Dismissed

Kuniyil Syed Ammed Haji v. Kammanol Syed Kathiya

Kerala HC6 Jul 2018RSA/120/2004

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a second appeal filed by a plaintiff against the concurrent dismissal of a suit and appeal for specific performance of a contract for sale, holding that there was no sufficient failure of natural justice to interfere with the lower courts' finding that execution was not proved.

What did the court decide?

The second appeal was dismissed without costs.

Kuniyil Syed Ammed Haji Vs Kammanol Syed Kathiya — Specific Performance | Kerala HC (2018)

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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 P.SOMARAJAN

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FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940

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RSA.No. 120 of 2004

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AGAINST THE DECREE AND JUDGMENT IN AS 32/2001 OF THE SUB COURT, BADAKARA, DATED 29.7.2003, WHICH WAS FILED AGAINST THE DECREE AND JUDGMENT DATED 28.3.2001 IN OS NO.55/1998 OF THE MUNSIFF'S COURT, NADAPURAM.

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APPELLANT/APPELLANT/PLAINTIFF

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KUNIYIL SYED AMMED HAJI, S/O.MOOSA HAJI, AGED 57 YEARS, PENSIONER, RESIDING AT PADINHARE VEETTIL HOUSE, KAYAKKODI AMSOM, DESOM,, VATAKARA TALUK, KOZHIKODE DISTRICT.

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BY ADVS.SRI.T.SETHUMADHAVAN

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SRI.K.JAYESH MOHANKUMAR

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SRI.PUSHPARAJAN KODOTH

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RESPONDENTS/RESPONDENTS/DEFEDANTS:

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KAMMANOL SYED KATHIYA, D/O.MOOSSA HAJI, AGED 57 YEARS, SWASTAEM, RESIDING AT KOLLIYIL, MENHANYAM AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.

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KOLLIYIL V.T., EBRAI, AGED 57 YEARS, BUSINESS, RES. AT -DO- -DO-.

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SYED BIYYATHU, D/O.MOOSA HAJI, AGED 55, KALLIL, VANIMAL AMSOM,, MAMBILAKKOOL DESOM,

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VATAKARA TALUK,, KOZHIKODE DISTRICT.

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KALLIL AHMAD, S/O.MOIDU HAJI, AGED 39, BUSINESS, VANIMAL AMSOM, MAMBILAKKOOL DESOM, VATAKARA TALUK,, KOZHIKODE DISTRICT. (DELETED)

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KALLIL ABDUL GAFOOR, S/O.MOIDU HAJI, AGED 27, BUSINESS RES. AT -DO- -DO-

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KALLIL MOIDU HAJI, S/O.KUTTIALI AGED 60, BUSINESS RES. AT -DO- -DO-.

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MUNDAKKOTAN KANDY POKKAR, S/O.AMMAD, AGED 57 YEARS, BUSINESS,, RES.. AT KAREKUNNUMMEL, KAYAKKODI AMSOM,, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.

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THE 4TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF TGE APPELLANT AS PER ORDER DATED 3.7.2018 ON MEMO VIDE CF.4031/2018 DATED 2.6.2018.

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R1-R3, R5 AND R6 BY ADV. SRI.B.KRISHNAN

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ADV. SRI.R.PARTHASARATHY

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.Somarajan, J.

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R.S.A. No.120 of 2004 (E)

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-----------------------------------------------------Dated this the 6^th day of July, 2018

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JUDGMENT

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Against the decree and judgment, dated 29.7.2003, in A.S.No.32 of 2001 of the Subordinate Judge's Court, Badakara and the decree and judgment, dated 28.3.2001, in O.S.No.55 of 1998 of the Munsiff's Court, Nadapuram, the plaintiff came up with this appeal against the concurrent finding and decree of dismissal of the suit and appeal.

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The suit was for specific performance based on a contract for sale filed by the plaintiff with respect to an extent of 1.07 cents of property. The execution and payment of advance amount out of the sale consideration which, according to the plaintiff, comes to `30,000/- was disputed by the defendants. The trial court dismissed the suit which was confirmed in appeal by the first appellate court against which this second appeal is preferred.

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R.S.A. No.120 of 2004 (E)

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:: 2 ::

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Both the trial court and the first appellate court

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dismissed the suit mainly on the ground that there is failure on the part of the plaintiff to prove due execution of the contract for sale though he had examined PW1 to PW4 in support of his case. PW1 is the plaintiff. PW2 is the scribe, PW3 is one of the attesting witnesses and PW4 is a worker of the plaintiff who had seen the alleged transaction. The evidence of PW1 and PW4 were rejected as they are interested testimonies. The evidence adduced through PW2 scribe and PW3 attesting witness were also not accepted by the courts below on the reason that they turned against the case of the plaintiff regarding execution of the alleged contract for sale. There is a concurrent finding made by both the trial court and the first appellate court on the question of execution of the alleged contract for sale. Nothing else was brought to the notice of this court in order to have an interference by way of second appeal to the decree and judgment of the courts below.

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R.S.A. No.120 of 2004 (E)

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:: 3 ::

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Hence, the second appeal lacks in merits, deserves

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only dismissal and I do so, but without costs.

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Sd/P. Somarajan Judge

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ahz/

Kuniyil Syed Ammed Haji v. Kammanol Syed Kathiya

Case brief

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Kuniyil Syed Ammed Haji v. Kammanol Syed Kathiya

Case brief

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