IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 WP(C).No. 27614 of 2010(O) ------------------------- OS.248/2009 of MUNSIFF COURT, ALATHUR CMA NO. 48/2010 OF DISTRICT COURT, PALAKKAD ............................................................................... PETITIONER: ----------------- HAMEED, S/O. SAITHU MUHAMMED RAWTHER, RESIDING AT NERAVAKKODE, CHITHALI, COYALMANNAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT- 678 702. BY ADVS. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P. THOMAS SRI.P.S.APPU SRI.C.A.ANOOP RESPONDENT(S): --------------- 1. JAYARAMAN, S/O.SANKUNNI. 2. GIRISH, S/O.JAYARAMAN. BOTH ARE RESIDING AT EKKODE, CHITHALI, COYALMANNAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT-678 702. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn THOMAS P JOSEPH,J. --------------------------------------- W.P(C).NO. 27614 OF 2010 ------------------------------------------ Dated this the 7th day of September, 2010. JUDGMENT This writ petition is at the instance of the defendant in O.S.No.248 of 2009 of the court of learned Munsiff, Alathur. According to the petitioner, respondents-plaintiffs agreed to sell item Nos.1 to 4 and 8 of the plaint schedule to him as per agreement for sale dated 23-03-2008. It is the case of petitioner that respondents received altogether Rs.13,00,000/- out of the total sale consideration of Rs. 22,28,000/- by way of advance sale consideration. It is also the case of petitioner that time for execution of the sale deed was extended from 16-09-2009. On 12-09-2009 when Rs.3 lakhs paid to the respondents, petitioner was put in possession of the said properties and endorsement to that effect was also made by the respondents on the agreement for sale. Since then petitioner is in possession of the said properties. While so, petitioner issued Ext.A7 notice on 12-09-2009 demanding specific performance of the agreement. To that, respondents replied by Ext.P8 stating that on account of some order of injunction passed by court they are unable to perform the agreement. Petitioner sent Ext.A9, notice requesting respondents to give details of the suit in which according to the respondents there is an order of injunction against their performing the agreement for sale. Respondents filed O.S.No.248 of 2009 seeking a decree for prohibitory W.P(C).NO. 27614 OF 2010 2 injunction against petitioner trespassing into the suit properties claiming that they are in possession thereof and filed I.A.No.1283 of 2009 for an order of temporary injunction. That application was opposed by petitioner contending that on 16-09-2009 he was put in possession of the properties as stated above. Learned Munsiff did not accept that claim of petitioner, found that prima facie respondents are in possession of the suit properties and allowed I.A.No.1283 of 2009. Petitioner challenged that order in C.M.A.No.48 of 2009 before a learned Addl. District Judge-I, Palakad. When that appeal was pending, the court directed harvesting of crops in the properties and the proceeds of the crops is deposited in court. Learned Additional District Judge dismissed the C.M.Appeal by Ext.P2, judgment which is challenged in this writ petition. Learned Senior Advocate contended that respondents came to the court with unclean hands by suppressing the endorsement dated 12-03-2009 delivering the suit properties to the petitioner. It is also contended that the appellate court having found that handwriting of the endorsements dated 12-03-2009 regarding receipts of Rs.3 lakhs and delivery of possession of the suit properties to the petitioner appear to be similar, went wrong in holding that there is no material to hold that delivery of possession to the petitioner. It is contended that though the amendment to Section 53 A of the Transfer of Property Act in the year 2001 required for the purpose of invoking the doctrine of part performance that the agreement for sale must be registered, that provision cannot be apply in a case where subsequent to W.P(C).NO. 27614 OF 2010 3 an agreement for sale, the purchaser was put in possession of the property. It is also contended by learned Senior Advocate that respondents are trying to withdraw the amount in deposit to which they have no entitlement in law or on facts. So far as the claim of possession is concerned, it is seen from paragraph 7 of Ext.P2, judgment of learned Addl. District Judge that though learned Addl. District judge opined that handwriting of endorsements on 12-03.2009 regarding receipt of Rs.3,00,000/- and (alleged) delivery of possession of possession of the suit properties “ are similar in nature”, learned District Judge was of the view that apart from the (disputed) endorsement regarding handing over possession, there was absolutely nothing to hold that petitioner has taken delivery of possession of properties and he was cultivating the land in term of the said endorsement. It is not disputed that apart from the (disputed) endorsement relied on by petitioner, no other document was produced by petitioner to show possession of the suit properties with him from 12-03- 2009 as against respondents who are the admitted owners of the disputed properties. Learned Additional District Judge has only expressed an opinion as to the similarity of the disputed handwriting. That alone, according to the learned Additional District Judge was not sufficient to hold in favour of possession claimed by petitioner as against the admitted owners of the properties. That is a finding of fact entered by the learned Additional District Judge. While confirming the order of learned Munsiff. I W.P(C).NO. 27614 OF 2010 4 do not find reason to interfere with the finding of learned Addl. District Judge in exercise of the supervisory jurisdiction under Article 227 of the Constitution. But I make it clear that issue regarding possession claimed by petitioner shall be decided by the trial court untrammeled by any finding or observation contained in the impugned order/judgment or observations contained in this judgment. I make it clear that it will also be open to the petitioner to raise his plea of the part performance under Section 53 A of the Transfer of Property Act if it arises from his pleadings. So far as the apprehension of petitioner that the amount in deposit may be withdrawn by the respondents pending suit is concerned, it is open to the petitioner to raise appropriate objection to the application for cheque (if any) preferred by the respondents. It is open to the petitioner to contend that the amount shall not be disbursed to the respondents until disposal of the suit or that the amount be deposited in some Nationalised Bank so that it will earn interest during the pendency of the suit. If any such objection is raised, the court concerned shall consider the objection and pass appropriate orders as circumstances warranted. The writ petition is disposed of with the above directions. THOMAS P JOSEPH,JUDGE. W.P(C).NO. 27614 OF 2010 5 pm