Dismissed

Prabhul v. Tomy

Kerala HC2 Aug 2012RSA/940/2012

Case brief

AI extract

What is this about?

This regular Second Appeal challenged the dismissal of a suit for specific performance and decree of a prohibitory injunction. The High Court held that the finding against the execution of the alleged agreement for sale was based on evidence appreciation and did not raise a substantial question of law. Consequently, both Second Appeals were dismissed.

What did the court decide?

Second Appeals dismissed and all pending interlocutory applications dismissed.

Prabhul Vs Tomy — Specific Performance | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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THURSDAY, THE 2ND DAY OF AUGUST 2012/11TH SRAVANA 1934

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RSA.NO. 940 OF 2012 ()

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AS.87/2010 OF DISTRICT COURT,THODUPUZHA OS.165/2007 OF MUNSIFF'S COURT, THODUPUZHA

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APPELLANT/APPELLANT/PLAINTIFF:

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PRABHUL, S/O T.N. GOPI, PAURNAMY HOUSE, MANALTHAZHAM VALAYANADU VILLAGE, KOZHIKODE CORPORTION.

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BY SENIOR ADVOCATE SHRI S.V. BALAKRISHNA IYER

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BY ADVS.SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.N.AJITH

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SRI.P.B.SUBRAMANYAN

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1. TOMY,

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S/O MATHEW, KADALIKATTIL HOUSE, THEKKUMBHAGOM KARA KARIKODE VILLAGE, THODUPUZHA-686 610.

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2. RAJEEV, S/O RAMAKRISHNAN NAIR, NEELAGIRI HOUSE VENGALLOR KARA, KUMARAMANGALAM VILLAGE THODUPUZHA TALUK, PIN-685 584.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02-08-2012, ALONG WITH RSA. 951/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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==================================== R.S.A. Nos. 940 & 951 of 2012

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====================================

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Dated this the 02^nd day of August, 2012

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J U D G M E N T

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These appeals arise from the common judgment and decree of learned District Judge, Thodupuzha in A.S. Nos.87 and 86 of 2010, respectively arising from the common judgment and decree in O.S. Nos.165 of 2007 and 173 of 2007, respectively of the court of learned Munsiff, Thodupuzha. O.S. No.165 of 2007 is filed by the appellant (in both the appeals) for a decree for specific performance of Ext.A1, agreement for sale executed by the 1^st respondent. O.S. No.173 of 2007 is filed by the 2^nd respondent against the appellant and others for a decree for prohibitory injunction claiming to be in possession of the property on the strength of title. Learned Munsiff decreed O.S. No.173 of 2007 and dismissed O.S. No.165 of 2007. In the respective appeals arising from the said suits, learned District Judge confirmed the decision of learned Munsiff. Hence these Second Appeals. Parties are referred to as arrayed in R.S.A. No.940 of 2012

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Exhibit A1 is the agreement for sale relied on by the appellant for claiming a decree for specific performance in O.S.

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R.S.A. Nos.940 & 951 of 2012

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-: 2 :-

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No.165 of 2007 and to resist O.S. No.173 of 2007.

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The suit property originally belonged to one Ratheesh who executed Ext.B7, sale deed dated 23.05.2001 to one Jameela. Jameela executed Ext.B8, assignment deed dated 25.07.2002 in favour of the 1^st respondent who in turn transferred the property to the 2^nd respondent as per Ext.B1. Thus the 2^nd respondent claimed to be the owner in possession of the suit property.

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So far as the appellant is concerned, his claim is based on Ext.A1, agreement for sale allegedly executed by the 1^st respondent (who later executed Ext.B1, assignment deed in favour of the 2^nd respondent) agreeing to sell the suit property to the appellant for a consideration of Rs.75,000/-. According to the appellant, he paid Rs.50,000/- by way of advance to the 1^st respondent. While so, the 1^st respondent executed Ext.B1 in favour of the 2^nd respondent to defeat the claim of appellant arising from Ext.A1.

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The trial court found that due execution of Ext.A1 is not proved, upheld Ext.B1, assignment deed in favour of the 2^nd respondent and accordingly dismissed O.S. No.165 of 2007 and decreed O.S. No.173 of 2007. The first appellate court confirmed

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R.S.A. Nos.940 & 951 of 2012

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-: 3 :-

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the same. Hence these Second Appeals.

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The learned Senior Advocate has contended that the finding of the courts below regarding due execution of Ext.A1 is not correct. It is contended that in view of the denial of due execution of Ext.A1 by the 1^st respondent, there was an attempt to send Ext.A1 to the Expert for opinion. But the Expert wanted better details for comparison. Thereafter nothing was done in the matter. Thus opinion of the Expert in the matter was not obtained. The learned Senior Advocate contended that the circumstances would show that Ratheesh had executed Ext.B7 in favour of Jameela only as security for due repayment of Rs.1,00,000/- he had collected from the said Jameela and that it was when Rathesh failed to repay the amount borrowed that she executed Ext.B8, dated 25.07.2002 to the 1^st respondent.

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What is required to be decided is whether the finding of the courts below that the appellant either as plaintiff in O.S. No.165 of 2007 or as 1^st defendant in O.S. No.173 of 2007 has not proved the due execution of Ext.A1, the alleged agreement for sale involves any substantial question of law.

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The appellant gave evidence as P.W.1. He stated that the 1^st respondent has signed Ext.A1 and that he was given

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R.S.A. Nos.940 & 951 of 2012

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-: 4 :-

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photocopies of the prior title deeds (none of which are produced in the trial court but the learned Senior Advocate submitted that those photocopies are now produced). Evidence of P.W.1 would show that he has no idea as to whether the property (which he allegedly agreed to purchase as per Ext.A1) originally belonged to Ratheesh or Rajesh who are the children of his uncle. He stated in cross-examination that the person who agreed to sell the property is not before the court. He claimed to have accompanied the 2^nd respondent to purchase the stamp paper to Karikkode (wherefrom according to the appellant the stamp paper for execution of Ext.A1 was purchased). But Ext.A1 shows that the stamp papers were purchased from Muvattupzha and that too, in the name of Ratheesh. According to P.W.1, one witness in Ext.A1 is a friend of Ratheesh (the 2^nd respondent). P.W.1 does not know what are the cultivations in the suit property. He stated that the statement in O.S. No.165 of 2007 (filed by him) that the 1^st respondent had agreed to execute the sale deed after a week is not correct. A further fact that has emerged from the evidence of the appellant as P.W1 is that he has no idea as regards the institution of O.S. No.165 of 2007. Though Advocate T.J.Vincent appeared for him in O.S. No.165 of 2007 and O.S.

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R.S.A. Nos.940 & 951 of 2012

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-: 5 :-

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No.173 of 2007, he stated that he has heard of the said Advocate and that the Advocate fee was paid by the 2^nd respondent. A further fact which the courts below noticed is that in the plaint in O.S. No.165 of 2007, the age of the 1^st respondent who allegedly executed Ext.A1 in favour of the appellant is shown as 35 years but in the course of evidence P.W1 stated that the 1^st respondent is aged about 50 years. He also stated that he had not told to his counsel age of the 1^st respondent as 35 years.

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It is the case of the 1^st respondent that Ext.A1 was fraudulently created by Ratheesh and his brother, Rajesh.

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D.W2 is the scribe examined to prove the alleged execution of Ext.A1. She stated that she has not seen anybody signing Ext.A1 and that Ext.A1 was got prepared by Rajesh.

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For whatever reason it be, expert opinion also is not available to decide whether Ext.A1 was executed by the 1^st respondent. The trial court in the above circumstances found against due execution of Ext.A1. That decision was confirmed by the first appellate court.

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The decision of the trial court as confirmed by the first appellate court as regards the due execution of Ext.A1 is one of

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R.S.A. Nos.940 & 951 of 2012

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-: 6 :-

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fact based on appreciation of evidence. That in my view does not involve any substantial question of law requiring decision by this Court.

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The Second Appeals are dismissed.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Prabhul v. Tomy

Case brief

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Prabhul v. Tomy

Case brief

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