Jose K. Peter v. Paulson Peter

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY ,THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** **AS.No. 2 of 2000** **AGAINST THE DECREE AND JUDGMENT DATED 31-07-1999 IN OS NO.140/1996 of SUB COURT, MUVATTUPUZHA** ## **APPELLANT/DEFENDANT:** **JOSE K.PETER, SON OF PATHROSE, AGED 35 YEARS, RESIDING AT KADAMKULATHIL HOUSE AND WORKING AS OFFICER, CATHOLIC SYRIAN BANK, M.G.ROAD, ERNAKULAM.** **BY ADVS. SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL MS.ANAGHA LAKSHMI RAMAN** ## **RESPONDENT/PLAINTIFF:** **PAULSON PETER, SON OF PATHROSE, AGED 31 YEARS, RESIDING AT KADAMKULATHIL HOUSE, AYAVANA KARA, ERANALLOOR VILLAGE, MUVATTUPUZHA TALUK.** **SRI.PAULSON PETER, PARTY IN PERSON SRI.JOSEPH ABRAHAM - CONCILIATOR** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** A.S.No.2 of 2000 2 ## **A.HARIPRASAD, J.** **-------------------------------------A.S. No.2 of 2000 -------------------------------------Dated this the 31[st] day of January, 2019** ## **JUDGMENT** Appeal by the defendant in O.S.No.140 of 1996 before the Subordinate Judge's Court, Muvattupuzha against the grant of a decree in a suit for specific performance of an oral agreement. 2. Plaint averments, in short, are as follows: Plaintiff and defendant are siblings. Plaint A and B schedule properties belonged to the defendant by virtue of two registered sale deeds. Plaintiff would contend that in the last week of February, 1994, the defendant/appellant approached him and expressed his desire to purchase a house plot in Ernakulam for constructing a house. On 04.03.1994, the plaintiff, defendant and their brothers Syriakkutty Pathrose and George K.Peter met in the family house and the defendant agreed to sell the plaint A and B schedule properties to the plaintiff. Total consideration fixed for plaint A schedule is `1,75,000/- and for plaint B schedule, it is `3,00,000/-. It is the further case that on 04.03.1994 the plaintiff had paid `75,000/- as part of the sale consideration for plaint A schedule to the defendant. He would further contend that the defendant on the same day transferred possession A.S.No.2 of 2000 3 of plaint A schedule property to the plaintiff. In the plaint, it is mentioned that on various dates, various payments were made by him to the defendant towards total sale price. Entire sale consideration was paid by the plaintiff in respect of plaint A schedule properties. As regards plaint B schedule properties, the plaintiff had paid `2,00,000/- as advance out of total sale consideration. In spite of repeated requests for execution of a document, the defendant did not do his duty and therefore the suit was filed. 3. Defendant filed a written statement contending that there was no agreement for sale in respect of plaint A schedule property. He admitted that there was an agreement for sale in respect of plaint B schedule property. The price for the plaint B schedule put forward by the plaintiff is incorrect. Further contention that possession of the plaint A schedule was delivered to the plaintiff by the defendant is also strongly denied. On 04.03.1994 or any other day there was no agreement as stated in the plaint. Plaint A schedule property still remains with the defendant in possession and he enjoys it by taking profits. Plaintiff has no right over the property. Suit is liable to be dismissed. 4. Exts.A1 to A5 were marked on the side of the plaintiff and Exts.B1 to B3 series on the side of the defendants. Four witnesses testified for the plaintiff and two for the defendant. A.S.No.2 of 2000 4 5. Trial court framed relevant issues for trial. On an over all evaluation of the evidence, the court below refused to grant a decree in respect of plaint B schedule property. In respect of plaint A schedule, the suit was decreed against the defendant and hence he is in appeal. 6. Heard the learned counsel for the appellant/defendant. The respondent/plaintiff was appearing in person. It is seen from the records that the appeal was heard and disposed by a learned single Judge as per judgment dated 28.03.2018. Subsequently the respondent/plaintiff filed a review petition complaining that the appeal was taken up for hearing during the absence of his counsel. He requested for a chance to hear the case on merits. Considering his plea, the judgment was reviewed by the learned single Judge on 27.06.2018. Thereafter the matter underwent various adjournments. On 14.12.2018 this Court passed the following order: _“Heard the learned counsel for the appellant in A.S.No.2 of 2000. A.S.No.166 of 2000 also arises from the same judgment and decree filed by the plaintiff in the suit as a 'party in person'. The matter comes up in the hearing list. It is submitted by the learned counsel for the appellant in A.S.No.2 of 2000 that once the matter was heard and judgment was pronounced by this Court. Later, a review_ A.S.No.2 of 2000 5 _petition was filed by the appellant in A.S.No.166 of 2000 (plaintiff). The judgment was reviewed and the matter was again posted for hearing. In order to avoid this contingency, the Registry shall issue a notice to the appellant in A.S.No.166 of 2000, intimating that the matter has come up in the hearing list and it will be his responsibility to monitor the posting of the cases. No further notices will be issued in these cases.”_ Despite serving a notice on the respondent/plaintiff, he did not enter appearance nor did he contest the case. Hence A.S.No.166 of 2000 was dismissed on 14.01.2019. 7. When this appeal was taken up today, there was no representation for the respondent/plaintiff nor did he appear before the court in spite of serving a notice. 8. Learned counsel for the appellant contended that the decree and judgment passed by the court below cannot be sustained on factual and legal grounds. It is pointed out that the court below wrongly entered a finding that the appellant/defendant had received `75,000/- towards the sale consideration of plaint A schedule property in addition to `1,70,000/admitted by the appellant in respect of plaint B schedule property. According to the learned counsel for the appellant, this finding is totally A.S.No.2 of 2000 6 erroneous and not supported by any evidence on record. I have been taken through the pleadings as well as the oral evidence in this case. It is pleaded in the plaint that on 04.03.1994 there was an understanding between the plaintiff and defendant, who are brothers, in the presence of their siblings that the defendant would sell plaint A and B schedule properties to the plaintiff for different amounts. It is also averred that the defendant had received advance amount on 04.03.1994 itself from the plaintiff towards the sale consideration. The defendant had produced Ext.B3 attendance register issued from the Catholic Syrian Bank Branch, New Delhi dated 01.08.1998, where he was working at that time, to show that on 04.03.1994 he was actually working in the bank at New Delhi. Relying on this document the court below doubted the case of reception of advance amount by the defendant from the plaintiff. However, it found that amounts were paid on some unspecified dates and therefore the defendant was liable to perform the obligations under the oral agreement. This finding is seriously challenged. 9. Mother of the parties was examined as PW2. It is brought out in evidence that she was hostile towards the defendant/appellant for some household reasons. It has also come out in evidence that she had filed complaints before the Chief Minister, State of Kerala and other authorities against the appellant. On going through the testimony of PW2, it is not A.S.No.2 of 2000 7 clear as to when the so called payments were made by the plaintiff to the defendant. As pointed out by the court below, her evidence could not relied on to hold that there was an agreement for sale struck between the plaintiff and defendant and various payments were made on different dates. 10. Regarding the testimony of PW3, learned counsel for the appellant/defendant pointed out that it is an admitted case that he was enmical towards the appellant and the enmity subsisted even at the time of deposing before the court below. In the cross-examination suggestions were made to show that PW3 was hostile towards the appellant. He was examined for the purpose of proving the possession of the plaintiff. Plaint A schedule property is a rubber plantation. PW3 is a rubber tapper. Merely relying on the testimony of PW3 the court below entered a finding that the defendant had transferred possession of the property to the plaintiff pursuant to an agreement for sale. In the absence of any reliable evidence to show that on 04.03.1994 the parties had entered into an oral contract for sale, the theory of handing over possession cannot stand by itself. 11. It is pointed out by the learned counsel for the appellant that the defendant had admitted that there was an agreement for sale of plaint B schedule property to the respondent/plaintiff, but it was not for the price shown in the plaint. However, the transaction did not go through for various reasons. Court below has dismissed the suit in respect of plaint B schedule A.S.No.2 of 2000 8 and though the dismissal was challenged in A.S.No.166 of 2000 by the respondent/plaintiff, after dismissal of the appeal, rejection of the claim in respect of plaint B schedule has become final. 12. It appears that the court below, though considered the oral evidence elaborately, failed to note the improbability in the case set up by the plaintiff regarding an oral agreement and subsequent payments said to have been made by him to the defendant. No records, like bank accounts or money orders, have been produced to show that payments were made as stated by the plaintiff. Although it can be remembered that the alleged transaction was between brothers, in the light of the present dispute, it becomes incumbent on the respondent to establish his case of striking an agreement between him and the defendant as stated in the plaint. 13. In the absence of any reliable evidence to uphold the oral agreement, court below went wrong in relying on the testimony of the witnesses that there was handing over of possession by the defendant to the plaintiff. 14. Relying on the decision reported in **Kamal Kumar v. Premlata Joshi and others (2019 (1) SCALE 203)** the learned counsel contended that the settled principle regarding grant of relief of specific performance was not considered by the court below. In paragraph 10 of the decision, the following propositions are made: A.S.No.2 of 2000 9 _“It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the Plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the Plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the Plaintiff against the Defendant in relation to suit property or it will cause any kind of hardship to the Defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the Plaintiff; and lastly, whether the Plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds.”_ On a reappraisal of the entire oral evidence and legal A.S.No.2 of 2000 10 principles, I am of the view that the court below went wrong in decreeing the suit. Therefore, the decree and judgment passed by the court below granting a relief of specific performance of an oral agreement which was not proved is hereby set aside. However, in order to do justice and equity between the parties, the appellant/defendant shall return `1,70,000/(Rupees one lakh and seventy thousand only) received by him from the plaintiff/respondent with 6% interest per annum from the date of suit till realisation. Parties are directed to suffer their costs. All pending interlocutory applications will stand closed. **A.HARIPRASAD, JUDGE.** ## **cks** A.S.No.2 of 2000 11 **A.Hariprasad, J.** **A.S.No.2 of 2000** ## **JUDGMENT** **31[st] January, 2019**