IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 RSA.No. 545 of 2009() --------------------- AS.77/2004 of DISTRICT COURT, PALAKKAD OS.704/2000 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELLANT/PLAINTIFF -------------------------------------- K.V.KUNJALAN, S/O. UMMER, RESIDING AT KOLLENGODE VEEDU, KERALASSERY AMSOM, PALAKKAD TALUK. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENTS: RESPONDENTS/DEFENDANTS ----------------------------------------------------- 1. DEVAKI AMMA, W/O. C.K.MADHAVAN NAIR, RESIDING AT NEELANCHERI VEEDU, KERALASSERY, PALAKKAD. 2. RAMAKRISHNAN NAIR, S/O. KUNJU AMMA, RESIDING AT KIZHAKKUMPURAM AMSOM, NEELANCHERRY, NOW RESIDING AT KERALASSERY AMSOM, PALAKKAD TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------- R.S.A. No.545 of 2009 ----------------------------------- Dated this the 28th day of July, 2009 JUDGMENT The plaintiff in O.S.No.704/2000 on the file of the Additional Munsiff's Court, Palakkad is the appellant. The appeal is directed against the judgment and decree in A.S.No.77/2004 on the file of the District Court, Palakkad. The suit was filed for specific performance of a contract of sale. Admittedly the property belonged to the first defendant. It is alleged that the first defendant agreed to sell the plaint schedule property. The alleged agreement is an oral agreement dated 16/4/1992. The extent of property covered by the agreement is 3 acres and 32 cents. The consideration for the property was fixed as Rs.250/- per cent. The plaintiff has paid Rs.10,000/- as advance sale consideration and according to him he was put in possession of the property by the 1st defendant. The plaintiff also effected improvement in the property. On 1/7/1992 plaintiff again paid Rs.40,000/- to the 1st defendant towards balance sale consideration. It is alleged that the defendant is not amenable for executing the sale deed and therefore the suit was filed. 2. In the written statement, the first defendant denied R.S.A. No.545 of 2009 2 the oral contract to sell the property to the plaintiff and denied the receipt of advance sale consideration and all other details stated in the plaint. The trial court after appreciating the oral evidence tendered by both sides as PWs.1 to 3 and DW1, documentary evidence, Ext.A1 to A16, Ext.B1 to B7 held that the present suit filed on 17/10/2000 on the basis of an agreement of sale dated 16/4/1992 is cleared barred by law of limitation. The trial court also examined the other questions and held that protection under Sec.53 (A) of the Transfer of Property Act is available only to a person who is in possession of the property as per a written contract. So the plaintiff's claim based on 53(A) of the T.P. Act, was also repelled. The other contentions raised by the plaintiff were also examined in the light of the oral and documentary evidence. The trial court on evidence held that the plaintiff has failed to prove that there is an oral contract for specific performance between the plaintiff and the defendant. In such circumstances, the trial court held that the plaintiff is not entitled to get any relief and therefore the suit was dismissed. 3. In the appeal filed by the plaintiff the appellate court also examined the very same contentions in detail and agreed with the findings of the trial court in every respect and R.S.A. No.545 of 2009 3 dismissed the appeal and confirmed the judgment and decree passed by the trial court. 4. Heard the learned counsel for the appellant. The decision of the trial court which was confirmed in appeal that the suit is barred by limitation, that he is not entitled to the protection under Section 53(A) of the Transfer of Property Act, there is no proof in support of the case of plaintiff that there was an oral contract of sale are all findings based on facts. In second appeal this court cannot re appreciate the plaintiff's claim on the same set of facts and evidence. In my view, the appellants failed to urge sufficient grounds to invoke jurisdiction under section 100 C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. Hence, the appeal is dismissed in limine. HARUN-UL-RASHID, JUDGE Skj.