IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 AS.No. 857 of 1998() -------------------- OS.194/1995 of SUB COURT, KASARAGOD .................... APPELLANT(S): 1ST DEFENDANT -------------- KUNHIKANNAN MANIYANI, RESIDING AT ODUBULA, PADDY VILLAGE, KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.P.K.MUHAMMED RESPONDENT(S): PLAINTIFF AND 2ND DEFENDANT --------------- 1. CHANDRAN NAIR, CHENNAKODE, PADDY VILLAGE, KASARAGOD TALUK AND DISTRICT. 2. K.. LAKSHMI, VADAMBULA, PADDY VILLAGE, KASARAGOD TALUK AND DISTRICT. ADV. SRI.K.G.GOURI SANKAR RAI THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- A.S. 857 OF 1998 -------------------------------------- Dated: AUGUST 17, 2009 JUDGMENT The 1st defendant in O.S.194/1995 of Sub Court, Kasaragod, which is a suit for specific performance of an agreement for sale, Ext.A1 dated September 22, 1994, is the appellant. The lower court granted a decree for recovery of the advance amount paid with interest and costs, which is challenged in this appeal. 2. The case of the 1st respondent/plaintiff before the lower court as stated in the plaint and as testified by him as PW.1 before the lower court in brief is this: The plaintiff agreed to purchase and the defendant agreed to sell the plaint schedule properties belonging to the defendant for a sale consideration of Rs.70,000/-. Rs.52,000/- was paid as advance and Ext.A1 agreement was entered into between the plaintiff and the 1st defendant on September 22, 1994. The agreement was to execute the sale deed within a year from the date of agreement on payment of balance of sale consideration. In spite of the notice issued by the plaintiff, the 1st defendant refused to execute the sale deed or repay the advance amount received. A.S. 857 OF 1998 2 3. The appellant/1st defendant in his written statement and as DW.1 contended that the plaint schedule properties belong to his wife, supplementary 2nd defendant, under a settlement deed Ext.B1 dated May 16, 1991, that Ext.A1 is a sham document and that on the request of the plaintiff, the appellant/1st defendant has put signature and thumb impression in blank stamp papers bona fide believing that it was for attesting a document and that therefore the suit has to be dismissed. The supplemental 2nd defendant who is the wife of the 1st defendant filed a written statement stating that the plaint A schedule properties belong to her under Ext.B1 and that she is an unnecessary party to the suit. 4. On the side of the plaintiff Pws.1 to 3 were examined and Exts.A1 to A4 were marked before the lower court. The 1st defendant was examined as DW.1 and he produced Exts.B1 to B3. The lower court on an appreciation of evidence found that Ext.A1 was executed by the 1st defendant and that he received an advance amount of Rs.52000/- and granted a decree for recovery of the advance amount with interest and costs. The 1st defendant has now come up in appeal. A.S. 857 OF 1998 3 5. Sri P.K.Mohammed, learned counsel for the appellant, argued that the agreement Ext.A1 was not properly proved by the plaintiff/1st respondent and that Ext.A1 is in Kannada which he did not know and that the lower court should have dismissed the suit. 6. The learned counsel for the 1st respondent/plaintiff Sri Gowri Shankar Rai, would point out that even at the time of execution of Ext.A1, the 1st defendant had no right over the properties and that suppressing Ext.B1, he executed Ext.A1 agreement and that therefore the lower court is justified in granting a decree for recovery of the advance amount. 7. The main question for consideration is whether the 1st respondent/plaintiff has succeeded in proving execution of Ext.A1 by the 1st defendant and also the receipt of the advance amount. The lower court has discussed in detail the evidence of PW.1, P.W.2, the attesting witness to Ext.A1, and PW.3, the scribe of Ext.A1, and found their evidence believable. I have also gone through the evidence of Pws.1 to 3 and find no reason to disbelieve their evidence. Their evidence was not shaken in cross-examination regarding the execution of Ext.A1 and the A.S. 857 OF 1998 4 receipt of the advance amount. 8. As regards the evidence of DW.1, he has not specifically denied his signature in Ext.A1. When questioned, his answer was that it might be his signature. The lower court has also discussed his evidence in detail and found that he has given false evidence. Ext.A4 is the copy of the sale deed in favour of the defendant. In Ext.A1 all the details of the properties and other details of Ext.A4 was seen incorporated. It is difficult to believe that the plaintiff must have created Ext.A1 showing the details of the properties shown in Ext.A4. I have gone through the evidence adduced by both parties before the lower court and I am of the view that the lower court is perfectly justified in believing the evidence of Pws.1 to 3 and rejecting the evidence of DW.1 and coming to the conclusion that Ext.A1 was executed by the plaintiff and that he has received an advance amount of Rs.52000/-. That being so, confirming the decree passed by the lower court, the appeal has to be dismissed. In the result the appeal is dismissed with costs. P.Q. BARKATH ALI, JUDGE mt/-