IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 RSA.No. 829 of 2008() --------------------- AS.64/2005 of PRINCIPAL SUB COURT,PARAVUR OS.328/1999 of MUNSIFF COURT, PARAVUR .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- SHAMSUDHIN, S/O.KUNJAN MARAKKAR, AGED 60 YEARS, VADAKKEKARA VILLAGE, PARAVUR TALUK. BY ADV. SRI.M.K.ABOOBACKER RESPONDENTS/ RESPONDENTS/DEFENDANTS ------------------------------------- 1. AMMINI, W/O.VARKEY, AGED 85, MAZHUVANCHERRY,PATTANAM KARA, VADAKKEKARA VILLAGE, PARAVUR TALUK. 2. BABY GEORGE, S/O.VARKEY AGED 61 YEARS, MAZHUVANCHERRY, PATTANAM KARA,VADAKKEKARA VILLAGE, PARAVUR TALUK. 3. BABU GEORGE, S/O.VARKEY AGED 57, MAZHUVANCHERRY, PATTANAM KARA, VADAKKEKARA VILLAGE PARAVUR TALUK. 4. DAVIS GEORGE, S/O.VARKEY AGED 55, MAZHUVANCHERRY, PATTANAM KARA, VADAKKEKARA VILLAGE PARAVUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.829 of 2008F --------------------------------------- Dated this 08th day of March, 2010 JUDGMENT On the strength of an alleged oral agreement on 10-08-1993 for sale of the suit property to the appellant, he sued respondents in the year 1999 for specific performance of that oral agreement. According to the appellant, consideration fixed for the sale was Rs.2500/- of which Rs.1000/- was taken at the time of advance and time for performance was fixed as one year. While so, respondent No.2 filed a complaint against the appellant to the local police which according to the appellant contained false allegations and with intend to avoid performance of the agreement for sale. Thus relationship between the parties strained and while so, respondent No.1 on 30-12-1996 suggested that the agreement could be enforced and received the balance consideration of Rs.1500/-. According to the appellant he was given possession of the suit property that day. Since the respondent again refused to honour their commitment appellant filed the suit seeking specific performance. Respondent denied that there was any such agreement or, handing over possession of the property to the appellant. On 07-01-1990 appellant encroached into their property and constructed a wall regarding which respondents preferred a complaint. Police registered a case against the appellant. It is incorrect to say that respondent No.1 received respondent.1500/- from R.S.A.No.829 of 2008 2 the appellant on 30-12-1996 and put the appellant in possession of the property. It is also contended that respondents have filed O.S.No.77 of 1998 against the appellant for injunction and other reliefs. The further contention is that at any rate performance of the agreement become barred by limitation. Trial court found against the alleged oral agreement and non suited the appellant. That was confirmed by the first appellate court. Hence the second appeal urging by way of substantial questions of law whether finding of the courts below are legal and sustainable and whether courts below went wrong in not accepting Ext.A5. It is contended by learned counsel for appellant that finding of the courts below are not correct. 2. So far as alleged oral agreement is concerned, appellant gave evidence as PW1 and examined his neighbour as PW2. Contra evidence is given by DW1, respondent No.2. It has come in evidence that even before the date of alleged oral agreement parties were not in good terms. There had been a complaint against the appellant for alleged trespass into the suit property. That was followed by respondents preferring protest complaint against the appellant is seen from Exts.B3 and B3(a). It is at a time when the parties were not in good terms the alleged oral agreement is said to have been entered into. Ext.A5 is the copy of the report of Taluk Sabha pressed into service by the appellant to prove the alleged oral agreement for sale but, respondents are not bound by it since they are not signatories in R.S.A.No.829 of 2008 3 that agreement. Courts below found against the plea of oral agreement for sale. That is a finding entered on the evidence or lack of it and involved no substantial question of law. Courts below also found that at any rate the prayer for specific performance is barred by limitation since even according to the appellant alleged oral agreement was on 10-08-1993 fixing one year's time for its performance and the suit is filed in the year 1999. Though appellant claimed, in order to keep the oral agreement alive that on 30-12-1996 respondent No.1 received Rs.1500/- and put the appellant in possession of the suit property, courts below found that the said version of appellant is not proved and the evidence is contradictory. Finding regarding bar of limitation is entered in the above circumstances and involved no substantial question of law. 3. Learned counsel submits that possession of the property with the appellant has been found in the suit instituted by the respondents but, that is different from enforcing the alleged oral agreement for sale. On going through the judgment under challenge and hearing learned counsel I do not find any substantial questions of law involved in the second appeal requiring decision. Resultantly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/