C.T. HARIDAS S/O RAMANKUTTY NAIR (DIED) (LRs IMPLEADED) v. KANTHASWAMY KOUNDER S/O VELLAPPA KOUNDER and CHAMUNNI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943** **SA NO. 469 OF 2002** **AGAINST THE JUDGMENT AND DECREE DATED 21.12.2001 IN AS 78/1995 OF I ADDITIONAL DISTRICT COURT, PALAKKAD AGAINST THE JUDGMENT AND DECREE DATED 30.07.1994 IN OS 459/1991 OF MUNSIFF COURT, CHITTUR** ## **APPELLANTS/RESPONDENTS 1&2/DEFENDANTS 1&2:** *1 C.T.HARIDAS S/O.RAMANKUTTY NAIR (DIED) (LRS IMPLEADED) 2 P.SREEKUMARI, W/O.C.T.HARIDAS, BOTH ARE RESIDING AT HARISREE 2/156, VELLANTHARA, CHITTUR TALUK, PALAKKAD DISTRICT. ADDL. P.SREEDEVI, A3 D/O.LATE C.T.HARIDAS, ADDL. PADMA, A4 D/O.LATE C.T.HARIDAS, ADDL. P.LAKSHMI, A5 D/O.LATE C.T.HARIDAS, ALL ARE RESIDING AT 'HARISREE' 2/156, VELLANTHARA, CHITTUR TALUK, PALAKKAD DISTRICT. (ADDL.APPELLANTS 3 TO 5 ARE IMPLEADED AS LR'S OF DECEASED 1ST APPELLANT AS PER ORDER DATED 24.10.2007 ON IA.1814/2007.) BY ADVS. SMT.RANJINI.M.PONNACHAN SRI.T.C.SURESH MENON SMT.M.R.VALSA **RESPONDENTS/APPELLANT & 3RD RESPONDENT/PLAINTIFF AND 3RD** RSA Nos. 469/2002 & Conn. cases **2** ## **DEFENDANT:** 1 ANNASELVAM, W/O CHINNAPPAN RESIDING AT ELIPARA, VADAGARAPATHY VILLAGE,, CHITTUR TALUK, PALAKKAD DISTRICT. 2 CHAMUNNI, S/O. KATHAN RESIDING AT ODACHIRA KALAM, VANDITHAVALAM VILLAGE, CHITTUR, TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.O.RAMACHANDRAN NAMBIAR FOR R1 SMT.C.R.SARADAMANI FOR R1 THIS SECOND APPEAL HAVING BEEN HEARD ON 23.11.2021, ALONG WITH SA.470/2002, 500/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA Nos. 469/2002 & Conn. cases **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943** **SA NO. 470 OF 2002** **AGAINST THE JUDGMENT AND DECREE DATED 21.12.2001 IN AS 234/1994 OF I ADDITIONAL DISTRICT COURT, PALAKKAD AGAINST THE JUDGMENT AND DECREE DATED 30.07.1994 IN OS 447/1991 OF MUNSIFF COURT, CHITTUR** ## **APPELLANTS/RESPONDENTS 1&2/DEFENDANTS 1&2:** *1 C.T.HARIDAS S/O.RAMANKUTTY NAIR (DIED)(LRS IMPLEADED) 2 P.SREEKUMARI, W/O. C.T.HARIDAS, BOTH ARE RESIDING AT HARISREE 2/156, VELLANTHARA, CHITTUR TALUK, PALAKKAD DISTRICT. ADDL.A3 P.SREEDEVI, D/O.LATE C.T.HARIDAS, ADDL.A4 PADMA, D/O.LATE C.T.HARIDAS, ADDL.A5 P.LAKSHMI, D/O.LATE C.T.HARIDAS, ALL ARE RESIDING AT 'HARISREE', 2/156, VELLANTHARA, CHITTUR TALUK, PALAKKAD DISTRICT. *(ADDL.APPELLANTS ARE IMPLEADED AS LR'S OF DECEASED 1ST APPELLANT AS PER ORDER DATED 24.10.2007 ON IA.1812/2007.) BY ADVS. SRI.T.C.SURESH MENON RSA Nos. 469/2002 & Conn. cases **4** SMT.RANJINI.M.PONNACHAN SMT.M.R.VALSA ## **RESPONDENTS:** 1 KANTHASWAMY KOUNDER S/O. VELLAPPA KOUNDER, RESIDING AT MENONPARA,, VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 2 CHAMUNNI, S/O. KANTHAN RESIDING AT ODACHIRA KALAM, VANDITHAVALAM VILLAGE, CHITTUR, TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.GEEN T.MATHEW SRI.O.RAMACHANDRAN NAMBIAR SMT.C.R.SARADAMANI THIS SECOND APPEAL HAVING BEEN HEARD ON 23.11.2021, ALONG WITH SA.469/2002 AND CONNECTED CASE, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA Nos. 469/2002 & Conn. cases **5** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943 SA NO. 500 OF 2002** **AGAINST THE JUDGMENT AND DECREE DATED 21.12.2001 IN AS 235/1994 OF I ADDITIONAL DISTRICT COURT, PALAKKAD AGAINST THE JUDGMENT AND DECREE DATED 30.7.1994 IN OS 460/1991 OF MUNSIFF COURT, CHITTUR, PALAKKAD** ## **APPELLANTS/RESPONDENTS 1&2/DEFENDANTS 1&2:** *1 C.T. HARIDAS S/O.RAMANKUTTY NAIR (DIED)(LRS IMPLEADED) 2 P. SREEKUMARI WO. C.T. HARIDAS. BOTH ARE RESIDING AT 'HRISREE', 2/156, VELLANTHARA, CHITTUR TALUK, PALAKKAD DISTRICT. ADDL.A3 P.SREEDEVI, D/O. LATE C.T.HARIDAS.'HARISREE', 2/156, VELLANTHARA, CHITTUR TALUK, PALAKKAD DISTRICT. ADDL.A4 PADMA, D/O.LATE C.T.HARIDAS, .DO. .DO. .DO. .DO. ADDL.A5 P.LAKSHMI, D/O.LATE C.T.HARIDAS, .DO. .DO. .DO. .DO. *(ADDL.APPELLANTS ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED APPELLANT 1 AS PER THE ORDER DATED 23.10.2007 IN IA.1813/2007). BY ADVS. SMT.RANJINI.M.PONNACHAN SRI.T.C.SURESH MENON SMT.M.R.VALSA RSA Nos. 469/2002 & Conn. cases **6** ## **RESPONDENTS:** 1 ARU ELIPARA, VADAGARAPATHY VILLAGE,, CHITTUR TALUK, PALAKKAD DISTRICT. **2 CHAMUNNI, S/O. KATHAN RESIDING AT ODACHIRA KALAM,, VANDITHAVALAM VILLAGE, CHITTUR TALUK,, PALAKKAD DISTRICT. (DELETED) **( 2 ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT, AS PER THE ORDER DATED 06.03.2015 IN IA.451/2015.) BY ADVS. SRI.O.RAMACHANDRAN NAMBIAR SMT.C.R.SARADAMANI **THIS SECOND APPEAL HAVING BEEN HEARD ON 23.11.2021, ALONG WITH SA.469/2002 AND CONNECTED CASE, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SA Nos. 469/2002 & Conn. cases 7 ## **K.BABU, J.** ------------------------------------------------------ ## S.A. Nos.469, 470 & 500 of 2002 ## ------------------------------------------------------- Dated this the 23[rd] day of November, 2021 ## **JUDGMENT** These Second Appeals arise from the common judgment dated 21.12.2001 passed by the I-Additional District Judge, Palakkad in A.S.Nos.234/94, 235/94 & 78/95. Defendants are common in all the original suits. Defendant Nos.1 and 2 are the appellants. Plaintiffs and defendant No.3 are the respondents. 2. The common pleadings of the plaintiffs are as follows:- 2.1. Defendant Nos. 1 and 2 are the owners of the plaint schedule properties, which formed part of a large extent of land divided as different plots for sale. Defendant No.3 placed an advertisement for the sale of different plots in a Tamil newspaper. Pursuant to the advertisement, the plaintiffs and some others approached the defendants to purchase the properties. 2.2. On 20.12.1989, the plaintiffs entered into an oral SA Nos. 469/2002 & Conn. cases 8 agreement with the defendants to purchase the plots. The plaintiff in O.S.No.447/1991 agreed to purchase 16 cents of land. The subject matter of the contract entered into between the plaintiff in O.S.NO.459/1991, and the defendants is 10 cents of land. The plaintiff in O.S.No.460/1991 agreed to purchase 13 cents of land. The consideration agreed between the parties for the property in O.S.No.447 of 1991 was Rs.250/- per cent, Rs.300/- per cent in O.S.No.459 of 1991 and Rs.250/- per cent in O.S.No.460 of 1991. The plaintiffs in O.S.No.447/91, O.S.No.459/91 and in O.S.No.460/91 paid Rs.6,000/-, Rs.2,500/and Rs.2,500/- respectively to the defendants on the date of agreement as advance. It was agreed between the parties that the balance consideration would be paid within one year. 2.3. The defendants undertook to execute the sale deed in respect of the properties in favour of the plaintiffs at the cost of the plaintiffs. It was also agreed between the parties that if the defendants committed any default in performing their part of the contract, the plaintiffs would be at liberty to get the sale deed executed through the Court. The parties also agreed that, if the plaintiffs committed default, the advance amount would be forfeited. SA Nos. 469/2002 & Conn. cases 9 2.4. In furtherance of the oral contract, the possession of the respective properties were delivered to the respective plaintiffs. They constructed homesteads in the respective properties after getting delivery of the properties. They approached defendant Nos. 1 and 2, offered to tender the balance consideration, and requested to execute the required sale deeds. Defendant Nos. 1 and 2 sought time citing the reason that, a dispute was pending between them and defendant No.3 and therefore, the period of performance was extended. The plaintiffs again approached defendant Nos. 1 and 2 on 05.09.1991, but the defendants demanded enhancement in the consideration. Defendant Nos. 1 and 2 subsequently preferred a complaint before the Vadakarapathy Panchayath and obstructed granting door numbers to the homesteads constructed by the plaintiffs in the plaint schedule properties. The plaintiffs responded to the complaint stating the true facts. The plaintiffs were always ready and willing to perform their part of the contract and continued to be ready and willing to perform their part. However, the contract could not be performed due to the breach committed by defendant Nos. 1 and 2. A lawyer's notice was caused to be issued to defendants Nos. 1 and 2. The notice was returned unserved, as the defendants refused to SA Nos. 469/2002 & Conn. cases 10 receive the same. 3. Defendant Nos.1 and 2 pleaded the following:- 3.1. No oral contract as alleged in the plaint has taken place. Defendant Nos. 1 and 2 have not engaged defendant No.3 to sell the properties. They do not known the publication of advertisements in the 'daily' by defendant No.3. The delivery of possession of the properties as pleaded by the plaintiffs is not true. The plaintiffs have no cause of action as pleaded. The plaintiffs are trespassers. The defendants had submitted a letter to the panchayath objecting allocation of door numbers to the structures constructed in the properties. 4. Defendant No.3 did not file a written statement. 5. During the trial, on the side of plaintiffs, PWs 1 to 5 were examined and Exts.A1 to A15 were marked. On the side of defendants, DW1 was examined and Ext.B1 was marked. 6. The Trial Court dismissed the suit holding that the plaintiffs failed to establish the oral agreement for sale in respect of the plaint schedule properties. 7. The plaintiffs challenged the judgment of the Trial Court in the afore captioned appeal suits. The First Appellate SA Nos. 469/2002 & Conn. cases 11 Court reversed the judgment of the Trial Court and decreed the original suits in favour of the plaintiffs, holding that the plaintiffs could establish the oral contract as pleaded and that the performance of the contract would not involve any hardship to the defendants or the contract is not inequitable. 8. Aggrieved by the judgment of the First Appellate Court, defendant Nos.1 and 2 are before this Court in these Second Appeals under Section 100 of the Code of Civil Procedure. 9. After hearing both sides, this Court reformulated the substantial question of law as follows: (i) Whether the First Appellate Court misconstrued evidence while granting specific performance of the alleged oral agreement for sale. 10. Heard Sri.B.Deepak, representing Adv.T.C.Suresh Menon, the learned counsel for the appellants and Sri.Geen T.Mathew, representing Adv.O.Ramachandran, the learned counsel for the respondents. 11. The case of the plaintiffs is that on 20.12.1989 they entered into an oral agreement for sale in respect of the plaint schedule properties with defendant Nos. 1 to 3. According to the SA Nos. 469/2002 & Conn. cases 12 plaintiffs, the properties were given to their possession on payment of the advance amount and they constructed homesteads in the properties. The plaintiffs approached the defendants seeking to execute the sale deed in respect of the properties with the balance consideration. Defendant Nos.1 and 2, initially sought an extension of time and later refused to execute the sale deed. The plaintiffs were always ready and willing to perform their part of the contract and they continued to be ready and willing to perform their part of the contract. 12. The case of defendants 1 and 2 is that there was no oral agreement for sale in respect of the plaint schedule properties as pleaded and that the properties were not given to the possession of the plaintiffs. According to the defendants, plaintiffs have no cause of action to institute the suits. 13. It is trite that a sale agreement can also be oral and it is not necessary that agreement be written. What is more important is that it should be within the ambit of Section 10 of the Indian Contract Act, and all oral and written agreements shall fulfill the conditions specified in Section 10 of the Act. In _**Ouseph Varghese v. Joseph Aley [1969 KHC 242,**_ Paragraph 8 _]_ , the Apex Court held thus:- SA Nos. 469/2002 & Conn. cases 13 _“It appears likely that neither side has come forward with the true version. But before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence. Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence. That apart, as mentioned earlier, in this case the oral testimony adduced in support of the agreement pleaded is a highly interested one. We do not think that the Trial Court was justified in relying on that testimony for granting the decree prayed for. The Trial Court itself observed in the course of its judgment (para 12) that "there is no clear cut evidence for proving the terms of the oral contract which is alleged to have been entered into by the plaintiff and the 1st defendant". This finding alone should have been sufficient to non-suit the plaintiff. Therefore we agree with the High Court, though for reasons other than those mentioned by it that the plaintiff has failed to prove the agreement pleaded in the plaint.”_ ## 14. In _**Balakrishnan v. Yakoob and Others [2001 KHC**_ _**32]**_ , this Court held that even though the preponderance of probability constitutes sufficient ground for decision in civil proceedings, there must be cogent and reliable evidence to base a suit for specific performance on the basis of an oral agreement. In _**Ummer and another v. Kunhava alias Ahammedkutty [2007 (4) KHC 315]**_ , this Court held that a decree for specific performance could not be granted based on an oral agreement supported by evidence unless there is cogent evidence to prove the agreement. SA Nos. 469/2002 & Conn. cases 14 15. The challenge to the finding of the First Appellate Court is to be appreciated in the backdrop of the principles discussed above. 16. The First Appellate Court, relying on the oral evidence of PWs 1 to 4 and admission of defendant No.1(DW1) and Ext.B1 relied on the by the defendants entered into the finding that there was a concluded oral contract for the sale of plaint schedule properties as pleaded by the plaintiffs. 17. The First Appellate Court relied on the following circumstances to enter into the above findings and to decree the suits: (i) The oral evidence of PWs 1 to 4 and the admissions of defendant No.1 together with Ext.B1 complaint filed by the plaintiffs point to the genuineness of the plea of oral agreement. (ii) Admittedly, the properties were delivered to the possession of the plaintiffs and they have constructed structures on the properties. (iii) Defendant Nos. 1 and 2 have never taken any steps to evict the plaintiffs from the properties. SA Nos. 469/2002 & Conn. cases 15 (iv) Plaintiff Nos. 1 to 3 are illiterate persons and defendant Nos. 1 and 2 are Government employees. (v) Defendant Nos. 1 and 2 with the assistance of defendant No. 3 sold out different plots from the large extent of land to different persons, based on oral contract and in none of the cases a written contract was made between the respective parties. (vi) Defendant No.3 played active role in the sale of the different plots, as defendant Nos.1 and 2 were Government employees. 18. Defendant Nos.1 and 2 admitted that defendant No.3 had maintained a close relationship with them, and he was privy to various transactions made by them. It has come out in evidence that the plaint schedule properties were delivered to the possession of the plaintiffs and that they constructed homesteads in the properties. Ext.A15 is the complaint filed by defendant Nos. 1 and 2 objecting allocation of door numbers to the structures stated to have been constructed by the plaintiffs in the plaint schedule properties. Defendant Nos.1 and 2 have not taken any steps to get the SA Nos. 469/2002 & Conn. cases 16 plaintiffs to be evicted from the plaint schedule properties. Even before 1992, the plaintiffs and some others had filed Ext.B1 complaint to the Registrar of Co-operative Societies, where defendant No.1 was employed. 19. The Trial Court recorded that the plaintiffs failed to establish the oral agreement as pleaded, mainly relying on the discrepancy in the date of the alleged agreement between the parties. The First Appellate Court ignored that discrepancy as minor and relied on the rest of the evidence on the basis of the above stated circumstances to conclude that the plaintiffs established oral agreements as pleaded. The Trial Court had also relied on the strained relationship between defendant Nos.1, 2 and defendant No.3 to record findings against the plaintiffs. The First Appellate Court also disbelieved the version of defendant No.3, who was examined as PW5. The oral evidence of plaintiffs 1 to 3 shows that they approached defendants pursuant to the advertisement published in a Tamil 'daily' and agreed to purchase the plaint schedule properties by paying advance on 20.12.1989. According to PWs 1 to 4, they were in possession of the plaint schedule properties and they have constructed homesteads therein. They applied for allotting door numbers to SA Nos. 469/2002 & Conn. cases 17 the local authority concerned. The First Appellate Court relied on the admissions of defendant No.1 while giving evidence as DW1 and Ext.B1, the complaint stated to have been filed by the plaintiffs and others who had agreed to purchase the properties from the larger extent and found that defendant Nos. 1 to 3 together sold out properties from the larger extent to different persons based on oral agreements. There is also evidence to show that the properties were delivered to the possession of the plaintiffs. Defendant No.1 had knowledge regarding the possession of the properties by the plaintiffs. The First Appellate Court took note of the fact that defendant Nos.1 and 2 had not taken any steps to evict the plaintiffs from the plaint schedule properties as a circumstance to establish the oral agreement as pleaded. 20. The learned counsel for the appellants contended that PW2 who is none other than the husband of the plaintiff in O.S.No.459/91 is an interested witness and hence his oral evidence cannot be relied upon. 21. _Per contra_ , the learned counsel for the respondents countered and submitted that, though PW2 is the husband of the plaintiff in O.S.No.459/91 he cannot be termed as an interested SA Nos. 469/2002 & Conn. cases 18 witness. A witness cannot be called an interested witness simply because he is related to the party in the proceedings. An interested witness is to be perceived as a person who has some ulterior motive in seeing a litigation decided against the opposite party. The husband of plaintiff in O.S.No.459/91, who was examined as PW2 can only be treated as a natural witness having direct information regarding the transactions pleaded in the plaint. PW2 hence cannot be treated as an interested witness. It is trite that evidence of each witness has to be weighed at its face value and a conclusion reached on the credibility thereof in the light of other admitted or proved circumstances. This Court is of the view that, in the facts and circumstances of the case, PW2, the husband of the plaintiff in O.S.NO.459/91 cannot be treated as an interested witness. Moreover, the First Appellate Court has weighed the testimony of PW2 and found him as a credible witness. The First Appellate Court mainly relied on Exts.B1 complaint filed by the plaintiffs and some others before the Registrar of Co-operative Societies, where defendant No.1 was employed, referring to the oral agreements between the defendants, plaintiffs and others as discussed above. The First Appellate Court found that the SA Nos. 469/2002 & Conn. cases 19 complaint was filed prior to 1992. The First Appellate Court also has relied on Ext.A15 complaint preferred by defendant No.1 before the local authority raising objections in allotting door numbers to the homesteads constructed by the plaintiffs in the plaint schedule properties. It is pertinent to note that the properties, in respect of which the oral agreements for sale is pleaded, were delivered to the possession of the plaintiffs and they constructed homesteads thereon. The circumstances relied on by the First Appellate Court are sufficient to conclude that the plaintiffs established the oral contract pleaded. On a careful analysis of the materials placed, this Court is not in a position to accept the contention that the First Appellate Court misconstrued the evidence while holding that the plaintiffs established an oral agreement for sale in respect of the plaint schedule properties. The learned counsel for the appellants relying on _**Manjunath Rao U. v. U.Chandrashekar and another [2017 KHC 6529]**_ and _**Nicholas V. Menezes v. Joseph M. Menezes and others [2009 KHC 4564],**_ submitted that the matter may be remitted to the First Appellate Court for fresh consideration as the First Appellate Court has not re-appreciated the entire materials while reversing the Trial Court judgment. In SA Nos. 469/2002 & Conn. cases 20 _**Manjunath Rao U. case (supra)**_ , the Apex Court was considering a case where the First Appellate Court had not analysed the facts or law or discussed the points urged. In the present case, the First Appellate Court has considered the entire materials and re-appreciated the pleadings and evidence, and recorded independent findings. The judgment of the First Appellate Court reflects conscious application of mind and the findings of the First Appellate Court are supported by reasons. Hence, I find no reason to interfere with the findings recorded by the First Appellate Court. The substantial question of law formulated is answered against the appellants. The Second Appeals lack merits and hence they are dismissed. Parties are directed to bear their respective costs. **Sd/K.BABU JUDGE** VPK