IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA TUESDAY, THE 18TH DAY OF OCTOBER 2011/26TH ASWINA 1933 SA.No. 427 of 2001 ( A) ---------------------- AS.97/1997 of IIND ADDITIONAL SUB COURT, KOZHIKODE OS.469/1993 of PRINCIPAL MUNSIFF COURT, KOZHIKODE-II .................... APPELLANT(S): ----------------- 1. K. AMINA, W/O KANNAMTHODI ABDU, RESIDING AT KOORIYODU MALAVARAM, KOMPARA, THIRUVAMPADI AMSOM, KOODARANJI DESOM, KOZHIKODE TALUK. 2. KANNANTHODI ABDU, S/O MAMMED, RESIDING AT KOORIYODU MALAVARAM, KOMPARA, THIRUVAMPADI AMSOM, KOODARANJI DESOM, KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): ----------------------- KUNHIMOHAMMED, S/O PAZHAKJKALAKATH KUNHALIKUTTY HAJI, RESIDING AT KOORIYODU MALAVARAM, KOMPARA, THIRUVAMPADI AMSOM, KOODARANJI DESOM, KOZHIKODE TALUK. ADV. SRI.K.M.SATHYANATHA MENON THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-10-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ----------------------------------- S.A.No.427 OF 2001 ----------------------------------- Dated 18th October, 2011 J U D G M E N T Respondents herein filed a suit before the Munsiff Court against appellant for specific performance of an agreement for sale (Ext.A4) in respect of plaint C schedule property. The said suit was decreed and it was confirmed in an appeal by the Sub Court. Hence this Second Appeal. 2. As per averments in the plaint, plaint A schedule property belongs to the plaintiff and there was a way having 2 ft. wide lying south to north which leads to this property. Plaintiff- respondent wanted to widen the way and an agreement was executed by defendants-appellants as Ext.A4 dated 19.9.1991 agreeing to sell plaint C schedule property to plaintiff for consideration of Rs.8,500/-. Plaintiff paid Rs.7,000/- to the appellants and agreed to pay balance Rs.1,500, at the time of their obtaining registration from the owner of B schedule property. Defendants gave lame excuses and did not execute the sale deed. Hence a lawyer notice was issued as Ext.A5 dated SA.427/01 2 24.7.1993. Plaintiff was willing to perform his part of contract but defendants failed to perform his part of contract. Hence suit for specific performance of Ext.A4. 3. Defendants-appellants filed written statement and contended that Ext.A4 agreement was not executed by them. There was no payment of any amount pursuant to Ext. A4 though request was made to give a way having 6 feet width for constructing a road to A schedule property. The appellants refused to do so. Hence, on 15.7.1993 respondent and his son trespassed into plaint B schedule property and cut and removed two coconut trees, for forming the road. A case was registered at the police station and charge sheet was also laid against respondent before the Magistrate Court. Suit is filed for fabricating false evidence to escape from the criminal liability. Appellants are not liable to execute any sale deed and suit is liable to be dismissed. 4. Munsiff court framed as many as six issues. PW1 to PW4 were examined on the side of plaintiff and Ext.A1 to Ext.A6 were marked. DW1 and DW2 were examined on the side of defendants. Ext.C1 and Ext.C2 were also marked. Trial court analysed the evidence adduced on both sides and came to a SA.427/01 3 conclusion that Ext.A4 was executed by defendants. In spite of Ext.A5 notice, defendants did not execute sale deed and hence plaintiff was entitled to specific performance of Ext.A4 agreement, it is further held. 5. The contention taken up by defendants that suit was filed to escape from the criminal case was not accepted by trial court. In the appeal filed by appellants before the Sub Court, lower appellate court found that trial court appreciated the evidence of PW1 to PW4 correctly and there was no reason to reject the evidence adduced on behalf of plaintiff. 6. It was also held that there was no denial of the signature of defendants in Ext.A4 and hence it was treated as admission of signature. Appellate court proceeded as though there is admission of signature because of the non denial. Taking all these facts into consideration, it was held that suit was rightly decreed. 7. Heard both sides. Perused the records. The following questions of law are stated in the appeal memorandum and both sides were heard on such questions. “i) Whether a party can handover possession of a property over which he has no transferable interest and isn't the alleged transfer of C SA.427/01 4 schedule herein ipso facto void ? ii) Can, any one in possession of certain property by virtue of an agreement for sale, transfer possession of the same to another, by another agreement for sale, without junction of the owner of the property ? iii) Is an agreement valid without the signature of both parties, should not both parties sign the document ? iv) What is the nature of denial contemplated in Order VIII Rule 5 of the Code of Civil Procedure in order to constitute specific denial or treating a fact as not admitted, is the agreement in this case in dispute?” 8. Learned counsel for appellant argued that there is no averment in the plaint that appellants signed Ext.A4 and therefore the absence of denial of the said fact cannot lead to any conclusion that there is admission of signature in Ext.A4. Order VIII Rule 5 lays down that every allegation of fact in the complaint, if not challenged specifically or by necessary implication or stated to be not admitted in the pleading of the defendants shall be taken to be admitted. 9. It is clear from a reading of Order VIII Rule 5 CPC that non-denial of a fact will constitute admission of such fact. But, only if there is an allegation of a particular fact in the plaint. In this case, There is no specific averment in the plaint that Ext.A4 SA.427/01 5 contains the signature of appellants. It is not stated in the plaint that Ext.A4 was signed by defendants and hence the omission on the part of defendants-appellants to deny that Ext.A4 contains their signature is of no consequence for the purpose of Order VIII Rule 5 of CPC. Since there is no specific allegation regarding affixing of signature by defendants in Ext.A4, the so-called specific denial does not arise at all and therefore, the court cannot proceed on the assumption that there is admission of signature. 10. In fact, what is stated in the plaint is that defendants executed the agreement which is marked as Ext.A4. Defendants denied the execution of Ext.A4 and even stated that it is fabricated. According to defendants, no agreement for sale was executed by defendants at any point of time and the document was falsely created for the purpose of avoiding criminal liability in the case registered against plaintiff. Therefore, this is a case where there is allegation on execution of Ext.A4 and such fact was not only denied but a plea is taken up that said document was falsely fabricated. In the said circumstances, the court below went wrong in assuming that there is an admission of signature, by virtue of Order VIII Rule 5 CPC. SA.427/01 6 11. Learned counsel for respondent argued that both the courts below considered the evidence on both sides in detail and came to a conclusion that Ext.A4 was executed by defendants- appellants. He has drawn my attention to the finding entered into by trial court on the evidence of PW1 to PW4 as well as DW1 and DW2. Trial court has considered at length the reliability of evidence of PW1 to PW4. Appellate court has also concurred with the findings of trial court on appreciation of evidence of PW1 to PW4 and DW1 and DW2. Therefore, it is argued that in the absence of any strong reason, a concurrent finding of facts cannot be interfered with. 12. Learned counsel for appellant referred to certain portions in the evidence given by witness and argued that a different conclusion can be arrived at, based on such evidence. On hearing both sides I find that both the courts below concurred on the finding of fact on appreciation of evidence adduced on both sides. Unless this court can enter a finding that said conclusions are perverse, such findings cannot be interfered with in this second appeal. The mere fact that different conclusion can be arrived at is not a reason to interfere with the findings. It is true that learned counsel for appellants argued that appellate SA.427/01 7 court has committed a serious illegality in proceeding on the basis of non-denial of signature in the written statement amounts to admission of signature. 13. It appears that the said so-called admission had weighed the mind of trial court in making a conclusion against appellants. Lower appellate court also committed same in holding that in the absence of specific denial signature in Ext.A4 can be taken as admitted. But both the courts below considered and appreciated the evidence adduced in this case independently, to render a finding on execution of Ext.A4 and both the courts concurred in their finding which do not suffer from any perversity. Therefore, it cannot be said that concurrent findings of fact on execution of Ext.A4 is invalid on admission of Ext.A4. The illegality pointed out by learned counsel for appellant about deemed admission of signature is insufficient to interfere with the concurrent findings of facts regarding execution of Ext.A4. 14. Appellant raised a question of law whether a party can handover the possession of property over which he has no transferable interest and whether alleged transfer of C schedule property as per Ext.A4 is void. Another question of law was also SA.427/01 8 raised whether a person can execute a document by transferring possession of property to another without junction of the owner of the property when there is only an agreement for sale by the owner. He has also taken up a contention that agreement would be invalid without signature of both parties. 15. Learned counsel for respondent pointed out that none of those contentions are raised by appellants at the trial stage or even at the appellate stage. On hearing both sides, I am satisfied that those questions are raised by appellant for the first time in second appeal and hence those questions cannot be looked into at this stage in second appeal. In the result, I find that decree can only be sustained and this appeal is to be dismissed. This appeal is dismissed. Sd/- K. HEMA, JUDGE. Sou. // True copy // SA.427/01 9 K. HEMA, J ---------------------- S.A.No.427 OF 2001 ----------------------------------- Dated 2nd September, 2011 J U D G M E N T No representation for appellant. Respondent represented. This appeal is dismissed. Sd/- K. HEMA, JUDGE. Sou. // True copy //