IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 SA.No. 241 of 1996() -------------------- {A.S.NO.137/1995 OF THE DISTRICT COURT, KASARAGOD IN O.S.NO.99/1994 OF THE PRL.MUNSIFF, KASARAGOD} .................... APPELLANT(S)/DEFENDANTS 1 & 2: ---------------------------------------------------------- 1. C.CHARADAN NAIR, S/O.KANNAN NAIR, RESIDING AT EDAPPANI, P.O.KUNDAMKUZHI, BEDADKA VILLAGE, KASARGOD TALUK. 2. T.BALAKRISHNAN NAIR, S/O.CHARADAN NAIR, RESIDING AT DO. DO. BY ADV. SRI.A.P.CHANDRASEKHARAN (SR.) SRI.KODOTH PUSHPARAJAN SRI.M.KRISHNAKUMAR (MOHANKUMAR ASSOCIATES SRI.JAYESH MOHANKUMAR RESPONDENT(S)/PLAINTIFF: ----------------------------------------------- M.CHANDUKUTTY, S/O.MUTHU NAIR, RESIDING AT KAMALON VALAPPU, BEDADKA VILLAGE, P.O.KUNDAMKUZHI, KASARAGOD TALUK. ADV. SRI.K.G.GOURI SANKAR RAI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- S.A..No.241 of 1996 ------------------------- Dated this the 5th day of January, 2009. JUDGMENT The defendants, in O.S.No.99/94 on the files of the Munsiff's Court, Kasargod, are the appellants herein. 2. The suit was for injunction restraining the defendants from interfering with the plaintiff's possession and enjoyment of the plaint schedule property. 3. An extent of 8.04 acres of land in R.S.No.385/1 of Bedadka Village in Kasargod Taluk, is the plaint schedule property. Admittedly, the property originally belonged to the 2nd defendant and again admittedly, the same was conveyed to the plaintiff by the 2nd defendant by Ext.A1 deed in the year 1980. The properties on the northern and western side of the plaint schedule property are in the possession of the defendants. The plaintiff contended that there is an attempt on the part of the defendants to trespass into the plaint schedule property and hence the suit for permanent prohibitory injunction. S.A..No.241 of 1996 :: 2 :: 4. The defendants took up the contention that though the property was originally conveyed by the 2nd defendant in favour of the plaintiff as per Ext.A1, the plaintiff had, as per Ext.B1 agreement for sale, agreed to convey the property to the 2nd defendant, his brothers and sisters, for a total amount of Rs.2,01,000/-. It was contended that an amount of Rs.2 lakhs have already been paid towards the consideration on the date of the agreement itself. But notwithstanding the same, a period of 3 years was mentioned for completing the conveyance for a balance consideration of Rs.1000/-. It was contended that the defendants were put in possession of the agreement schedule property on the date of the agreement. 5. The plaintiff filed a replication denying the genuineness of Ext.B1. The plaintiff examined himself and marked Exts.A1 to A6. It is under Ext.A1 that he derived possession. 6. As stated above, Ext.B1 agreement was marked on the side of the defendants. The 2nd defendant examined himself and another person as Dws.1 and 2. S.A..No.241 of 1996 :: 3 :: 7. I heard Mr.Jayesh, learned counsel for the appellants and Mr.Gowri Shankar Rai for the respondent. 8. That the plaintiff came into possession as per Ext.A1 was not denied by the defendants. The question is whether the defendants later came into possession of the property and if so, the circumstances under which they came into possession. Ext.B1 alone was put forward by the defendants. The court below considered the genuineness of the same. The court below found and noted that there is an inherent improbability in the version put forward by the defendants. Firstly, out of the total consideration of Rs.2,01,000/-, according to the defendants, an amount of Rs.2 lakhs had been paid on the date of the agreement, which,a s the courts below found, is an unregistered document. Secondly, and more importantly, neither the scribe nor the attestors of Ext.B1 was sought to be examined by the defendants, in spite of the plaintiff taking up a contention against the genuineness of Ext.B1 agreement. Thirdly, the courts below noted that the alleged signature of S.A..No.241 of 1996 :: 4 :: the plaintiff does not tally with the admitted signatures of the plaintiff in certain documents placed before the court below. The trial court came to the specific conclusion that Ext.B1 is a fabricated one. 9. The lower appellate court concurred with the findings entered into by the trial court. The lower appellate court also took note of the fact that no attempt whatsoever was made to prove Ext.B1 agreement, which according to the defendants, was executed as early as on 1.10.1993. This, the lower appellate court rightly noted was a tell-tale circumstance as regards the genuineness of Ext.B1. 10. I have gone through the records of the case and perused the judgments as well. I take note of the fact that there is a concurrent findings by the courts below that Ext.B1 agreement was not genuine. There is a possibility of it being a fabricated one. I also take note of certain circumstances, which inherently improbabilises the legitimate existence of Ext.B1. The total extent of property was 8.04 acres and according to the defendants an amount S.A..No.241 of 1996 :: 5 :: of Rs.2 lakhs was paid out of Rs.2,01,000/- on the date of the agreement itself. If so, why should there be an agreement for a 3 years period for execution of the sale deed. Secondly, having paid the lions share of the total consideration, it stands to reason that no person will normally defer the execution of the sale deed, that too for a period of three years. More importantly, I also take note of the fact that in spite of having paid an overwhelmingly large portion of the sale consideration and in spite of allegedly having beenput in possession of the property, the defendants did not seek a specific performance of Ext.B1 agreement for sale, either by filing a suit or by setting up a counter claim in the present suit. 11. For all these reasons, I am inclined to concur with the findings of the courts below that the plaintiff proved his possession over the property and the defendants have not been able to prove the genuineness of Ext.B1. De hors Ext.B1, the defendants did not set up any case of having come into possession of the property independently. S.A..No.241 of 1996 :: 6 :: 12. The courts below were right in their conclusions and in dismissing the suit. I do not find any substantial question of law arising for consideration in this appeal. I also concur with the findings and conclusions arrived at by the courts below. For all these reasons, the Second Appeal is dismissed. In the facts and circumstances of the case, there will be no order as to costs. Sd/- (V.GIRI) JUDGE sk/ //true copy//