IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 AS.No. 184 of 1995(C) --------------------- OS.63/1993 of SUB COURT, MANJERI .................... APPELLANTS ------------------ *GOPALAN ALIAS KUTTAPPAN,(DIED) S/O MATHAI, AGED 64 YEARS, MUTHIRAKKUNNEL HOUSE, EDAKKARA VILLAGE, ERNAD TALUK PALEMADU P.O, NILAMBOOR. ADDL.A2.CHELAMMA W/O GOPALAN ALIAS KUTTAPPAN 64 YEARS, MUTHIRAKUNNEL HOUSE EDAKKARA VILLAGE, ERNAD TALUK PALEMADU P.O, NILAMBUR ADDL.A3 M.G.SAROJINI, D/O GOPALAN ALIAS KUTTAPPAN 43 YEARS, MUTHIRAKUNNEL HOUSE EDAKKARA VILLAGE, ERNAD TALUK PALEMADU P.O, NILAMBUR ADDL.A4 M.G.MOHANAN,S/O GOPALAN ALIAS KUTTAPPAN 35 YEARS, MUTHIRAKUNNEL HOUSE EDAKKARA VILLAGE, ERNAD TALUK PALEMADU P.O, NILAMBUR. ADDL.A5 CHANDRIKA,D/O GOPALAN ALIAS KUTTAPPAN 37 YEARS, MUTHIRAKUNNEL HOUSE EDAKKARA VILLAGE, ERNAD TALUK PALEMADU P.O, NILAMBUR. ADDL.A6. SHYAMALA, D/O GOPALAN ALIAS KUTTAPPAN 33 YEARS, MUTHIRAKUNNEL HOUSE EDAKKARA VILLAGE, ERNAD TALUK PALEMADU P.O, NILAMBUR. ((ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADEDAS LEGAL HEIRS OF THE DECEASED 1ST APPELLANTS AS PER ORDER DATED 5.11.2004 AND 2.7.2009 IN C.M.P. NO. 5666/2000.) BY ADV. SRI.P.BABU KUMAR SMT.ASHALATHA VARMA RESPONDENT: PLAINTIFF ------------------------------------ ELAPPUNGAL JOSE S/O THOMAS, AGED 45 YEARS ELAPPUNGAL HOUSE, EDAKKARA VILLAGE, ERNAD TALUK PALEMADU P.O, NILAMBOOR. ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.T.V.VARGHESE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 1435 OF 1995 IN A.S. NO. 184 OF 1995 DISMISSED ORDER IN I.A. NO. 4686 OF 2006 IN A.S. NO. 184 OF 1995 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 30.11.2009 HARUN-UL-RASHID, J. ---------------------------------------- A.S.No.184 of 1995 ---------------------------------------- Dated this the 30th day of November, 2009 JUDGMENT The defendant in the suit is the appellant herein. The appeal is directed against the judgment and decree dated 30.1.1995 in O.S.No. 63/1993 on the file of the Sub Court, Manjeri. The trial court held that the plaintiff is entitled to a decree for specific performance of the contract Aggrieved by the above said decree and judgment, the defendant has preferred this appeal The parties hereinafter are referred to as plaintiff and defendant as arrayed in the suit. 2. The suit is for specific performance of the contract. The defendant offered to sell the plaint schedule property to the plaintiff for a consideration of Rs.42,000/- and accordingly they entered into an agreement incorporating the terms on 24.1.1990. An advance amount of Rs. 4,000/- was paid by the plaintiff on the date of agreement . The plaintiff also paid Rs. 17,000/- to the defendant towards the balance sale consideration on 26.4.1990. According to the plaintiff he has always been ready and wiling to get the sale deed executed before the date fixed for executing the document (i.e. 31.7.1990),but the defendant violated the terms of the agreement and clandestinely sold the valuable timber trees including jack trees, mango trees and rubber trees for Rs.10,000/- It is A.S.No.184 of 1995 -2- pleaded that the defendant had alienated the property to a third person It is also averred that the plaintiff is ready and willing to deposit the balance same consideration of Rs. 21,000/- and also prayed for passing a decree for specific performance of the contract. 3. In the written statement filed by the defendant,he admitted the terms of agreement . The payment of Rs.4,000/- as advance amount and the balance consideration to be payable is also admitted. The defendant contended that the plaintiff was not ready to pay the balance sale consideration on or before 31.7.1990 and also denied the allegation in the plaint that he had cut and removed certain trees standing in the plaint schedule property. It is also contended that when the defendant was in dire need of money and finding that the plaintiff was not ready to perform his part of the contract, the defendant was compelled to execute another agreement with one Monichan S/o Mathai for sale of the plaint schedule property for a consideration of Rs. 62,000/- 4. The trail court framed necessary issues. On the plaintiff's side PWs 1 to 3 were examined and Exts. A1 to A4 were marked. On the defendants' side DW1 was examined and no documents were produced on his side. 5. The execution of Ext.A1 is admitted. As per Ext.A1, the plaintiff had paid a sum of Rs.4,000/- towards sale consideration on the date of Ext.A1 agreement and agreed to pay a sum of Rs.16,000/- towards A.S.No.184 of 1995 -3- the sale consideration on or before 28.2.1990 and the remaining balance consideration of Rs.22,000/- to be paid on or before 31.7.1990. It is seen from Ext.A1 that a sum of Rs.17,000/- was paid to the defendant and the same was endorsed in Ext.A1 on 26.4.1990. Ext.A2 is the copy of the notice sent by the plaintiff to the defendant requesting the defendant to come to the Sub-Registrar's Office . 6. On a perusal of the evidence on record, it reveals that after Ext.A1 agreement the defendant had sold the trees standing in the plaint schedule property. In Ext.C1 Commissioner's report the Commissioner reported that 34 rubber trees were cut and removed from the property about 6 to 7 months prior to his inspection. 7. The learned Sub-judge examined the facts and circumstances in detail and rightly concluded that the defendant had committed breach of the contract and that the plaintiff has always been ready and willing to perform his part of the contract. The trial court held that the plaintiff is entitled to get a decree for specific performance of the contract. I find that no grounds are made out to interfere with the judgment and decree passed by the learned sub judge in the given circumstances. In the result,the appeal fails and accordingly dismissed. No order as to costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S.No.184 of 1995 ---------------------------- JUDGMENT 31st November, 2009