Kuriyath Joy S/O Thomas and Others v Kalappurakkal Sosamma D/O Yohannan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 25TH DAY OF MAY 2015/4TH JYAISHTA, 1937** ## **RSA.No. 371 of 2003 (C )** **-----------------------AGAINST THE JUDGMENT & DECREE IN AS 47/1999 OF ADDL.SUB COURT, THALASSERY DATED 07-10-2002 AGAINST THE JUDGMENT & DECREE IN OS 328/1997 OF MUNSIFF COURT, KUTHUPARAMBA DATED 31/03/1999** **-------------------** ## **APPELLANTS/RESPONDENTS/DEFENDANTS :** **--------------------------------------------------------------------** **1. KURIYATH JOY S/O. THOMAS, AGED 43 YEARS AGRICULTURIST, VELLARVALLY AMSOM THIRUVONAPRAM DESOM P.O. PERAVOOR, THALASSERY TALUK.** **2. MANIKKATHAZHA ALFONZA FATHER'S NAME NOT KNOWN RESIDING AT VELLARVALLY AMSOM DESOM IMPLEADED AS NECESSARY PARTY AS PER ORDER ON I.A. 2304/2001 AND AMENDED AS PER ORDER ON IA NO. 2305/2001 DATED 4.1.2002.** ## ***SUPPLEMENTAL APPELLANT NO. 3 IS IMPLEADED** **---------------------------------------------------------------------------** ***ADDL.A3. KUNNUMBRATH PUTHIYA PURAYIL ABDUL RAZAK AGED 39 YEARS, S/O. MAMMU HAJI P.O. KAKKAYANGAD, MUZHAKKUNNU AMSOM PALA DESOM, KANNUR DISTRICT, PIN – 670 673 REPRESENTED BY THE POWER OF ATTORNEY HOLDER OMBAN ABDULKHADER, AGED 56 YEARS, S/O. MOIDEEN HAJI “SHAFEENAS' OF MUZHAKUNNU AMSOM, AVILAM VILAKODE DESOM IN THALASSERY TALUK P.O. VILAKODE, KANNUR DISTRICT.** ***SUPPLEMENTAL APPELLANT NO. 3 IS IMPLEADED AS PER THE ORDER DATED 9.10.14 IN IA NO. 2353/2014.** **BY ADV. SRI.P.U.SHAILAJAN** **...2/-** **RSA.No. 371 of 2003 ( ) -2-** ## **RESPONDENT/APPELLANT/PLAINTIFF :** **-----------------------------------------------------------** ## ***KALAPPURAKKAL SOSAMMA** **D/O. YOHANNAN, AGED 62 YEARS RETIRED TEACHER, MUZHAKKUNNU AMSOM DESOM THALASSERY TALUK (*DIED, LR'S ARE IMPLEADED)** ## ***ADDL. R2 TO R4 IMPLEADED** **--------------------------------------------** ***ADDL.R2. ABHI K. JACOB** **S/O. CHACKO, AGED 37 YEARS KALAPPURATH HOUSE P.O. KAKKAYANGAD, MUZHAKKUNNU AMSOM PALA DESOM, THALASSERI TALUK KANNUR DISTRICT.** - ***ADDL.R3. SHIBI K. JACOB** **S/O. CHACKO, AGED 33 YEARS KALAPPURATH HOUSE P.O. KAKKAYANGAD, MUZHAKKUNNU AMSOM PALA DESOM, THALASSERI TALUK KANNUR DISTRICT.** - ***ADDL.R4. K.A. CHACKO** **AGED 76 YEARS, S/O. ABRAHAM KALAPPURATH HOUSE, MUZHAKKUNNU AMSOM PALA DESOM, THALASSERI TALUK KANNUR DISTRICT.** ***ARE IMPLEADED AS ADDL. RESPONDENTS R2 TO R4 BEING LR'S OF DECEASED SOLE RESPONDENT AS PER ORDER DATED 15/11/12 IN IA NO. 2559/12.** **R2 TO R4 BY ADVS. SRI.K.R.AVINASH (KUNNATH)** **SMT. GRACY PAULOSE** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2015, THE COURT ON 25/05/2015 DELIVERED THE FOLLOWING:** **Mn** **...3/-** **RSA.No. 371 of 2003 ( )** ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** **ANNEXURE I IN ASSIGNMENT DEED 2016/2002 BEFORE THE S.R.O., IA NO. 2353/2014 PERAVOOR DATED 25.9.2002.** **ANNEXURE I IN : POWER OF ATTORNEY DEED EXECUTED BY IA NO. 2354/2014 SRI. KUNNAMBRATH PUTHIYA PURAYIL ABDUL RAZAK IN FAVOUR OF OMABAN ABDULKHADER DATED 14.6.2013.** **ANNEXURE II IN ASSIGNMENT DEED 2017/2002 BEFORE THE S.R.O., IA NO. 2353/2014 PERAVOOR DATED 25.9.2002. ANNEXURE III IN DOCUMENT NO. 817/2004 OF S.R.O., PERAVOOR DATED IA NO. 2353/2014 4.4.2004. ANNEXURE IV IN DOCUMENT NO. 4419/2011 OF S.R.O., PERAVOOR DATED IA NO. 2353/2014 2.11.2011. ANNEXURE V IN DOCUMENT NO. 4080/2012 OF S.R.O., PERAVOOR DATED IA NO. 2353/2014 9.11.2012.** ## **RESPONDENT'S ANNEXURES : NIL** **//TRUE COPY//** **P.A. TO JUDGE Mn** ## **A.V.RAMAKRISHNA PILLAI, J ----------------------------------------------R.S.A.No.158 of 2010 -----------------------------------------------** Dated this the 15[th] day of May, 2015 ## **JUDGMENT** The defendants in O.S.No.328/97 on the files of the Munsiff's Court, Kuthuparamba, who in turn were the respondents in A.S.No.47/99 on the files of Additional Sub Court, Tellicherry, are in appeal. 2. The respondent/plaintiff approached the trial court with the suit for specific performance on the basis of a compromise in respect of the plaint schedule property. It was alleged that there was an earlier suit as O.S.No.268/94 filed by the plaintiff in the Munsiff's Court, Kuthuparamba in respect of the same property for permanent prohibitory injunction against the first plaintiff herein and others to restrain them from trespassing into the property or interfering with the peaceful possession and enjoyment of plaintiff. The suit was compromised. As per Ext.B12, by which plaintiff and others agreed that the first defendant would execute the sale deed in respect of the plaint schedule property in favour of the plaintiff, on _R.S.A.No.158 of 2010 2_ payment of Rs.90,000/-. The amount was payable by the plaintiff on 30.5.1997, when the sale deed has to be registered. The compromise was referred and the suit was dismissed. 3. The plaintiff alleges that the 1[st] defendant has refused to execute the assignment deed as agreed to in Ext.B12 agreement. She further alleges that on 30.5.97 she went to the Peravoor Sub Registry Office for execution of the registration of the sale deed in compliance with the compromise and the 1[st] defendant refused to come to the Sub Registry Office and that an injunction has also been obtained against the 1[st] defendant in O.S.No.211/97 on the file of the Munsiff's Court, Kuthuparamba. The plaintiff further alleges that she was ready and willing to perform her part on the contract. The defendant refused to perform his part on the contract. She had made claim for compensation to the tune of Rs.18,530/- as damages. 4. The 1[st] defendant contended that the plaintiff was not ready and willing to execute the document as per _R.S.A.No.158 of 2010_ _3_ the contract and that she did not earn up with the money and registration could not taken place. 5. The trial court raise proper issues for trial. At the trial, PWs.1 to 3 as well as DWs.1 and 2 were examined. Exts.A1 to A8, Exts.B1 to B11 and Exts.C1 to C9 were marked. The trial court after considering the evidence, dismissed the suit. The plaintiff took the matter in appeal before the lower appellate court, which after the reappreciation of evidence, allowed the appeal in part and decree directing the 1[st] defendant to assign the plaint schedule property on deposit of Rs.90,000/- before the trial court with in a time frame and the 1[st] defendant was directed to put the appellant in possession of the property in pursuant to such assignment. Though, the plaintiff had sought for a set off Rs.18,530/- against the sale consideration. The claim was negatived by the lower appellate court. It is against this judgment, this appeal has been preferred. 6. I have heard Mr.P.U.Shailajan, learned counsel for the appellant and Mr.Abdul Raouf, the learned _R.S.A.No.158 of 2010_ _4_ counsel for the respondent. 7. It was on account of the failure on the part of the plaintiff that the sale could not be taken place. It was argued that the plaintiff was not ready with the money on 30.5.97. It was argued in view of the demand for a set off for Rs.18,530 claimed to be the damages said to have been committed in the property after the compromise in O.S.No.268/94, which was not in the part of the compromise. The lower appellate court ought to have found that the plaintiff was not ready and willing to perform her part. 8. Though much was argued regarding the circumstances which lead to Ext.B12 compromise, it is quite unnecessary to go into those questions at this point of time as both parties would admit that there was such a compromise. It was on the basis of Ext.B12 that this present suit has been filed. The date fixed for performance of the agreement as per Ext.B12 is 30.5.97. The plaintiff as well as the defendants claimed that they were at the Sub Registry Office on that date. As rightly _R.S.A.No.158 of 2010 5_ pointed out by the lower appellate court, this would given an indication that the parties were of the view that the agreement had to be carried on that day itself. As per Ext.B12, admittedly, an amount of Rs.19,000/- had to be paid by the plaintiff for getting the deed executed in her favour. Though, she claimed a set off Rs.18,530/-. The same was neglected by the lower appellate court. The lower appellate court relied on the evidence of PW.2, the scribe, who was asked to prepare the deed. That witness was confronted with Ext.A8, was a note prepared by him in which it was clearly stated that he received Rs.9,000/from the plaintiff for the purchase of stamp papers. Ext.A8 was admitted by DW2 also. In Ext.A8, it is stated that the plaintiff and the defendant were at his office of DW2 and the plaintiff had given Rs.9,000/- to him for the purchase of stamp papers. The lower appellate court observed that the quarrel between the parties as per the evidence of DW2 was non account of the failure of the plaintiff to ready money but because the defendant was not ready to assign the property to a person other than the plaintiff. _R.S.A.No.158 of 2010 6_ Therefore, as per the case put forwarded by the defendant that the plaintiff was not ready and willing to get the property assign goes. Definite reasons are stated by the lower appellate court in disagreeing the findings of the trial court as these findings are purely on questions of law, this Court cannot reverse the said finding. 9. It was argued by the learned counsel for the appellant inviting my attention to **Saradamani Kandappan v. Rajalakshmi** [2011 (3) KLT SN 43 (C.No.43)SC] that the lower appellate courts could not be exercised discretion for granting the decree in favour of the plaintiff as the plaintiff has not taken steps for the completion of the transaction. But, from the circumstances pointed out on above, the lower courts as come to the conclusion that the plaintiff was ready to get the assignment deed in her favour and she was present in the Sub Registry Office. It is come out in evidence that the execution did not take place on account of some other issues. 10. On a consideration of the materials now _R.S.A.No.158 of 2010 7_ placed on record, this Court is on the definite view that no substantial question of law has been wrongly decided by the lower appellate court, calling for an interference by this Court. In the result, the appeal fails and accordingly dismissed. **A.V.RAMAKRISHNA PILLAI JUDGE** vs