The High Court of Kerala dismissed the appeal against the trial court's dismissal of a suit for specific performance. The High Court found the plaintiff's evidence regarding the execution of the agreement for sale and extensions to be false, unbelievable, and collusive.
Appeal dismissed with costs against the appellant.
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 K.ABRAHAM MATHEW
TUESDAY, THE 6TH DAY OF MARCH 2018 / 15TH PHALGUNA, 1939
AS.No. 570 of 2001
AGAINST THE JUDGMENT IN OS 609/1995 of PRL.SUB COURT,KOTTAYAM DATED 31-03-2001
APPELLANT/PLAINTIFF:
JOSEPH JOSEPH, PUTHENPURAYIL HOUSE, POONJAR VADAKKEKARA KARA, POONJAR VILLAGE, MEENACHIL TALUK.
BY ADV.SRI.GEORGE VARGHESE (MANACHIRACKEL)
RESPONDENTS/DEFENDANTS 2 TO 5 & ADDL.DEFENDANTS 6 TO 9:
AS.No. 570 of 2001 2
| 7. | RINCY JOSEPH, KALLARACKAL HOUSE, PANACHIPPALLI KARA, KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK |
|---|---|
| 8. | RENJU MATHEW, KALLARACKAL HOUSE, PANACHIPPALLI KARA, KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK. |
| ADDL.R9. | DEENAMMA THOMAS, AGED 62 YEARS, KOOTTUNKAL HOUSE, NADUKANI.P.O, KOTHAMANGALAM |
| 10. | THANKAMMA SEBASTIAN, AGED 59 YEARS, THERUVIL VEEDU, KEEZHATHADIYOOR PO, PALAI-686 575 |
| 11. | T.D.JOSE (RETD.S.P), AGED 57 YEARS, MUTTATHU VEEDU, NADUPARAMB, NEAR LORETTA BHAVAN, VADAVATHOOR P.O, KOTTAYAM |
| 12. | ACCAMMA @ ELIZABETH THOMAS, AGED 52 YEARS, MURINJALAKKAL VEEDU, KOORALI PO, ELANGALAM, PIN-686 522 |
| 13. | T.D.THOMAS, AGED 50 YEARS, MUTTATHU VEEDU, 13/140 A, SANTHIGRAM, MANCHERI PO, MALAPPURAM DISTRICT |
| 14. | T.D.MATHEW, AGED 48 YEARS, MUTTATHU VEEDU, 31ST MILE, K.K.ROAD, MUNDAKKAYAM P.O |
| 15. | KURUVILA SEBASTIAN, AGED 42 YEARS, MUTTATHU VEEDU, KOOVAPPALLY PO, KANJIRAPPALLY |
| 16. | SIBY SEBASTIAN, AGED 40 YEARS, MUTTATHU VEEDU, KOOVAPPALLY PO, KANJIRAPPALLY |
AS.No. 570 of 2001 3
THE 4TH RESPONDENT DIED AND ADDITIONAL RESPONDENTS 9 TO 17 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE 4TH RESPONDENT AS PER ORDER IN I.A.NO.4255/2006 DATED 26.9.2007.
ADDL RESPONDENTS IMPLEADED
AS.No. 570 of 2001 4
ADDL.RESPONDENTS TO BE IMPLEADED AS R29 TO R31 AS LRS OF 1ST RESPONDENT.
THE OTHER LR'S OF THE DECEASED SOLE APPELLANT SOUGHT TO BE IMPLEADED ARE IMPLEADED AS ADDL RESPONDENTS R18 TO R28 IN I.A.NO.770/2009 AS PER ORDER DATED 18.3.2013 IN I.A.NO.3071/2009.
ADDL.R29, 30 & 31 ARE IMPLEADED AS PER ORDER DATED 10.2.2016 IN I.A.NO.1086 OF 2015
AS.No. 570 of 2001 5
ADDL.R15 & 16 BY ADV. SRI.MOHAN JACOB GEORGE ADDL.R15 & 16 BY ADV. SMT.P.V.PARVATHI ADDL.R15 & 16 BY ADV. SMT.REENA THOMAS R11,13,14 BY ADV. SRI.G.S.REGHUNATH ADDL.R15 & 16 BY ADV. SRI.L.RAM MOHAN R19 TO 27 BY ADV. SMT.SALI. P. MATHEW (MUNNAR)
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12-2-2018 ALONG WITH CROSS OBJECTION,THE COURT ON 06-03-2018 DELIVERED THE FOLLOWING:
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K.ABRAHAM MATHEW J.
A.S.No.570 of 2001
Dated this the 6th day of March, 2018
JUDGMENT
The appellant was the plaintiff in O.S.No.609 of 1995 of Sub Court, Kottayam. He instituted the suit against five defendants. The first defendant died pending the suit. His legal representatives were impleaded as additional defendants 6 to 9. During the pendency of the suit the 2nd defendant and the 5th defendant died (respondents 1 and 4 respectively in this appeal). Their legal representatives have been impleaded as additional respondents. In this judgment the parties are referred to as plaintiff and defendants.
A.S.No.570 of 2001 2
4, in collusion with the 5th defendant, were attempting to create some documents and to put the 5th defendant in possession of the property. The plaintiff sent a notice to defendants 1 to 4 to complete the transaction by executing a sale deed after receiving the balance sale consideration. On these allegations he prayed for a decree for specific performance and for a perpetual injunction. Later, he amended his plaint to incorporate a plea that by sale deed Nos.370 and 371 of 1991 defendants 1 to 4 alienated the properties to the 5th defendant on 4.2.1991. He prayed for a declaration that the sale deeds did not come into force and they would not effect his rights in the plaint schedule properties. Defendants 1 to 4 did not appear in the trial court. In his written statement and additional written statement the 5th defendant contended that the suit was filed in collusion with defendants 1 to 4 and there is no truth in the allegation that the plaintiff entered into an agreement with defendants 1 to 4 for sale of the plaint schedule property and they put him in possession of the properties. He prayed for dismissal of the suit with costs. After the trial the learned Sub Judge found that the plaintiff's allegations are false and accordingly, he dismissed the suit. He did not award costs to the 5th defendant. In the appeal filed by the plaintiff he challenges the judgment and the decree.
A.S.No.570 of 2001 3
Points 1 and 2
A.S.No.570 of 2001 4
cannot be accepted. The document should not have been handed over to him before he deposed to the alleged execution by defendants 1 to 4. In the crossexamination it was brought out that he was residing 5 K.M away from the house of the second defendant where Ext A1 allegedly executed. He was an advocate clerk during the relevant period. He would say that when the first defendant met him at Ponkunnam the former asked him to go with him to the house of the first defendant to execute the document, there was no preparation of a draft. It was suggested to him in the cross-examination that Ext A1 is an antedated document. The witness took time to respond to the question. At last he stated that he did not know it. In the re-examination by asking leading question he was made to say that Ext A1 was written on the date on which it is shown to have been written in the document. It is only to be ignored. It is unbelievable that he wrote the document in the circumstances deposed to by him. His evidence is false. His failure to deny the suggestion that Ext A1 is an antedated document speaks volumes.
A.S.No.570 of 2001 5
Ext A1 (a), later, the period was extended up to 5.8.1995 again at the request of defendants 1 to 4, this was endorsed in Ext A1 and marked Ext A1(b). The plaintiff (PW1) has no case that he saw the defendants 1 to 4 endorse Ext A1(a), A1(b) by scribing their signatures. So execution of Exts A1(a) and A1(b) also has not been proved.
A.S.No.570 of 2001 6
three title deeds of defendants 1 to 4 was brought out in the examination-inchief of PW1 in an unfair manner. Even before he deposed that defendants 1 to 4 handed over the title deeds to him, his counsel asked him who entrusted the documents with him. Still the witness did not mention who gave him the documents. His answer was that he was given three documents. He did not depose how he got the 4th title deed which was marked Ext A9.
A.S.No.570 of 2001 7
the properties even on a single occasion. In the cross-examination he admitted that he knew that the 5th respondent had paid tax. He even understood that mutation had been effected in favour of the 5th defendant in the revenue records.
A.S.No.570 of 2001 8
rightly found that the suit was filed in collusion with defendants 1 to 4. The
points are found against the appellant.
In the result, this appeal is dismissed with costs.
K.ABRAHAM MATHEW JUDGE
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2 issues framed by the court
Whether the trial court was right in finding that there has been no agreement between the plaintiff and defendants for sale of the plaint schedule properties?
Whether the judgment and the decree of the trial court are liable to be set aside?
Joseph Joseph
Jacob Mathew
Antony Mathew
K.M. Mathew
Devasia
Lissiamma Joseph
K. Abraham Mathew
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
