IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 SA.No. 282 of 1996(A) --------------------- AS.94/1989 of ADDL.SUB COURT, ALAPPUZHA OS.229/1984 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... APPELLANT/APPELLANT/DEFENDANT: ----------------------------------------- KUNJIKRISHNAN THANKAPPAN, VELLOOCHIRAYIL, KUTTAMANGALAM, KAINAKARY. BY ADV. V.N.SWAMINATHAN SRI.S.DILEEP RESPONDENTS/RESPONDENT/PLAINTIFF -------------------------------------------- KUMARAN DAMODARAN, KAYALIPARAMBIL, KUTTAMANGALAM, KAINAKARY. (DIED. LRS IMPLEADED) ADDITIONAL RESPONDENTS 2 TO 6 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED RESPONDENT AS PER ORDER DATED 13/2/03 IN CMP 2450/01 R2. PARVATHY, W/O.DAMODARAN, KAYALIL PARAMBIL, KUTTAMANGALAM.P.O., KAINAKARY, ALAPPUZHA. R3. VASAPPAN, S/O.DAMODARAN, KAYALIL PARAMBIL, KUTTAMANGALAM.P.O., KAINAKARY, ALAPPUZHA. R4. MADANAN, S/O. -DO- -DO- R5. RAMANAN, S/O. -DO- -DO- R6. SANTHAMMA, D/O. -DO-, W/O.MANUJAN, KAYALIL PARAMBIL, KAINAKARY.P.O., ALAPPUZHA. ADV. SRI.P.R.VENKATESH FOR ADDL.R2TO6 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2010, ALONG WITH SA NO. 296 OF 1996 HE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.11/97 & 685/96 IN SA.282/96 DISMISSED 4/2/2010 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. -------------------------------------------- S.A.NOs.282 & 296 OF 1996 -------------------------------------------- Dated 4th February 2010 JUDGMENT Appellant instituted O.S.407/1984 before Munsiff court, Alapuzha seeking a decree for specific performance of Exts.A3 and A5 agreements and to set aside Ext.B1 sale deed executed in favour of the respondent. Respondent instituted O.S.229/1984 seeking a decree for permanent prohibitory injunction. Case of the appellant is that under Ext.A3 agreement dated 5/10/1972 respondent agreed to execute a sale deed in respect of the property which lies immediately to east of kudikidappu property of the appellant having same width of kudikidappu property on consideration of Rs.1,500/- and under SA 282 & 296/96 2 Ext.A5 dated 10/5/1973, appellant respondent agreed to execute sale deed in respect of 6¼ cents which is the balance extent excluding 2½ cents given to the eldest son of the respondent, out of 8 cents in kudikidappu and appellant has been always ready and willing to perform his part of agreement and as respondent failed to execute sale deeds he is entitled to decree for specific performance of agreement for sale. Respondent resisted the suit contending that the suit is barred by limitation and at no point of time respondent has any kudikidappu right or resided in 30 cents of the property and appellant is residing on the western side of 30 cents and the property situated on the western side of SA 282 & 296/96 3 30 cents belonged to Kunchappan, Velloor purayil house and Ext.B1 is valid sale deed which cannot be set aside as sought for. It is contended that there was no agreement for sale or receipt of any advance amount and no property was put in the possession of the appellant and hence is not entitled to the decree sought for and as the appellant is attempted to trespass into the property, he is entitled to get a decree for injunction. 2. Learned Munsiff tried both the suits jointly. O.S.407/1984 was treated as main case and witnesses of the plaintiff were examined as Pws.1 to 6 and defendant and his witness were examined as Dws.1 and 2, Exts.A1 to A8, B1, C1 to C3 and X1 were also marked. Learned Munsiff on the SA 282 & 296/96 4 evidence found that Exts.A3 and A5 agreements are respectively dated 5/10/1972 and 10/5/1973 and as per the agreement the time prescribed for performance of the agreement is thirty days and as suit is filed after twelve years, the suit is barred by limitation as provided under Article 54 of Limitation Act. Learned Munsiff also found that property obtained by the appellant under Ext.A6 purchase certificate is not proved to be part of the property obtained under Ext.A1 and therefore, appellant is not entitled to a decree to set aside Ext.B1 sale deed. Finding that respondent has been in possession of the property a decree for injunction was granted in favour of plaintiff in O.S.229/1984. SA 282 & 296/96 5 O.S.407/1984 was dismissed. Appellant challenged the judgment before the Sub court, Alappuzha in A.S.93/1989 and 94/1989. Learned Sub Judge on re- appreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeals. Second appeals are filed challenging judgment and decree of the first appellate court confirming decree and judgment of the trial court. S.A.282/1996 is filed against concurrent decree and judgment in O.S.229/1984 and S.A.296/1996 against the concurrent judgments in O.S.407/1984. Appeals were admitted formulating following substantial questions of law. 1) In the light of Section 78 of Kerala Land Reforms Act whether courts below went wrong SA 282 & 296/96 6 in finding that first respondent has no alienable right in respect of the property in Ext.A5. 2) In case limitation is liable to be computed from Ext.B1 date, whether suit on the basis of Ext.A5 is barred by limitation. 3) On the statement of first defendant under Ext.A5 that possession was handed over to the plaintiff, is not the first defendant estopped from contending that plaintiff is not in possession of the property. 3. Learned counsel appearing for the appellant was heard. 4. When second appeal was pending, first respondent died and his legal heirs were impleaded as respondents 2 to 6 in S.A.282/1996 and respondents 4 to 8 in SA 282 & 296/96 7 S.A.296/1996. Learned counsel appearing for the appellant argued that when Exts.A3 to A5 establish that deceased first respondent had agreed to sell the properties stated therein, courts below should have found that appellant is entitled to a decree for specific performance of agreement. It was argued that property agreed to be sold under Exts.A3 and A5 are subject matter of the agreement for sale in favour of the respondent and when Ext.B1 sale deed was executed only later, period of limitation is to be computed only from the date of execution of Ext.B1 and therefore, findings of the courts below that claim for specific performance for sale is barred by limitation is not correct. SA 282 & 296/96 8 Learned counsel appearing for the appellant also argued that Ext.A6 purchase certificate issued by the Land Tribunal in O.A.62/1979 with Ext.A4 copy of the mahazar prepared by the Revenue Inspector establishes that appellant assigned 10 cents of kudikidappu property and Ext.C2 plan shows that the said kudikidappu is plot No.5 in Ext.C3 and in such circumstances, it should have been found that first respondent could not purchase 20 cents of the property which lies to the north of plot No.5 and hence Ext.B1 should necessarily take in a portion of plot No.5 which is the kudikidappu property and to that extent, Ext.B1 wasfraudulently obtained and it is to be set aside. SA 282 & 296/96 9 5. Suit instituted by the appellant is mainly for specific performance of Exts.A3 and A5 agreements for sale. They are unregistered agreements. Ext.A3 is dated 5/10/1972 and Ext.A5 is dated 10/5/1973. Ext.A3 shows that first respondent agreed to assign the property which lies immediately to the east of kudikidappu property of the appellant on receipt of Rs.1,500/-. Under Ext.A3, if first respondent fails to execute the sale deed, for the reason that he could not purchase the property, which was agreed to be sold to him, first respondent has to assign that much property which lies to the north of kudikidappu property. 6. Based on Ext.A3, the property SA 282 & 296/96 10 agreed to be sold thereunder cannot be fixed at all. Even extent of the property is not mentioned in Ext.A3 agreement. The only indication is that the property so agreed to be sold lies to east of kudikidappu property. Even according to the appellant his kudikidappu property is plot No.5 marked in Ext.C3 plan. If under Ext.A3 the property agreed to be sold, could only be the property situated to the east of plot No.5 which is a wet land in R.S.207/1. Appellant has no case that first respondent has any right in that property. Instead, according to the appellant, property which belongs to the first respondent lies to the north of plot No.5. Therefore, based on Ext.A3, appellant is not entitled to get specific SA 282 & 296/96 11 performance of an agreement for sale, as no property which lies to the north of his property belongs to the first respondent. 7. Ext.A5 executed on 10/5/1973 shows that first respondent had agreed to execute a sale deed in respect of 6¼ cents in favour of the appellant on receipt of Rs.1,500/- on that day. But, which is that 6¼ cents is the question. As per Ext.A5 it is a part of 8 cents of kudikidappu belonging to the first respondent out of which 2½ cents was given by the first respondent to his son and the balance is the property agreed to be sold. Appellant has no case that on the date of execution of Ext.A5, first respondent had purchased any kudikidappu right. Instead inclusive of kudikidappu right 20 cents was sold to SA 282 & 296/96 12 first respondent only on 23/6/1983. Therefore, on execution of Ext.A5 agreement, at best first respondent had only a right to purchase kudikidappu. But before ascertaining how much extent he is entitled to and if so, what is the identity, no sale deed could be executed. Therefore, courts below rightly found that appellant is not entitled to a decree for specific performance of agreement. 8. Added to this, claim for specific performance is clearly barred by limitation. Under Article 54 of Limitation Act period of limitation is three years and period starts to run from the date prescribed for execution of sale deed or if no time is prescribed when performance was refused by the executent of the SA 282 & 296/96 13 agreement. Under Exts.A3 and A4 agreements executed in 1972 and 1973, sale deeds were to be executed within one month. Therefore, period of limitation would start to run on the expiry of period. Suit was instituted only in 1984, which is clearly barred by limitation. In such circumstances, I find no reason to interfere with the decree and judgment in O.S.407/1984 as confirmed in A.S.93/1989. 9. Even though it is argued that in view of Ext.A6 purchase certificate issued to the appellant, first respondent will not get any right under Ext.B1 and therefore, Ext.B1 is to be set aside, there is no evidence to prove that Ext.B1 takes in any portion of kudikidappu property. Learned counsel appearing for SA 282 & 296/96 14 the appellant argued that if plot No.5 as demarcated in Ext.C3 plan is kudikidappu property there cannot be 20 cents to its north and therefore, necessarily, a portion of kudikidappu shall also be covered by the sale deed. But if plot No.5 is further shifted towards the south the said difficulty will not arise. More over, it is not known for what purpose appellant has to set aside Ext.B1 sale deed in which, he is not a party. Ext.B1 was executed much after purchase of kudikidappu by the appellant. If Ext.B1 takes in any portion of the kudikidappu property, it will not be valid or binding as against the appellant or his property. In such circumstances, I do not find any reason to interfere with the decree. When SA 282 & 296/96 15 first respondent is found to be in possession of the property, learned Munsiff was justified in granting a decree for injunction in O.S.229/1984 and the appellate court confirming the same. I find no merit in the appeal. They are dismissed. 10. Though learned counsel appearing for appellant relied on the decision in Rojasara Ramjibhai Dahyabhai v. Jani Narottamdas Lallubai (AIR 1986 SC 1912), it has no application on the facts of the case. If agreement for sale provide that sale deed is to be executed on getting a sale deed by respondent, period of limitation would start to run only on getting the sale deed executed in favour of the respondent. But what is SA 282 & 296/96 16 provided under Ext.A5 is that the sale deed would be executed within thirty days from the date of execution of the agreement and not from thirty days of getting a sale deed executed in favour of the respondent. More over, if the respondent who agreed to sell the property has only right to execute another agreement for sale, appellant cannot get a decree for specific performance of the agreement for execution of sale deed by the respondent. Therefore, appeals fail and are dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.