IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 RSA.No. 1410 of 2010() ---------------------- AS.108/2009 of DISTRICT COURT, KASARAGOD OS.159/2007 of SUB COURT, HOSDRUG .................... APPELLANT/ APPELLANT/ 1ST DEFENDANT ----------------------------- THEKKE VEETTIL VIJAYAN, S/O.JANAKI AMMA, RESIDING AT KOITHURUTHI, UDINOOR VILLAGE, HOSDURG TALUK, P.O.UDINOOR, KASARAGOD DISTRICT. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): RESPONDENTS/PLAINTIFF AND 2ND DEFENDANT ------------------------------------------------------ 1. THELAKKATTE MOIDU, S/O.IBRAHIM, RESIDING AT THAZHE CHERKALA, THALIPARAMBA AMSOM DESOM, THAZHE CHORKALA, THALIPARAMBA TALUK, P.O.KURUMATHUR, KANNUR DISTRICT, PIN-670 142. 2. MUTTATH NARAYANAN, S/O.KUMBA AMMA, RESIDING AT EDATTUMMAL, NORTH TRIKARIPUR VILLAGE, NORTH TRIKARIPUR P.O., HOSDURG TALUK, KASARAGOD DISTRICT, PIN-670 142. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.1410 OF 2010 --------------------------------------------- Dated 23rd May, 2011 JUDGMENT First defendant in O.S.159/2007 on the file of Sub Court, Hosdurg is the appellant. First respondent is the plaintiff and second respondent, the second defendant. First respondent instituted the suit for specific performance of Ext.A1 agreement dated 13/12/2006. Under Ext.A1 agreement, admittedly executed by the appellant and the first respondent, appellant had agreed to assign the properties shown therein in favour of the first respondent for a consideration, at the rate of Rs.975/- per cent providing that total consideration is to be fixed on measurement of the property. Rs.25,000/- RSA 1410/10 2 was paid as advance towards the sale consideration. Subsequently, first respondent admittedly paid Rs.20,000/- to the appellant. First respondent sent Ext.A3 notice demanding performance of Ext.A1 agreement contending that in spite of the request to get measurement of the property covered under Ext.A1, appellant failed to get it measured and as instructed and though first respondent got prepared Ext.A2 sale deed, and appellant did not execute the sale deed and therefore, he was called upon to execute a sale deed. Appellant sent Ext.A5 reply admitting execution of Ext.A1 agreement and was ready and willing to execute the sale deed and as instructed by the first respondent, Ext.A4 sale deed was executed on 26/6/2007 in favour of the second respondent and therefore, first respondent is not entitled to a decree RSA 1410/10 3 for specific performance of the agreement for sale. Appellant filed a written statement contending that though Ext.A1 agreement was executed and he received advance of Rs.25,000/- at the time of execution of sale deed and later Rs.20,000/-, being part of sale consideration as instructed by first respondent he executed Ext.A4 sale deed in favour of his nominee the second respondent and therefore, appellant is not entitled to decree for specific performance of the agreement. Second respondent filed a written statement contending that under Ext.A4 sale deed he purchased the property and that sale deed was executed in the presence of the first respondent. According to the second respondent he was in need of a property and through broker Khader, he approached the first respondent and Ext.A4 sale deed was excluded RSA 1410/10 4 and first respondent is therefore, not entitled to the decree. 2. Learned Sub Judge on the evidence of first respondent as PW1 and appellant as DW1 and Exts.A1 to A5, granted a decree directing the appellant to execute a sale deed in favour of the first respondent on his depositing the balance consideration of Rs.69,950/- and declared that original of Ext.A2 (evidently by mistake instead of Ext.A4) is only a sham document which was not acted upon. Second respondent, in fact, subsequent to the filing of the written statement remained absent and was set ex-parte. He did not challenge the decree. Appellant filed A.S.108/2009 before District Court, Kasaragod challenging the judgment. Learned District Judge on re- appreciation of the evidence confirmed the RSA 1410/10 5 findings of the learned Sub Judge and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. 4. Argument of the learned counsel is that irrespective of the defect in the pleading and the case set up by the appellant before the trial court, in the light of the admitted facts in the plaint, first respondent is not entitled to the decree for specific performance of Ext.A1 agreement. Learned counsel argued that paragraph 8 of the plaint itself establishes that first respondent prepared Ext.A2 sale deed, as provided under Ext.A1 agreement for sale and the total consideration shown is Rs.71,000/-, though property agreed to be sold under Ext.A1 is 1 RSA 1410/10 6 acre 18 cents and the agreed consideration was Rs.975/- per cent. It was argued that if a sale deed is to be executed pursuant to Ext.A1, consideration can never be Rs.71,000/- and therefore, contentions in paragraph 8 of the plaint establish that first respondent was not ready and willing to get a sale deed for the consideration shown in Ext.A1 and only for Rs.71,000/- and hence he is not entitled to a decree for specific performance and courts below should have found that first respondent is not entitled to the equitable relief of specific performance of the agreement for sale. Learned counsel argued that though it is alleged in the plaint that consideration of Rs.71,000/- was shown in Ext.A2 as instructed by the appellant, there is no evidence to support the said contention and therefore, it RSA 1410/10 7 should have been found that first respondent was prepared to get a sale deed only for a consideration of Rs.71,000/- and hence he is not entitled to decree for specific performance of Ext.A1 agreement. 5. Ext.A3 is the registered notice sent by the first respondent to the appellant before institution of the suit directing the appellant to execute the sale deed as provided under Ext.A1. Readiness and willingness expressed in Ext.A3 is as provided under Ext.A1 agreement and not for any lesser consideration. The written statement filed by the appellant makes it absolutely clear that appellant has no case that first respondent was not ready and willing to perform his part of the agreement or was not prepared to get a sale deed for the consideration shown in Ext.A1. RSA 1410/10 8 There is also no case that appellant did not execute the sale deed, as first respondent was prepared to get a sale deed only for the consideration of Rs.71,000/- and not for the consideration agreed under Ext.A1. Added to this, specific case of the appellant is that pursuant to the directions of the first respondent, Ext.A4 sale deed was executed in favour of the second respondent as provided under Ext.A1, as Ext.A1 provides that a sale deed is to be executed either in favour of first respondent or to his nominee. If that be the case, consideration shown in Ext.A4 should be the consideration fixed under Ext.A1. But consideration shown in Ext.A4 is only Rs.40,000/-. It is therefore, absolutely clear that the reason for non execution of a sale deed in favour of the first respondent is not RSA 1410/10 9 the failure of the first respondent or the absence of his readiness or willingness to get the sale deed executed as provided in Ext.A1. 6. Therefore, the only question is whether Ext.A4 sale deed was executed in favour of the second respondent as directed by the first respondent. There is absolutely no acceptable evidence to prove that Ext.A4 was executed as instructed by the first respondent. On going through the judgments of the courts below, I find that on the facts and evidence no substantial question of law is involved. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.