In this second appeal, the High Court of Kerala examined challenges to findings of no specific oral agreement and limitation bar in a suit for specific performance. Finding no substantial question of law, the court dismissed the appeal in limine.
Second appeal dismissed in limine.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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
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
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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.
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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.
Resultantly the second appeal is dismissed in limine.
THOMAS P JOSEPH, JUDGE
Sbna/
2 issues framed by the court
Whether the findings of the courts below regarding the non-existence of an oral agreement for sale and the bar of limitation are legal and sustainable.
Whether the second appeal raises any substantial question of law requiring decision.
Shamsudhin
Amini
Baby George
Babu George
Davis George
Thomas P. Joseph
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
