IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 RSA.No. 926 of 2011() --------------------- AS.20/2008 of SUB COURT,KATTAPPANA OS.82/2005 of MUNSIFF COURT,KATTAPPANA .................... APPELLANT/PLAINTIFF --------------------------------------- K.P.PRASAD,S/O.PAPPY,AGED 36 YEARS, R/AT KANATHIL HOUSE,ANYARTHOLU KARA, PAMBADUMPARA VILLAGE,UDUMBANCHOLA TALUK. BY ADV. SRI.A.SHAFEEK (KAYAMKULAM) RESPONDENT(S): --------------- E.C.SUKUMARAN,S/O.CHELLAPPAN,R/AT EETTAPURATHU HOUSE,KUZHIKANDOM KARA, KARUNAPURAM VILLAGE,UDUMBANCHOLA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No. 926 of 2011 ............................................ DATED THIS THE 25th DAY OF AUGUST, 2011 JUDGMENT Plaintiff in O.S.82 of 2005 on the file of Munsiff Court, Kattappana is the appellant. Respondent is the defendant. Suit was filed for execution of Ext.A1 agreement for sale allegedly executed by the respondent on 31.12.2004. Appellant contended that respondent agreed to sell the plaint schedule property for a consideration of Rs.85,000/- and received Rs.65,000/- as advance, being part of the sale consideration, and executed Ext.A1 agreement whereunder he agreed to execute the sale deed after receipt of the balance consideration of Rs.20,000/- on or before 7.3.2005 and he has always been ready and willing to perform his part of the agreement and in spite of Ext.A4 notice demanding execution of the sale deed, respondent did not execute the sale deed. He therefore sought a decree for specific performance of Ext.A1 agreement. Respondent resisted the suit contending that he did not execute Ext.A1 agreement and did not receive any amount as advance and the signature seen in Ext.A1 rsa 926/11 2 is not his signature and the document is forged and based on the forged document, the suit is instituted. It was also contended that appellant was conducting an unregistered chitty and respondent was a subscriber and though he remitted the entire chitty amount, appellant demanded more money and he was not ready to make such payment and hence the document was forged and the suit was instituted. 2. Learned Munsiff, on the evidence of Pws 1 to 3, DW1, Exts.A1 to A5, B1, B2, X1 and X2 series dismissed the suit holding that appellant did not establish that Ext.A1 was executed by the respondent. Appellant challenged the decree and judgment before Sub Court, Kattappana in A.S.20 of 2008. Learned Sub Judge on re-appreciation of the evidence confirmed the finding of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that courts below did not properly appreciate the evidence and based on a comparison of the signature seen in Ext.X1 and X2 series, courts below should have found that the signature of the respondent seen in Ext.A1 is rsa 926/11 3 that of the respondent. Learned counsel would also argue that though PW2 is not an attesting witness, he was the scribe of Ext.A1 and his evidence show that respondent executed Ext.A1 in his presence and there is no reason to disbelieve the evidence. Learned counsel also argued that Exts.A2 and A3, copy of the title deed and tax receipt would establish the genuineness of Ext.A1 agreement and as they are only copies, entrustment of the copies were not mentioned in Ext.A1 and in such circumstances, the finding of the courts below is to be interfered. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. In the written statement, respondent has specifically and unambiguously contended that he did not execute Ext.A1 agreement and the signature seen in Ext.A1 is not his signature. Apart from producing Ext.X1 and X2 series, which contain the signature of the respondent, appellant did not send Ext.A1 to an expert for comparison of the handwriting seen in Ext.A1 with the admitted signature of the respondent, in spite of the specific plea in written statement that the signature seen in Ext.A1 is not that of the respondent. Ext.A1 shows that it was executed in the presence rsa 926/11 4 of two witnesses. Though PW2 was the scribe, he did not sign in Ext.A1 as an attesting witness. He signed therein only as the scribe. In spite of the plea that respondent did not execute Ext.A1, appellant did not examine at least one of the attesting witnesses. The courts below, on a comparison of the signature seen in Ext.A1 with the signature seen in Ext.X1 and X2 series found that there is no similarity in the signatures. In the light of these factual findings and the non-examination of at least one of the attesting witnesses to Ext.A1 and also for not sending Ext.A1 to an expert for comparison of the signature, finding of the courts below cannot be interfered. As no substantial question of law is involved, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk