IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 SA.NO. 586 OF 1996() ------------------------------ AS.45/1992 OF SUB COURT, KASARAGOD OS.174/1990 OF ADDL.MUNSIFF, KASARAGOD .................... APPELLANT(S) - APPELLANT - DEFENDANT: -------------------------------------------------------- B.K. ABDULLA, S/O. KADVEL BEARY, RESIDING AT BAGUDELU, KUDALMERKALA VILLAGE AND POST KASARGOD TALUK AND DISTRICT. BY ADV. SRI.P.K.MOHAMMED RESPONDENT(S) - RESPONDENT - PLAINTIFF: ------------------------------------------------------------- ABDUL SAMAD, S/O.UPPAKUNHI, RESIDING AT BAGUDELU, KUDALMERKALA VILLAGE AND POST, KASARGOD TALUK AND DISTRICT. ADV. SRI.ASOK M.CHERIAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 1 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. No.586 of 1996 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 11th day of March, 2009 J U D G M E N T ---------------------- The substantial questions of law raised for a decision are: “(i) Whether the suit agreement dated 21.4.1986 survive the period of limitation? (ii) Whether the suit filed on 5.4.1990 basing on Exhibit A1 Agreement is barred by limitation? (iii) Under the facts and circumstances of the case whether the lower courts were justified in placing reliance on Exhibits A4 to A7, which conclusively proves the appellant's ownership of the building situated in the property? (iv) In the absence of any material evidence from the side of the respondent, whether the courts below were justified in denying reliefs under Sec.18 of the Specific Relief Act to the appellant?” 2. These questions arise in the second appeal against the judgment and decree of the first appellate court confirming the decree S.A. No.586 of 1996 -: 2 :- for specific performance of Ext.A1, agreement dated 21.4.1986. Learned counsel for the appellant contends that the suit is barred by limitation in that Ext.A1 agreement is dated 21.4.1986 but, the suit is filed only on 5.4.1990. It is also contended that the sale consideration agreed between the parties is not as stated in Ext.A1 which the court below failed to take note of. The further contention is that at any rate, court below ought to have found that the respondent-plaintiff was not willing to perform his part of the agreement. Learned counsel for the respondent supported the concurrent finding entered by the courts below. 3. Exhibit A1, agreement dated 21.4.1986 states that the appellant agreed with the respondent for the sale of plaint A schedule property for Rs.8,000/-, received the said amount at the time of agreement itself and put the respondent in possession of the property. Appellant agreed to get the assignment of Patta in respect of the property from the Land Tribunal and execute the sale deed. According to the respondent, appellant did not inform him about his obtaining Patta and he learnt about that only on 14.3.1990. Following that, respondent issued Ext.A2, notice dated 20.3.1990 requiring the appellant to execute the sale deed and be present for that purpose at S.A. No.586 of 1996 -: 3 :- the office of the Sub Registrar with the Patta on 31.3.1990. Appellant, repudiating the claim sent Ext.A3, reply dated 30.3.1990. Respondent claimed that having been put in possession of the suit property, he constructed a building thereon and has always been ready and willing to perform his part of the contract. Appellant while admitting the agreement claimed that the consideration for sale was not Rs.8,000/- but, Rs.18,000/-. He was given only Rs.8,000/- as part of the sale consideration and the balance sum of Rs.10,000/- was due which the respondent did not pay. He had informed the respondent about the receipt of Patta on 1.6.1989 itself but respondent was not ready and willing to perform his part of the contract. He claimed that he constructed the shop building in the property. Suit is barred by limitation. Trial court found against those contentions and granted a decree. Appellate court concurred. Hence this second appeal. 4. So far as the question of limitation raised by the appellant is concerned, going by Ext.A1, the execution of which is admitted by the appellant, no time is provided for execution of the sale deed. Instead, what is stated in Ext.A1 is that appellant shall execute the sale deed immediately on receiving the Patta for which appellant shall take immediate arrangement. Though appellant contended that he S.A. No.586 of 1996 -: 4 :- informed the respondent about his obtaining Patta on 1.6.1989 itself, there is no reliable evidence for that except the interested version of the appellant as D.W.1 which the courts below were not inclined to accept. On the other hand, evidence of the respondent as P.W.1 and Ext.A2, notice would show that respondent learnt about the appellant getting Patta only on 14.3.1990. The period of limitation will run, under Article 54 of the Limitation Act from the day on which the plaintiff was noticed that performance is refused. In this case according to the respondent it was only on 14.3.1990 that he learnt about the appellant getting the Patta in his name. Respondent issued notice to the appellant on 20.3.1990 demanding specific performance of Ext.A1 and that was refused only by Ext.A3, dated 30.3.1990. Hence, in so far as no date is fixed as per Ext.A1 for performance of the contract, period of limitation will run only from 30.3.1990. The contention that the suit is time barred therefore, cannot stand. 5. So far as the contention regarding the sale consideration and refusal of the respondent to perform his part of the contract are concerned, Ext.A1 which is admitted by the appellant also stipulates the sale consideration as Rs.8,000/- which amount the appellant concededly received at the time of the agreement itself. When S.A. No.586 of 1996 -: 5 :- examined as D.W.1 appellant admitted the terms of the agreement (Ext.A1). Appellant cannot also lead evidence that the sale consideration fixed is not Rs.8,000/- as stated in Ext.A1 but, a higher sum. It has been so held in Ambikakumari v. Ramakrishnan (1991 (2) KLT 728). There is also no acceptable evidence to show that the sale consideration fixed was Rs.18,000/-. 6. Exhibit A1 shows that sale consideration was only Rs.8,000/- and that amount was paid to the appellant at the time of agreement itself. Respondent was put in possession of the property. Evidence of the respondent as P.W.1 that he constructed the shop building in the property gets corroboration from Exts.A4 to A7, as found by the courts below. What remained on the part of the respondent was only to get the sale deed executed at his expense. That he was ready to get the sale deed executed at his expense is evident from Ext.A2. As such the contention that the respondent was not ready and willing to perform his part of the contract cannot be sustained. Courts below have considered the evidence and found that the respondent is entitled to get Ext.A1 specifically enforced. Since that finding rests on a proper appreciation of the evidence, no interference is called for in this appeal. S.A. No.586 of 1996 -: 6 :- Second Appeal fails. It is dismissed. No costs. Civil Miscellaneous Petition Nos.1294 and 1782 of 1996 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== S.A. NO.586 OF 2001 =================== J U D G M E N T 11TH MARCH, 2009