Sanni v. Sarojini Amma and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 AS.No. 470 of 2001(D) --------------------OS.135/1994 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT/PLAINTIFF ----------------------------------- SANNI, MAVALATHU VEEDU CHERUVALLIYMUKKU CHITTATTINKARA DESOM, KIZHUVILAM VILLAGE REP BY THE POWER OF ATTORNEY HOLDER GOPI VILAYIL VEEDU, KODUMAN, CHITTATTINKARA DESOM BY ADV. SRI.G.UNNIKRISHNAN SMT.K.KUSUMAM SRI.M.LOHITHAN RESPONDENTS/DEFENDANTS ------------------------------------------ 1. SAROJINI AMMA, KALLUVILA VEEDU ATTUKAL, IRANIMUTTAM MURI, MANACADU VILLAGE 2. RAJKUMAR, -DO- 3. THUSHARA -DO 4. MADHAVAN PILLAI, KALIVILAKATHU VEEDU KIZHIVILAM VILLAGE, KIZHIVILAM DESOM ADV. SRI.G.S.REGHUNATH FOR R4 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02.11.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.BHAVADASAN, J.** ------------------------------------- AS No.470 of 2001 ------------------------------------Dated this the 2[nd] day of November 2011 ## Judgment The plaintiff, who was non-suited by the court below in a suit for specific performance, is the appellant. 2. On the basis of Ext.A3 document dated 02.12.1991, the plaintiff sued for specific performance. 33½ cents of property originally belonged to one Ramakrishna Pillai. On his death, it devolved on his legal representatives i.e., defendants 1 to 3. According to the plaintiff, defendants 1 to 3 had agreed to sell the entire 33½ cents of property to him. However, by Ext.A2, only 23½ cents of property was sold to them because at that point of time, 10 cents of property was involved in a litigation. On the date of execution of Ext.A2 itself, Ext.A3 was executed, whereby defendants 1 to 3 undertook to assign the remaining 10 cents also to the plaintiff after the litigation was over. Since the defendants did not assign the AS 470/01 2 said remaining 10 cents to the plaintiff, the suit was laid. 3. Defendants 1 to 3 resisted the suit disputing the genuineness of Ext.A3. According to them, in all probability, that would have been a concocted and manipulated document by the plaintiff. They denied of having executed any such agreement in favour of the plaintiff and prayed for dismissal of the suit. 4. The fourth defendant resisted the suit by pointing out that there is no bona fide in the claim made by the plaintiff. Prior to the death of Ramakrishna Pillai, according to him, Ramakrishna Pillai had entered into an agreement for sale on 18.4.1991 undertaking to assign 10 cents of property out of the 33½ cents of property to him. Before the sale deed could actually be executed, Ramakrishna Pillai passed away and though demand was made to his legal representatives to execute the deed, they did not do so. That resulted in a suit being filed. The suit was compromised and 10 cents of property was assigned to the fourth defendant. It is pointed out that the fourth AS 470/01 3 defendant was unaware of the alleged agreement between the plaintiff and the defendants 1 to 3 by which the entire 33.5 cents of property was agreed to be assigned to the plaintiff. According to him, in all probability, the suit is a collusive one between defendants 1 to 3 and the plaintiff. On the above grounds, the fourth defendant prayed for dismissal of the suit. 5. On the above pleadings, issues were raised. Evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendants had DW1 examined and Ext.B1 marked. Ext.C1 is the commissioner's report. 6. The trial court, on an evaluation of the evidence, found that the plaintiff had failed to prove that Ext.A3 is a genuine document and therefore, dismissed the suit. The said finding is assailed in this appeal. 7. The only question that arises for consideration in this appeal is whether the court below is justified in holding that Ext.A3 document is not a genuine one. It is AS 470/01 4 admitted that the 33½ cents of property belonged to Ramakrishna Pillai. According to the plaintiff, the entire property was sought to be assigned to him, but Ext.A2 took in only 23½ cents because the remaining 10 cents was involved in a litigation. Even though defendants 1 to 3 had filed a written statement, they did not further take part in the proceedings. The fourth defendant contended that in pursuance of the agreement for sale of 10 cents between him and late Ramakrishna Pillai, he had laid a suit and had obtained assignment of the said 10 cents of land from defendants 1 to 3. The learned counsel for the appellant pointed out that the court below has taken note of insignificant factors to come to the conclusion that ExtA1 is not a genuine document. 8. The reason that no advance is paid is not a ground at all to disbelieve Ext.A3. It is also pointed out that since Ext.A3 is not supported by any consideration, it cannot be believed, is not a ground to suspect Ext.A3. The learned counsel went on to point out that the case of AS 470/01 5 defendants 1 to 3 was that Ext.A3 was a manipulated document and if that be so, it is for them to establish the said fact. Having admitted their signatures on the said document, it was for them to explain, under what circumstances they happened to sign on the document. It is also significant, according to the learned counsel that none among the defendants 1 to 3 mounted the box and if that be so, going by the dictum laid down in the decision in **Vidyadhar v. Manikrao** (1999 KHC 1091), an adverse inference needs to be drawn against them. None of the reasons given by the court below to non-suit the plaintiff, according to the learned counsel, is justifiable in law. 9. The learned counsel for the contesting respondents, on the other hand, pointed out that in all probability, Ext.A3 was entered into to defeat the claim of the fourth defendant and there is no bona fide in the claim made by the plaintiff at all. The learned counsel went to point out that even though an agreement for sale of the entire 33½ cents of land is urged by the plaintiff in the suit, AS 470/01 6 there is no whisper about the agreement either in Ext.A2 or in the evidence furnished by the plaintiff. A reading of Ext.A2 would clearly show that what was dealt with in it was 23½ cents. A reference to the evidence of PW2 clearly shows that at the time of execution of Ext.A2, the property was measured and 23½ cents was demarcated separately and possession was given to him. The learned counsel also pointed out that Ext.A3 is not supported by consideration. According to the learned counsel, apart from the reasons given by the lower court, the above facts also cast serious doubts about the genuineness of Ext.A3. 10. One may recollect that the case put forward by the plaintiff is that he was put in possession of 23½ cents of land pursuant to Ext.A3 i.e., Ext.A2 happened to be executed only in respect of 23½ cents of property since the balance 10 cents was involved in a litigation. It is clear from the evidence that the plaintiff was aware of the fact that the litigation with reference to the 10 cents was between defendants 1 to 3 and the fourth defendant. One AS 470/01 7 would have expected the plaintiff to enquire about the nature of dispute that was pending between defendants 1 to 3 and the fourth defendant. It is significant to notice that in Ext.A2, there is no mention of any previous agreement at all. A reading of Ext.A2 will reveal that only 23½ out of 33½ cents was assigned to defendants 1 to 3 consequent on the death of Ramakrishna Pillai. There is nothing in Ext.A2 which will indicate that there was any prior agreement for sale in respect of the 33½ cents and that the plaintiff was put in possession of the entire property. It is also important to notice that Ext.A3 is executed on the same day but the entry regarding date is conspicuously absent in it. 11. The lower court has found that there were significant contradictions and inconsistencies between the evidence of PWs 1 and 2. According to the learned counsel for the appellant, those inconsistencies do not have any relevance. Even assuming that the inconsistencies noticed by the court below are not significant enough to doubt the veracity of the materials, it would show that the claim put AS 470/01 8 forward by the plaintiff is doubtful. PWs 1 and 2 were examined to prove the agreement. Both say that they were present at the time of execution of both the documents. Significantly, neither of them is a witness to the document. 12. One may now recall that in the written statement defendants 1 to 3 had specifically disputed the execution of Ext.A3. Another aspect is that while PW1 would say that some amount was paid as advance while executing Ext.A3, PW2 says otherwise. Another fact disclosed from the evidence of PW2 is that he, in no less terms say that when Ext.A2 was executed, the property was measured and 23½ cents of property was demarcated from the balance 10 cents. There is a well demarcated boundary between the 23½ cents and the 10 cents. It is also the claim of the plaintiff that he was put in possession of the entire 33½ cents of land. It is significant to notice that Ext.B1 document is in favour of the fourth defendant assigning 10 cents of land. That is a sale deed covering 10 cents of land out of the 33 ½ cents. Obviously, if the claim AS 470/01 9 of the plaintiff that there was an agreement for sale of the entire extent of his property, that must be prior to the agreement for sale in favour of the fourth defendant. The plaintiff has no such case at all. It will be worthwhile to note that a suit was laid by the fourth defendant based on an agreement for sale between him and late Ramakrishna Pillai. It was while the said suit was pending that Ext.A3 is entered into. The case of the plaintiff was that there was a prior agreement for sale. Apart from want of evidence, it also lacks consideration. If the plaintiff had to succeed, his agreement for sale must have been before the agreement for sale with the fourth defendant because at the time when the plaintiff entered into Ext.A3, he was aware of the suit filed by the fourth defendant. Obviously, he would have enquired and found that it related to the suit property. The plaintiff has no case that the agreement to sell the entire 33½ cents was with Ramakrishna Pillai. Defendants 1 to 3 could not have entered into an agreement for sale of 33½ cents because at the time of death of Ramakrishna Pillai, 10 AS 470/01 the legal heirs had only 23½ cents since 10 cents was already agreed to be sold to the fourth defendant. Therefore, even if Ext.A3 must have been entered not after the agreement for sale with the fourth defendant which culminated in the suit and subsequent compromise, Ext.A3 can be only subject to the claim of the fourth defendant. It must be these disturbing facts which prompted the plaintiff not to give details regarding the agreement for sale of the entire 33½ cents and he being put in possession of the entire property. Therefore, it follows that the finding of the court below that the plaintiff is not entitled to any reliefs as prayed for by him, is fully justified, though for other reasons. It is clearly shown that the claim made by the plaintiff is unfounded. The appeal is without any merits and it is accordingly dismissed. No order as to costs. ## **P.Bhavadasan, Judge** sta AS 470/01 11 AS 470/01 12