583. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/10/2011, ALONG WITH RSA NO. 895 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA Nos. 856 & 895 of 2011 ............................................ DATED THIS THE 21st DAY OF OCTOBER, 2011 JUDGMENT Plaintiffs in O.S.123 of 1994 on the file of Munsiff Court, Mannarkkad who are defendants in O.S.114 of 1994 on the file of the same court are the appellants. The legal representatives of defendants in O.S.123 of 1994 are the respondents in both the appeals. O.S.114 of 1994 was instituted for a permanent prohibitory injunction by the deceased plaintiff against the appellants seeking a decree for permanent prohibitory injunction. Appellants instituted O.S.123 of 1994 seeking a decree for specific performance of Ext.B1 agreement for sale. The plaintiff in O.S.114 of 1994 contended that plaint schedule property originally belonged in jenmom to Elamkunnu Devaswom and it was obtained by Kali Chettichiyar, grand mother, on pattam right and later plaintiff obtained it on oral lease and purchased the jenmom right from the Land Tribunal and purchase certificate 131/1975 was issued by Land Tribunal, Ottapalam and thus he has absolute title to and possession of the property. It is RSA 856/2011 2 contended that the property was originally a single plot but later due to formation of the panchayat road, it was divided into two plots on either side of the road. The property is having well defined boundaries and the defendants have no manner of right or title or possession of the property and they are attempting to trespass into the plaint schedule property, contending that there was an agreement to sell the plaint schedule property in their favour when there was no such agreement. Hence they are to be restrained by a permanent prohibitory injunction. Appellants resisted the suit admitting the title of the plaintiff but contending that plaintiff and his brother Kuttan Moothan had given possession of 1.73 acres of the property in Survey No.165/1A1A, pursuant to an agreement on 5.5.1963 for a total sale consideration of Rs.1500/- after receiving Rs.1000/- as advance. Later on 14.5.1980 Ext.B1 written agreement was executed between them and balance consideration of Rs.500/- was also paid on that date with the stipulation that a registered deed would be executed as and when demanded. Stating that the case is pending before revenue authorities, sale deed was not executed and the property has been in the exclusive possession RSA 856/2011 3 of appellants since 1963 and therefore the plaintiff is not entitled to the decree for injunction sought for. In O.S.123 of 1994, appellants sought a decree for specific performance of Ext.B1 agreement for sale re-iterating the same contentions raised in O.S.114 of 1994 and additionally contending that they have always been ready and willing to perform their part of the agreement and the defendants in O.S.123 of 1994 are therefore bound to execute the sale deed. Defendants resisted the suit based on the same contentions raised in O.S.114 of 1994. Learned Munsiff tried both the suits together. 2. On the evidence of PW1, DWs 1 and 2, Exts.A1 to A7, B1 to B4 and C1 and C4, learned Munsiff dismissed O.S.123 of 1994 holding that the agreement for sale set up by the appellants is not established and granted a decree in O.S.114 of 1994 holding that plaintiff established possession of the plaint schedule property. Appellants challenged the decree and judgment before District Court, Palakkad in A.S.Nos 60 of 2007 and 65 of 2007. Learned District Judge, on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeals. They are challenged in these appeals. RSA 895 of 2011 RSA 856/2011 4 is filed against the concurrent decree in O.S.123 of 1994 and RSA 856 of 2011 is filed against the concurrent decree in O.S.114 of 1994. 3. Learned counsel appearing for appellants was heard. The argument of the learned counsel is that courts below did not properly appreciate the evidence and was not justified in disbelieving Ext.B1 agreement. Learned counsel would argue that courts below should not have compared the signature seen in Ext.B2 to enter a finding whether Ext.B1 is genuine or not. Learned counsel would argue that on a proper appreciation of evidence it is clear that Ext.B1 is a genuine agreement and there was an agreement for sale, entered into by the plaintiffs and defendants in O.S.123 of 1994, in 1963 itself which was re- iterated in Ext.B1 agreement and in such circumstances, a decree for specific performance of the agreeement for sale should have been granted. Learned counsel also argued that in any case, when the evidence establish that possession of the property was with the appellants, a decree for injunction should not have been granted in O.S.114 of 1994. Learned counsel would argue that appellants have produced Ext.B2 series of tax receipts and when RSA 856/2011 5 appellants have produced the basic tax receipts prior to the institution of the suit, a decree for injunction should not have been granted against them. 4. On hearing the learned counsel, I do not find any substantial question of law is involved in the appeal. O.S.123 of 1994 is a suit for specific performance of Ext.B1 agreement for sale. Defendants in the suit are denying the agreement. As rightly found by the courts below, the burden is on the appellants to establish the agreement. Though DW2 was examined, courts below for proper and valid reasons did not rely on the evidence. If Ext.B1 agreement is to be believed, the property was handed over to the appellants on 5.5.1963 at a time when the first appellant was aged only 13 years on the date of the agreement. So also his wife the second appellant was aged only 7 years at that time. Moreover, as per the evidence of DW2, possession was not handed over under Ext.B1 agreement as possession was with the appellants earlier under an entrustment in 1963. According to the evidence of appellants, possession was handed over pursuant to an agreement entered into on a mediation talk at the intervention of Narayanan Guptan, who is still alive and who was RSA 856/2011 6 not examined. On a proper appreciation of the evidence, courts below rightly found that Ext.B1 agreement was not proved and held that appellants are not entitled to the decree for specific performance of agreement for sale. On the evidence factual finding is perfectly legal. 5. Then the only question is on the decree for injunction granted against the appellants. The question whether plaintiff in O.S.114 of 1994 or the defendants therein was in possession of the plaint schedule property on the date of the suit, is a finding of fact. Trial court on proper appreciation of evidence entered a finding of fact that plaintiff has been in possession of the property and defendants in O.S.114 of 1994 were not in possession of the property. First appellate court on re-appreciation of the evidence confirmed the factual finding. That factual finding cannot be interfered in exercise of the powers under Section 100 of Code of Civil Procedure. Though learned counsel vehemently argued that as the basic tax receipt prior to the institution of the suit was filed by the appellants and hence possession is to be found with them, it is to be borne in mind that appellants had sent a lawyer notice to the respondents in February, 1992 and the tax receipt RSA 856/2011 7 relied upon by the learned counsel is of 15th March 1993 just on the eve of the institution of the suit. In the light of that factual finding, no substantial question of law is involved in the appeals. Appeals are dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk