Dismissed

Sarala v. Subhadra

Kerala HC3 Jun 2024RSA/743/2021

Case brief

AI extract

What is this about?

In this regular second appeal under Section 100 CPC, the Kerala High Court dismissed the appeal. The Court held that the lower courts correctly found that the appellants failed to prove the execution of the disputed agreements for sale and failed to establish part performance, as no corroborative evidence was adduced beyond insufficient oral testimony.

What did the court decide?

The appeal was dismissed in limine with no infirmity or perversity found in the findings of the lower courts regarding lack of evidence for execution and part performance.

Sarala Vs Subhadra — Specific Performance | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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MONDAY, THE 3^RD DAY OF JUNE 2024 / 13TH JYAISHTA, 1946

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RSA NO. 743 OF 2021

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AGAINST THE JUDGMENT AND DECREE DATED 26.11.2020 IN AS NO.528 OF

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2014 OF THE ADDITIONAL DISTRICT JUDGE'S COURT-II,

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THIRUVANANTHAPURAM ARISING OUT OF THE JUDGMENT AND DECREE DATED

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20.08.2014 IN OS NO.1 OF 2005 OF COURT OF SUB JUDGE, ATTINGAL

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APPELLANTS/APPELLANTS/PLAINTIFFS:

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1 SARALA AGED 64 YEARS W/O.LATE VISWAMBHARAN, OTTATHENGUVILAKATH PUTHEN VEEDU, PILAVEETTU MURIYIL, VEYILOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695 302.

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2 RONI

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AGED 36 YEARS

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S/O.LATE VISWAMBHARAN, OTTATHENGUVILAKATH PUTHEN VEEDU, PILLAVEETTU MURIYIL, VEYILOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695 302.

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3 ROBI

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AGED 34 YEARS S/O.LATE VISWAMBHARAN, OTTATHENGUVILAKATH PUTHEN VEEDU, PILLAVEETTU MURIYIL, VEYILOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695 302.

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BY ADVS.C.A.CHACKO C.M.CHARISMA

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 SUBHADRA AGED 74 YEARS D/O.PADMANABHAN, USHUS, MELTHONNAKKAL DESOM, MELTHOONNAKKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695 313.

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2 SATHEESH KUMAR AGED 50 YEARS

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S/O.RAVEENDRAN, USHUS, PATTATHIL MURIYIL, MELTHONNAKKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695 313.

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R.S.A.No.743 of 2021

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3 LAILA AGED 45 YEARS D/O.RAVEENDRAN, USHUS, PATTATHIL MURIYIL, MELTHONNAKKAL P.O., MELTHONNAKKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695 313.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.S.A.No.743 of 2021

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C.S.SUDHA, J.

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R.S.A.No.743 of 2021

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Dated this the 3 rd day of June 2024

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J U D G M E N T

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This second appeal under Section 100 read with Order

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XLII Rule 1 CPC filed by the plaintiffs/appellants is against the judgment and decree dated 26/11/2020 in A.S.No.528/2014 on the file of the Additional District Judge's Court-II, Thiruvananthapuram,

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which appeal in turn is against the judgment and decree dated 20/08/2014 in O.S.No.1/2005 on the file of the Court of Sub Judge,

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Attingal. The parties and the documents will be referred to as described in O.S.No.1/2005.

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2 . According to the plaintiffs, initially the plaint schedule property belonged to the parents of Viswambharan, the predecessor-

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in-interest of the plaintiffs and his sister, the first defendant. The first plaintiff is the wife and plaintiffs 2 and 3, the children of late

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Viswambharan. The plaint schedule property was bequeathed by

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R.S.A.No.743 of 2021

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the parents to the first defendant, vide registered Will No.5/1960, SRO Kazhakoottam, dated 18/04/1960. After the death of the parents, the Will came into effect and the first defendant became the absolute owner in possession and enjoyment of the property. Viswambharan was also given certain properties on the strength of the aforesaid Will. The property obtained by Viswambharan and the plaint schedule property are adjacent properties. The first defendant agreed to sell the plaint schedule property to Viswambharan for a total sale consideration of ₹75,000/- relating to which an agreement for sale dated 14/03/1989 was executed by the first defendant in favour of late Viswambharan. Pursuant to the execution of the agreement, Viswambharan paid a sum of ₹60,000/- as advance sale consideration. As per the terms of the agreement, the possession of the plaint schedule property was handed over to Viswambharan, who has been in possession and enjoyment of the same along with the property obtained by him as a compact plot. When the first defendant failed to perform her part of the agreement, performance of the same was demanded by Viswambharan. The first defendant

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R.S.A.No.743 of 2021

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then demanded more amount, and as insisted by her, Ext.A1, a fresh agreement for sale dated 18/06/2023 was executed. The total consideration for the plaint schedule property was enhanced to ₹1,10,000/-. On the date of execution of Ext.A1, an additional amount of ₹10,000/- towards sale consideration was given to the first defendant. Viswambharan was liable to pay the remaining amount of ₹40,000/- towards sale consideration. While so, Viswambharan passed away on 14/07/2003. The first defendant thereafter refused to execute a sale deed in respect of plaint schedule property by receiving the balance sale consideration of ₹40,000/-. Hence the plaintiffs, the legal heirs of Viswambharan, caused to issue a lawyer notice to the first defendant to which he has given a reply raising untenable contentions. In order to defeat the right of the plaintiffs, the first defendant has transferred the property in favour of defendants 2 and 3. As breach of the agreement has been committed by the first defendant, the suit claiming a decree of specific performance of Ext.A1 agreement and for consequential injunction.

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3 . The first defendant filed written statement denying the

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execution of the agreements relied on by the plaintiffs. According to the first defendant, she had never executed any such document in favour of Viswambharan. There was never an occasion for her to do so. The agreements relied on by the plaintiffs are forged/fabricated and concocted documents. The first defendant had not received any money as advance sale consideration as alleged by the plaintiffs. The property bequeathed to the defendant is lying distinct and separate and bounded on all four sides by well defined boundaries and is clearly separated from the property obtained by Viswambharan. Viswambharan had never staked any claim over the plaint schedule property. As no agreements for sale had been executed by the first defendant, there was no occasion for her to transfer possession of the property to Viswambharan. The revenue records relied on by the plaintiffs would not confer the plaintiff's any right, title or possession over the immovable property.

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4 . The second and third defendants filed separate written

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R.S.A.No.743 of 2021

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statement reiterating the contentions of the first defendant.

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5 . Necessary issues were raised by the trial court. Both the parties went to trial on the basis of the aforesaid pleadings. PW1 and PW2 were examined and Exts.A1 to A14 series were marked on the side of the plaintiffs. No oral or documentary evidence was adduced by the defendants. The reports and plans of the Advocate Commissioner have been marked as Exts.C1 to C2(a). The trial court on a consideration of the oral and documentary evidence and after hearing both sides, dismissed the suit finding that the plaintiffs had failed to prove execution of Ext.A1 agreement for sale. It was also found that the plaintiffs had failed to prove part performance of the contract. Aggrieved, the plaintiffs took up the matter in appeal as A.S.No.528/2014. The appellate court concurred with the findings of the trial court and dismissed the appeal. Hence the present appeal.

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6 . Heard the learned counsel for the plaintiffs/appellants.

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7 . It is submitted by the learned counsel for the

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plaintiffs/appellants that both the courts grossly erred in dismissing the suit finding that execution of Ext.A1 agreement had not been

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proved, causing grave injustice to the plaintiffs and hence the decree requires to be reversed.

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8 . As stated earlier, the first defendant is alleged to have executed an agreement dated 14/03/1989 by which she agreed to sell the plaint schedule property to the plaintiffs. The first defendant failed to perform her part of the agreement and hence when performance was demanded by Viswambharan, the predecessor-ininterest of the plaintiffs in whose favour the document was executed, the former insisted on executing a second agreement and hence Ext.A1 agreement dated 18/06/2003 was executed in which document, the execution of the earlier agreement is also mentioned. The defendants have specifically denied the execution of both the documents and contended that the first defendant had never executed any such agreement for sale and that both the agreements relied on by the plaintiffs are forged, fabricated and concocted

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documents. Admittedly, none of the plaintiffs are parties or witnesses in either of the agreements relied on by the plaintiffs. When execution of Ext.A1 agreement and the earlier agreement alleged to have been executed on 14/03/1989 were disputed, the burden was on the plaintiffs to prove the same. It is only when the plaintiffs discharge their primary burden of proving the execution of the said documents by the first defendant, the onus would shift to the defendants to disprove the same. Here though execution of both the agreements relied on by the plaintiffs are disputed by the first defendant, the plaintiffs did not take any steps to prove the execution of Ext.A1 agreement or the earlier agreement by examining either the scribe or the witness(s) to the documents. Apart from the oral testimony of PW1, which both the courts rightly found to be insufficient, there is no evidence to prove the execution of Ext.A1 agreement.

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9 . The plaintiffs also seem to have a case of part performance of the contract. However as noticed earlier, the

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agreement dated 14/03/1989 alleged to be the first agreement by which possession of the property had been handed over to Viswambharan, was never produced before the court. There may be a reference to the said agreement in the recitals in Ext.A1. However, that is not sufficient when execution of both the agreements are disputed by the defendants. When execution of both the documents are disputed, the burden was on the plaintiffs to produce both the documents and prove the execution of the same. The plaintiffs are seen to have taken a stand that the original of the agreement dated 14/03/1989 was in the possession of the first defendant. If that be so, the plaintiffs ought to have taken steps to direct the first defendant to produce the same. However, no such step is seen taken by the plaintiffs in the said direction.

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10. The plaintiffs also have case that after possession of the plaint schedule property was handed over on 14/03/1989 by the first defendant to Viswambharan, he was enjoying his property as well as the plaint schedule property as a compact plot. However, the

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evidence on record shows that both the properties are not lying as a

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compact plot but are separated by well demarcated boundaries. The

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plaintiffs rely on the revenue records, namely Ext.A5 land tax receipt to show that the entire property has been assessed in the name of Viswambharan. It is well settled that entries in the revenue records will not confer or take away title. The claim of the plaintiffs based on Ext.A1, the execution of which as rightly found by both the courts, has not been established.

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The defendants have also given a plausible explanation as to why the property continued to be shown as a single plot in the revenue records. The survey plan on the basis of which the property was measured, had been prepared prior to execution of Ext.A6 Will, at which time the entire property was lying as one single plot. However after Ext.A6 Will, both the parties took possession of their respective property which are now demarcated by well defined boundaries. The reports and plans of the Advocate Commissioner disprove the case of the plaintiffs that the properties are lying contiguously or as a compact plot. There is no satisfactory evidence

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or evidence for that matter to prove that the plaintiffs are in possession of the plaint schedule property. Therefore, as rightly held by both the courts, neither the execution of Ext.A1 nor the prior agreement for sale had been established by the plaintiffs. The claim for part performance has also not been substantiated. Hence both

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the courts were right in refusing to grant a decree in favour of the plaintiffs.

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There is no infirmity or perversity in the findings of the

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trial court or the first appellate court calling for an interference by this Court. As no substantial questions of law arise, the appeal is liable to be dismissed in limine and hence I do so.

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Interlocutory applications, if any pending, shall stand closed.

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Sd/-

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C.S.SUDHA JUDGE

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ami/

Sarala v. Subhadra

Case brief

What is this about?

What did the court decide?

Sarala v. Subhadra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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