M. D. George v. Paily and Chinnamma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** ## **MONDAY,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940** ## **RFA.No. 88 of 2011** AGAINST THE JUDGMENT AND DECREE DATED 15.1.2010 IN O.S.NO. 141 OF 2006 OF THE SUB COURT, MUVATTUPUZHA |**APPELLANT/PLAINTIFF**<br>**:**| |---| |**M.D.GEORGE, AGED 58, S/O. DAVID,**| |**MADAPPILLY HOUSE, OORAKKADU KARA,**| |**KIZHAKKAMBALAM VILLAGE,KUNNATHUNAD TALUK, PIN-**| |**683561.**| ||**BY ADVS.**| |---|---| ||**SRI.P.N.RAMAKRISHNAN NAIR**| ||**SRI.P.VISWANATHAN (SR.)**| |**RESPONDENTS/DEFENDANTS**<br>**:**|| |**1**|**PAILY**| ||**AGED 65 YEARS, S/O. PAILY,**| ||**AGRICULTURIST,MATTAPPILLIL HOUSE,KAYANADU KARA,**| ||**MARADY,MEMMURI VILLAGE, OORAMANA.P.O,**| ||**MUVATTUPUZHA TALUK,PIN-686663.**| |**2**|**CHINNAMMA,AGED 57 YEARS, HOUSEWIFE**| ||**W/O.PAILY,MATTAPPILLIL HOUSE,KAYANAD KARA,,**| ||**MARADY,OORAMANA.P.O,MUVATTUPUZHA TALUK,PIN-**| ||**686663.**| ||**BY ADV.**| ||**SRI.PEEYUS A.KOTTAM**| **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19.11.2018, THE COURT ON 25.02.2019 DELIVERED THE FOLLOWING:** RFA 88/2011 2 ## **JUDGMENT** The appellant is the plaintiff in O.S.No. 141 of 2006 on the file of the Court of Subordinate Judge, Muvattupuzha. The respondents are the defendants. The suit for specific performance of contract was declined by the learned trial Judge,however a decree for return of the advance was allowed. Aggrieved by the same the plaintiff has come up with this appeal. For the sake of convenience, the parties shall hereinafter be referred to as the plaintiff and the defendants. 2. The facts relevant for disposal of this appeal in brief are as follows: The defendants are the owners of 26.30 Ares of land comprised in Survey No. 1094/1A, 12.14 Ares in Survey No. 1097/5B and 27.52 Ares (Total 65.96 ares)in Survey No. 1097/5A of Memuri village. On 23.3.2005, the plaintiff and defendants entered into Ext.A1 sale agreement RFA 88/2011 3 for sale of the property for a total sale consideration of Rs.6000/- per cent. The plaintiff paid an amount of Rs. 2 lakhs on the date of the agreement and thereafter an amount of Rs.1,15,000/- was paid on 17.8.2005. Thus in total an amount of Rs.3,15,000 was paid as advance towards the sale consideration. The period fixed was six months from the date of agreement. Though the plaintiff was willing to purchase the property by paying the balance sale consideration, the defendants did not perform their part of contract by furnishing the documents of the property and thereby the plaintiff issued a lawyer notice on 17.10.2006, but there was no response from the side of the defendants and hence the suit was filed for specific performance of Ext.A1 sale agreement, in the alternative to return the advance amount with 12% interest. 3. The defendants filed written statement admitting the execution of Ext.A1 agreement of the plaint schedule property. The total extent of the property as per the sale RFA 88/2011 4 deed is only 1 acre 63 cents, but the total extent possessed and enjoyed by the defendants within the common boundary was 2 acres of land and it was re-planted with rubber trees. The southern portion of the property is a rocky land. The plaintiff in fact approached the defendants for starting a granite quarry and metal crusher unit and when he expressed his desire, the entire extent of 2 acres in the possession of the defendants was shown to him and thereafter Ext.A1 agreement was executed. On measurement, it was found that the total extent lying within the boundary was 2 acres and 1½ cents. The defendants want to sell the entire extent lying as a single unit and not the 1 acre 63 cents. But the plaintiff was interested only to purchase the registered land and demanded to reduce the price of the unregistered land for which the defendants were not amenable. As the plaintiff is not interested to purchase the entire property, the defendants are not bound to execute the document. RFA 88/2011 5 4. The trial court framed the necessary issues in the suit. PWs.1 and 2 were examined and Exts.A1 and A2 were marked on the side of the plaintiff and DWs.1 and 2 were examined on the side of the defendants. On appreciation of the evidence adduced by the parties, the learned trial judge declined the prayer for specific performance, but decreed the suit for realization of the amount paid by the plaintiff to the defendants with interest. 5. Heard Sri P. Viswanathan,the learned counsel for the appellant/plaintiff and Sri Peeyus A.Kottam, learned counsel appearing for the respondents/defendants . 6. Ext.A1 sale agreement dated 23.3.2005 is not in dispute. The agreement pertains to a land having an extent of 65.96 Ares (1 Acre 63 cents) in different survey numbers. The sale consideration was fixed as 6000/- per cent. Admittedly in total Rs.3,15,000/- was paid as advance, Though the total extent was only 1 acre 63 cents as per Ext.A1 the defendants' case is that they are holding RFA 88/2011 6 possession of more extent of land within the same boundaries and as they are having an extent of 2 acres and 1 ½ cents their intention is to sell the entire extent for the total sale consideration of Rs.6000/- per cent. It is clear from the records that the defendants are having title over the property having only an extent of 65.96 Ares and for the rest they have only possession without title but they wanted to sell the entire extent for which the plaintiff was not amenable and hence the registration of the document was not materialized. When PW1 was in the box, he had deposed that he had 60 cents of land just 100 metres away from the plaint schedule property and he has been in possession and enjoyment of the land for more than 10 years. Therefore, he may be a person having acquaintance with the locality but his case is that he was not aware about the unregistered holding when he entered into the agreement for sale of the property. PW2 is the witness who supported his case. According to him as the property was RFA 88/2011 7 lying as one single unit within the boundaries and that too without any separation from the registered holdings, the plaintiff had entered into the contract taking into account that it is lying as one unit under valid title. From the records it is clear that plaintiff is ready and willing to pay sale consideration for the registered holding of 1 Acre 63 cents. But, according to him, the defendants had played fraud on him by not disclosing the real facts. Still he is ready to purchase the entire property by paying sale consideration for 1 Acre 63 cents. So the stand taken by the plaintiff is that he is not bound to pay any amount to the Government puramboke land and the intention of the defendants to the get sale consideration for the entire extent for which they have no right is the ground to refuse payment at the rate of 6000/- per cent to the entire extent found on measurement. But the defendants have a case that if they sell only the registered extent, they will not get access to enter into the remaining land in their continuous RFA 88/2011 8 possession, which is lying on the back side of the total extent of land and thus they will be deprived of their access to the property. The thrust of the case set up by the plaintiff was that he wants the sale deed for the entire extent lying within the boundaries, but could pay sale consideration only for the registered land having an extent of 1 Acre 63 cents. On the other hand the defendants want sale consideration for the entire extent found on measurement. 7. Here, the court below has rightly held that as a court of law the defendants cannot be permitted to execute the sale deed with respect to the Government puramboke land in favour of the plaintiff, though it was found that the plaintiff was ready and willing to perform his part of the contract. Of course, to get a decree for specific performance readiness and willingness on the part of the plaintiff is a condition precedent. It is also well settled that the decree for specific performance can be declined by exercising the RFA 88/2011 9 discretion taking into consideration of the hardships that would be caused to the defendants due to the execution of the document. As mentioned earlier of course the defendants have a case that if the registered property alone is sold, in execution of the agreement, they will be deprived of their access to the unregistered holdings which is lying on the back side. Considering the nature and lie of the property and other attending circumstances involved, though the plaintiff is willing to get the sale deed executed for the registered holdings, it is not possible to pass a decree in his favour due to the peculiar facts involved. Moreover as it is evident that hardship will be caused to the defendants, if the sale deed is executed in favour of the plaintiff,a decree for specific performance can be declined. 8. Reliance was placed on the decision in **Sankar Singh v. Narinder Singh & Others [ (2014) 16 SCC 662]** by the plaintiff to support his case that relinquishment of part of agreement was possible and so he is entitled to RFA 88/2011 10 get the document for the registered holding as he is ready and willing to perform his part of the contract. But the peculiar facts and circumstances glaring from the facts of the case, I think that this is not a fit case for granting specific performance of contract mainly because of the inconvenience/hardship that will be caused to the defendants who are holding unregistered land also along with the registered holding within one boundary and that too re-planted with rubber trees. If a decree for specific performance is granted, definitely the defendants will not able to enjoy the possession of the unregistered holdings. It is also not possible for this Court to direct the plaintiff to pay Rs.6000/- per cent for the entire holdings in the possession of the defendants pursuant to Ext.A1 sale agreement. Such being the case, the finding of the court below that the defendants are bound to return the advance amount paid by the plaintiff with reasonable interest appears to be more appropriate and reasonable . RFA 88/2011 11 9. Hence, I find that this appeal filed for specific performance is only to be dismissed. I am confirming the judgment and decree of the court below directing to return the advance amount with interest at the rate of 12% per annum. Accordingly, the appeal is dismissed. The parties shall bear their respective costs. 25.02.2019 Sd/- ## **SHIRCY V., JUDGE** **ks** RFA 88/2011 12