IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 RSA.No. 994 of 2011() --------------------- AS.104/2009 of ADDL. DISTRICT COURT, VADAKARA OS.22/2006 of SUB COURT, VADAKARA .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------------- KODIYATH KUNHAMMAD HAJI, S/O.ABDULLA, VILLIAPPALLY, MAYYANNOOR, VATAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SRI.GEORGE JOSEPH PULIMOOTTIL SRI.N.N.ARUN BECHU SRI.K.DILIP SRI.ROVIN RODRIGUES RESPONDENTS/RESPONDENTS/ DEFENDANTS ------------------------- 1. PANAYULLATHIL AAYISA @ KUNHAYISA, D/O.AVULLA, AMBALAPARAMBATH HOUSE, VILLIAPPALLI, MAYYANNUR, VATAKARA, KOZHIKODE DISTRICT, PIN-673 542. 2. AMBALAPARAMBATH ASITHA, D/O.MUHAMMAD, AMBALAPARAMBATH HOUSE, VILLIAPPALLI, MAYYANNUR, VATAKARA, KOZHIKODE DISTRICT, PIN-673 542. 3. AMBALAPARAMBATH RUMISATH, D/O.MUHAMMAD, DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ab M.SASIDHARAN NAMBIAR, J ........................................... RSA No.994 of 2011 ............................................ DATED THIS THE 19th DAY OF SEPTEMBER, 2011 JUDGMENT Plaintiff in O.S.22 of 2006 on the file of Sub Court, Vadakara is the appellant. Defendants therein are the respondents. First respondent is the daughter of the uncle of the appellant. The suit was filed for specific performance of Ext.A6 agreement for sale dated 30.12.2000. According to the appellant, first respondent agreed to sell the plaint schedule property, belonging to her, for a total consideration of Rs.1,75,000/- and on receipt of Rs.1,50,000/-, handed over the title deeds and put the appellant in possession of the property and executed Ext.A6 agreement agreeing to execute the sale deed on receipt of the balance consideration of Rs.25,000/- within a period of three years. Though appellant was ready and willing to perform his part of the agreement, first respondent did not execute the sale deed. In spite of Ext.A10 lawyer notice, demanding execution of the sale deed, first respondent refused it and sent Ext.A11 reply denying the agreement. Appellant sought RSA 994/2011 2 a decree for specific performance of the agreement for sale. 2. First respondent resisted the suit denying execution of Ext.A6 agreement or an agreement to sell the plaint schedule property to the appellant for a consideration of Rs.1,75,000/- or receipt of advance of Rs.1,50,000/- as contended by the appellant. It was contended that appellant is a relative of the first respondent and is a broker. First respondent entrusted him the task of sale of her property and for that purpose she entrusted the title deeds and other documents relating to the property. When the appellant failed to find a purchaser, first respondent demanded back the documents but he did not return the same. Meanwhile first respondent sold the property to her grand children, respondents 2 and 3. Appellant is not entitled to the decree for specific performance of the agreement for sale. Respondents 2 and 3 filed written statement adopting the contentions raised by the first respondent. 3. In view of the contentions raised by first respondent that she did not execute Ext.A6 agreement for sale, at the instance of the appellant, Ext.A6 was sent to Forensic Science Laboratory for RSA 994/2011 3 comparing the alleged signature of the first respondent seen in Ext.A6 with the admitted signatures. The Director of Forensic Science Laboratory, Thiruvananthapuram on examination of the disputed signature in Ext.A6 furnished Ext.C1 report before the trial court. 4. Learned Sub Judge, on the evidence of Pws 1 to 3, DW1, Exts.A1 to A12 and B1 to B7 dismissed the suit holding that appellant did not establish the alleged agreement for sale. Appellant challenged the decree and judgment before Additional District Court, Vadakara in A.S.104 of 2009. Learned Additional District Judge on re-appreciation of the evidence, confirmed the findings of the learned Sub Judge and dismissed the appeal. It is challenged in the second appeal. 5. Learned counsel appearing for the appellant was heard. The argument of the learned counsel is that courts below did not consider the evidence in the proper perspective and ignored the material findings of the expert seen in Ext.C1 report. Learned counsel would argue that though Ext.C1 report does not conclusively show that the signature seen in Ext.A6 is that of the RSA 994/2011 4 first respondent, in all probabilities it establishes that it is the signature of the first respondent. Learned counsel also argued that when the basic title deeds of the property and other connected documents are produced by the appellant and the explanation offered by the first respondent is not satisfactory and possession of the plaint schedule property is with the appellant, courts below should have found that as stated in Ext.A6, the title deeds and the other documents were handed over to the appellant and he was put in possession of the plaint schedule property pursuant to the agreement for sale and therefore a decree for specific performance of the agreement for sale should have been granted. Learned counsel would also argue that the reasoning of the courts below that as a period of three years is fixed for execution of the sale deed and appellant did not take steps to get the sale deed executed even after the expiry of more than one and a half years, after the expiry of the period fixed in the agreement for sale is not correct, in view of the close relationship of the parties. When the evidence of first respondent as DW1 establishes that she was in need of Rs.1,50,000/- in the RSA 994/2011 5 year 2000, and the property has been in the possession of the appellant from 2000 onwards as admitted, findings of the courts below is not in accordance with the evidence and therefore a decree for specific performance of the agreement for sale should have been granted. 6. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Even though first respondent is the daughter of the uncle of the appellant, Ext.A6 agreement for sale even according to the appellant was executed agreeing to assign the plaint schedule property in favour of the appellant, for a total consideration of Rs.1,75,000/-. As seen from Ext.A1, Rs.1,50,000/- was paid on the date of the agreement for sale. The evidence of the appellant as PW1 is that five or six days earlier to the date of execution of Ext.A1, first respondent approached him at his house and agreed to sell the property and Ext.A6 agreement was prepared and brought before him. He further deposed that though there was no agreement to provide a period of three years for execution of the sale deed, as they are close relatives, he did not raise any objection when the RSA 994/2011 6 agreement prepared and brought by the first respondent provide a period of three years. As rightly found by the courts below if there was an agreement for sale of the plaint schedule property for a total consideration of Rs.1,75,000/- and appellant, who has to pay the consideration, was having sufficient money, there was no necessity for executing an agreement for sale. Instead a sale deed itself could have been executed. Appellant has no case that there was any impediment for getting the sale deed executed immediately, instead of an agreement for sale. It is his definite case that he was having the balance consideration to be paid to the first respondent, on the date of execution of Ext.A6. The only explanation offered by the appellant is that first respondent stated that her son is abroad and he has to return. Even if that case is correct, I find no reason to fix a period of three years as there is no case that the son cannot or will not come within a period of three years from the date of execution of Ext.A6. Added to this, as rightly found by the courts below, even after the expiry of three years from the date of execution of Ext.A1, appellant did not take any steps to get the sale deed executed. Even according RSA 994/2011 7 to the appellant, it is for him to prepare the sale deed and get the sale deed executed by the first respondent. He has no case that he had prepared the sale deed before or immediately on the expiry of the period provided under Ext.A6 and first respondent did not execute the sale deed. The first demand for execution of the sale deed is under Ext.A10 notice viz, on 23.6.2005, one and a half years after the expiry of the three year period provided under Ext.A1. Based on these facts, courts below found that there could not have been an agreement for sale as alleged by the appellant. I find the reasoning adopted by the courts below is correct. 7. Courts below appreciated the evidence of Pws 1 to 3 and found that execution of Ext.A6 agreement was not proved. Though the learned counsel argued that Ext.C1 report probabilise the identity of the signature of the first respondent in Ext.A6, going through the copy of Ext.C1 made available by the learned counsel, I cannot agree with the submission. The finding of the expert is that no definite conclusion could be given with regard to the identity of the signature seen in Ext.A1. In the light of the RSA 994/2011 8 unsatisfactory evidence, based on the probability of identity of signature, as canvassed by the learned counsel, it cannot be found that first respondent had agreed to sell the plaint schedule property or received Rs.1,57,800/- as advance or executed Ext.A6. In such circumstances, I find no substantial question of law involved in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk