IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 AS.No. 597 of 1999(D) -------------------------------- OS.78/1995 of SUB COURT, PALA .................... APPELLANT(S): DEFENDANTS 1 AND 3 -------------------------------------------------------- 1. K.R.RAJAMMA (DIED W/O. MADHAVAN NAIR, MURALEEBHAVAN, KOZHA KARA, KURAVILANGADU, KOTTAYAM. 2. K.M.MURALEEDHARAN NAIR, MURALEEBHAVAN, KOZHAKARA, KURAVILANGADU, KOTTAYAM. BY ADV. SRI.P.BABU KUMAR RESPONDENT(S): PLAINTIFF AND 2ND DEFENDANTS ----------------------------------------------------------------------------- 1. SASIDHARAN NAIR, KOVATTARACKAL HOUSE, KOZHAKARA, KURAVILANGADU. 2. RAJAPPAN NAIR, ASOK BHAVAN, KURAVILANGADU, KOTTAYAM. R1 BY ADV. SRI.GEORGEKUTTY MATHEW THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO. 2182/2005 IN AS. 597/1999 DISMISSED 29/07/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 597 OF 1999 = = = = = = = = = = = = = = = Dated this the 29th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Pala in O.S.78/95. The suit was one for specific performance of the contract and the court below has granted a decree in favour of the plaintiff. It is against that decision the 3rd defendant has come up in appeal. The brief facts necessary for the disposal of the appeal are stated as follows. The property described in the plaint schedule property belonged to the first defendant. She is the sister of the plaintiff's mother. Regarding the sale of the property belonging to the first defendant there was an agreement entered into on 22.8.92 and as the consideration had been paid the plaintiff has been put into possession of the property and the stipulation is to execute the document as desired by the plaintiff. But to A.S. 597 OF 1999 -2- the disappointment of the plaintiff the first defendant had entered into a registered agreement for sale with a third person and therefore the plaintiff has filed a suit for specific performance. 2. The first defendant on the other would contend that she has not entered into any agreement with the plaintiff and the plaintiff has no right to get a decree for specific performance. It is submitted that the defendant has put the tenant into possession and one Thankamma is running a tailoring shop there. Coming to know about the intention of the first defendant to sell the property, the plaintiff approached and offered a very unreasonable amount for which the first defendant did not agree and thereafter decided to sell the property to one Rajappan Nair and had entered into a registered agreement with respect to the same. Therefore the plaintiff is not entitled to the relief. A.S. 597 OF 1999 -3- 3. In the trial Court Exts.A1 and A2 were marked and PWs.1 to 3 were examined. In appeal Exts.B1 to B3 had been marked. On an analysis of the materials the Court below granted a decree in favour of the plaintiff. During the pendency of the proceedings the first defendant died and her legal representative has been impleaded as third defendant who is the appellant before this Court. PW1 is the plaintiff. He had deposed in tune with the averments in the plaint and had deposed before Court that Ext.A1 was executed between the plaintiff and the first defendant and he had paid a consideration of Rs.50,000/- and that he had been inducted into possession of the property and that he had entrusted one C.V.Thankamma as the tenant of the property. Though he had been cross-examined nothing has been brought out to discredit his evidence. 4. PW2 is one of the witnesses to Ext.A1, namely George. He had deposed before Court he knows plaintiff A.S. 597 OF 1999 -4- and defendants for a long time and that he was present when Ext.A1 was executed and he had seen her affixing the signature in the document, Ext.A1. He would depose that one of the witnesses is a ward member. In the cross examination he had stated that the document is for the purpose of selling the property and it is written about 5 or 6 years back. Then questions are put with respect to some other agreement for which the witness had replied that he cannot say without seeing the document. It has also stated that the first defendant had read the contents of the document and had signed the same. He had denied the suggestion that Ext.A1 is a fraudulent creation. PW3 is Thankamma, the tenant. She had deposed before Court that it was the plaintiff who had entrusted her the property and therefore she is the tenant under him. As against this evidence the 3rd defendant did not mount the box nor tender any documentary evidence in support of its contention. In A.S. 597 OF 1999 -5- order to highlight the contentions, the appellants had produced documents along with I.A.2641/10 and those documents are the judgment and decree of the District Court, Kottayam in A.S.141/05. Another document is a document said to be executed between the plaintiff and the 3rd defendant and it has to be stated that it has nothing to do with the plaint schedule property but with respect to some other transaction entered into between them. So that will not even if accepted would improve the case of the appellant. The documents produced by the defendants are received now for the reason that two documents have come into existence after the passing of the judgment of the trial court. The trial court passed its judgment in 1999 and this judgment is of the appellate court of 2005. These documents are relied upon by the appellant to establish that Thankamma had surrendered possession of the property to the first defendant and therefore the evidence of her as PW3 cannot be A.S. 597 OF 1999 -6- accepted. It is very interesting to note that the present plaintiff was the 1st respondent in the appeal. What the first defendant in this case had done as the appellant was to remove the present plaintiffs(2nd respondent and 4th respondent) from the party array and then to arrive at a compromise stating that the property has been given back to the first defendant by Thankamma It is only an after thought and it cannot militate against the case of the plaintiff. It was the very same Thankamma as PW3 has deposed that she is a tenant under he plaintiff. So the evidence of PWs.1 and 2 convincingly establish about the execution of the agreement and the intention to sell the property on receipt of consideration of Rs.50,000/-. There is no contra evidence tendered by the defendants at all in this case and nothing has been brought out in cross-examination to discard the evidence of PWs.1 and 2. Therefore I do not find any ground to interfere with the decision rendered by the trial court in granting a decree A.S. 597 OF 1999 -7- for specific performance. Therefore the appeal fails and the same is dismissed confirming the judgment and decree of the trial Court. There will not be any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 597 OF 1999 -8- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 597 OF 1999 = = = = = = = = = = = J U D G M E N T 29th July, 2010.