K.P. Balachandran, J.

The defendant in O.S.699 of 1994 on the file of the Sub Court, North Parur is the appellant. The respondent instituted the said suit against him for recovery of advance amount paid and that was decreed by the Subordinate Judge. Hence this appeal.

2. The respondent alleged in the plaint inter alia that he entered into an agreement with the defendant on 15.3.1986 for purchase from him of 1984 model stage carriage bus bearing Registration No. KBE 1153 for a consideration of Rs.4,50,000/- paying advance of Rs.1,50,000/-. Under the agreement he was put in possession of the vehicle and he was permitted to operate service. Out of the balance consideration the plaintiff was to deposit an amount of Rs.2,10,000/- at the Ernakulam Branch of the Canara Bank at the monthly rate of Rs.3,500/- and the balance of Rs.90,000/- was to be paid to the defendant before 15.6.1986. The agreement was that at that time the sale letter and other relevant documents would be handed over to him. The plaintiff operated service of the bus for a period of three months. On 16.6.1986 the defendant forcibly took possession of the bus. Despite intervention of mediators no settlement was arrived at. The defendant is retaining possession of the bus. The defendant was not amenable to perform his obligations under the agreement. The plaintiff is therefore entitled to get back the advance amount paid under the agreement. It is further alleged that the defendant had not handed over any sale letter or any other document and that therefore the defendant is still the owner of the bus.

3. The appellant/defendant resisted the suit. According to him there was no agreement as alleged and no advance as alleged had been paid to him. The plaintiff had not been entrusted to remit amounts to sell the bus to the plaintiff. It is false to say that the defendant took possession of the bus from the plaintiff forcibly. He never agreed to repay any amount to the plaintiff. The plaintiff has no cause of action. The suit is not maintainable. The claim is barred by limitation. The plaintiff is not entitled either to any amount of the injunction prayed for. The alleged agreement is a forged one. The plaintiff and defendant had property transaction and the plaintiff is acquainted with the signature of the defendant. There was dispute between the plaintiff and the defendant regarding the transaction. The suit is ill conceived and has to be dismissed with costs.

4. The court below raised necessary issues for trial and considering the case of the parties on the pleadings and the evidence adduced at trial which consisted of oral evidence of PWs 1 to 3 and documentary evidence Exts. A1 to A5 decreed the suit. Hence the appeal by the aggrieved defendant.

5. It is vehemently contended by the counsel for the appellant that the suit agreement is not genuine; that however on the allegations in the plaint a suit for return of advance amount is not maintainable and that the suit should have been dismissed with costs considering the false nature of the claim advanced.

6. The point that arises for consideration is as to whether the trial court was correct in decreeing the suit for return of advance amount on the strength of Ext.A1 agreement.

7. The Point. The plaintiff as PW1 has given evidence in terms of the plaint averments. The suit agreement which is a Photostat copy of the alleged agreement was being marked as Ext.A1 subject to objection. What the plaintiff deposed in relation to Ext.A1 is that the original of the agreement executed on 15.3.1986 had not been given to him and that he is having a Photostat copy thereof. Apart from that he has no explanation as to how he came into possession of such a Photostat copy. All the same it is his case that the stamp paper for execution of the original of Ext.A1 was purchased by him from vendor K.K. Divakaran. He has also admitted in cross examination that in the normal course, original of Ext.A1 ought to be in his possession as