IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 RSA.No. 341 of 2009() --------------------- AS.101/1998 of SUB COURT, OTTAPPALAM OS.319/1994 of MUNSIFF COURT, OTTAPPALAM .................... APPELANTS: APPELLANTS/DEFENDANTS 1 TO 3 ------------------------------------------------ 1. RAJEEV, S/O.LATE KARIPPALI SANKARA GUPTAN. 2. GANESAN, S/O.LATE KARIPPALI SANKARA GUPTAN. 3. LATHA, S/O. LATE KARIPPALI SANKARA GUPTAN. ALL ARE RESIDING AT PULLUNDASSERY AMSOM, AZHIYANNUR DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.C.A.ANOOP RESPONDENTS/RESPONDENTS/PLAINTIFFS ----------------------------------------------------------- 1. BALAKRISHNA GUPTAN, S/O.LATE APPU MOOTHAN. 2. BHARGAVI AMMA, WIDOW OF RAMAKRISHNA GUPTHAN. 3. VENUGOPALAN, S/O.LATE RAMAKRISHNA GUPTAN. 4. THANKAMMU, D/O. LATE RAMAKRISHNA GUPTAN. 5. RADHA, D/O.LATE RAMAKRISHNA GUPTAN. 6. BINDU, D/O.LATE RAMAKRISHNA GUPTAN. ALL ARE RESIDING AT KUMARAPUTHUR AMSOM, MANNARKKAD TALUK, PALAKKAD DISTRICT. ADV. SMT.T.D.RAJALAKSHMI FOR R1-6 SRI.R.SREEHARI FOR R1-6 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 341 of 2009 ---------------------------------------- Dated this the 15th day of July, 2009 JUDGMENT The second appeal is directed against the judgment and decree in A.S. No. 101/1998 on the file of the Sub court, Ottappalam which arises from the judgment and decree in O.S. No. 319/1994 on the file of the Munsiff Court, Ottappalam The suit was filed for specific performance of the contract. The trial court decreed the suit as prayed for,and confirmed in appeal by the lower appellate court. Hence the second appeal. Defendants 1 to 3 in the suit are the appellants herein. The parties hereinafter referred to as plaintiffs and defendants. 2. It is the plaintiffs' case that as per Ext.A1 agreement dated 1.11.1989 the defendants agreed to sell the plaint schedule property to the plaintiffs for value of Rs. 250/- per Cent. Time limit was fixed as 31.9.1990. The plaintiffs paid Rs. 50,000/- as advance amount. The total consideration is Rs. 56,000/- There are five items of property. On 30.1.1991 the defendants executed the sale deed transferring items 1, 2, 4 and 5 to the plaintiffs and it was mentioned in Ext.A1 agreement that the sale deed in respect of item No.3 would be executed after six months from the date of disposal of O.S. No. 292/1988. Item No. 3 property is described as B schedule property in the plaint. Since the defendants did not execute the sale deed in respect of item No.3/ Plaint B schedule R.S.A. No. 341 of 2009 -2- property as agreed, the present suit was filed for specific performance. 3. The defendants contested the suit and contended that the allegation to the effect that the possession of the properties was handed over to the plaintiff on the date of Ext.A1 agreement is not correct. . According to the defendants the extension of six months from the date of Ext.A1 agreement is also not correct and is a false claim. According to them the suit is barred by limitation and that the endorsement in the said agreement with respect to the Plaint B schedule property (item No.3 property) is a fabricated one for the purpose of overcoming the limitation 4. The evidence in this case consists of PWs1 and 2, DWs 1 and 2 , Exts A1 to A7, B1 to B2 and C1. 5. After discussing at length the oral evidence tendered by the plaintiffs and their witnesses the trial court in paragraph 8 held that the endorsement marked as Exts A1(a) is not a fabricated one. The trial court also compared the signatures of the 1st defendant which he put in Exts.A1, A1(a),B1, Vakalath, written statement and Ext A5, and satisfied that Ext.A1(a) endorsement was made by none other than the parties to the suit and that the 1st defendant has also put his signatures in the said Exhibits. Therefore the trial court concluded that that there was execution of agreement as per Ext.A1 and an extension of time of Ext.A1 agreement by virtue of Ext.A1(a) on 30.8.1990 The question of delay was also considered by the trial court and rightly held that it is trite law in case of immovable properties, time is usually not the essence of the R.S.A. No. 341 of 2009 -3- contract unless and until there is stipulation in the agreement with respect to that. The pleas of the defendants that there was a separate agreement to exclude item No. 3 from Ext.A1 agreement, that the plaintiffs will get unfair advantage by decreeing the suit are also not accepted by the trial court. Resultantly the trial court granted a decree in favour of the plaintiffs holding that the plaintiffs are entitled to specific performance of the contract of the B schedule property . 6. The lower appellate court also considered the contentions raised by the defendants/ appellants on the basis of the evidence adduced by the parties. The lower appellate court has reached the very same conclusions and agreed with the findings of the trial court I find that no grounds are made out to invoke the jurisdiction under Section 100 of the C.P.C. in this second appeal. The findings of the courts below are solely based on the facts, evidence and circumstances I do not find any reason to take a different view other than the views taken by the courts below in the given circumstances. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 341 of 2009 ---------------------------- JUDGMENT 15th July, 2009