The burden of proof lies on the party seeking relief, and the execution of the agreement must be proven with reliable evidence.

JUDGMENT :

The plaintiff in O.S. No.46/2013 on the files of the Court of the Subordinate Judge, Tirur, has preferred this appeal under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 [hereinafter referred as ‘CPC’ for short], challenging the decree and judgment in the above case dated 09.08.2021, arraying additional defendant Nos.2 to 6, who are the legal representatives of the deceased original defendant as respondents.

2. Heard the learned counsel for appellant and the learned counsel appearing for the respondents. Perused the verdict under challenge, the records of the trial court and the decisions placed by both sides.

3. Parties in this appeal shall be referred with reference to their status before the trial court, hereafter.

4. Short facts: The plaintiff approached the trial court and sought the relief of specific performance of Ext.A1 agreement dated 20.07.2010, alleged to be executed between the plaintiff and defendant, agreeing to sell the plaint schedule property, having an extent of 23 cents at the rate of Rs.1,00,000/- per cent. The case advanced by the plaintiff in the plaint is that, out of the total consideration of Rs.23,00,000/-, Rs.19,00,000/- was paid as advance on the date of execution of Ext.A1 itself. Thereafter, when the plaintiff attempted to contact the defendant to execute the sale deed on accepting balance consideration, the attempt was failed, since by the time, the defendant went abroad. According to the plaintiff, he has been always ready and willing to execute the sale deed. Accordingly, the plaintiff approached the trial court and sought the relief of execution of the agreement or in the alternative, to get back the advance amount. During the pendency of the suit, as per the order in I.A. No.423/2019 dated 25.05.2019, the plaint was amended deleting the ‘B’ prayer for getting back the advance amount and the suit was proceeded with the main relief of specific performance of contract.

5. The original defendant filed written statement and the contention raised in the written statement in precise is that, Ext.A1 document is inadmissible in evidence for want of registration. That apart, he never executed Ext.A1, as contended by the plaintiff. The contention raised by the defendant further is that, when he faced financial stringency, he had approached Sri.Siddique, the father of the plaintiff, who is a known money lender, through one A.P. Balakrishnan, for lending an amount of Rs.4,65,000/- on 20.07.2010 with assurance to repay the same on 06.12.2010. Accordingly, he borrowed Rs.4,65,000/- from the father of the plaintiff and at the time of borrowing the said amount, two blank singed cheques of South Indian Bank, Parappanangadi Branch and four blank signed cheques of MDC Bank, Parappanangadi Branch and two blank signed stamp papers and six blank singed white papers and copy of the title deed of the property belonging to the defendant were entrusted to the Sri.Siddique. The defendant deposited Rs.6,00,000/- in MDC Bank and Sri.Siddique withdrew the amount by using one among the cheques of MDC Bank. According to the defendant, the blank signed stamp papers and blank signed white papers entrusted to Sri.Siddique, while lending money to the defendant were misused for the purpose of creating Ext.A1. Therefore, Ext.A1 is a fabricated document and the plaintiff is not entitled to get any of the relief sought for in the suit is the contention raised by the defendant.

6. The trial court raised necessary issues and tried the matter. PWs 1 to 3 were examined and Exts.A1 to A4 were marked on the side of the plaintiff. DWs 1 and 2 were examined on the side of the defendant. Apart from that, Exts.X1 and X2 were also marked as third party exhibits.

7. After evaluating the evidence, the trial court found that the execution of Ext.A1 is not proved and the trial court given much emphasis on the evidence of the witnesses, apart from considering the unfathomable gap between the signatures of the parti