J U D G M E N T

Plaintiffs in O.S.No.326/2008 on the files of Munsiff Court, Muvattupuzha are the appellants and they impugn the decree and judgment in the above case dated 23.11.2012 as well as the decree and judgment in A.S.No.13/2013 dated 07.03.2019 on the files of the Sub Court, Muvattupuzha. The respondents herein are the defendants and their legal heirs.

2. Heard the learned counsel for the plaintiffs/appellants as well as the learned counsel appearing for the defendants/respondents. Perused the records.

3. I shall refer the parties in this appeal as `plaintiffs’

and `defendants’ referring their status before the trial court, hereafter for easy reference.

4. The case put up by the plaintiffs before the trial court was that the plaintiffs as well as the defendants are the co- owners of the plaint schedule property. It is alleged that as per sale deed Nos.6607/2000 and 6608/2000 of Kothamangalam SRO, the plaintiffs and two others, viz. Xavier Paul @ Jomy and one Varghese, together got 50% undivided share in the plaint schedule property. The 1st defendant has 25% of the undivided share and defendants 2 to 9 are having 25% shares over the plaint schedule property. In the sale deeds it was stipulated that the defendants alone will have the right to construct building above the third floor of the proposed multi-storied building. The ground floor of the building was constructed and it was partitioned among the co- owners as per partition deed No.4235/2002. Thereafter the co- owners executed two agreements on 16.10.2002 and 17.10.2002. As per the unregistered agreement dated 16.10.2002, it was agreed that on completion of the first floor of the building, the second party/1st defendant and third party/ defendants 2 to 9 would pay Rs.3,18,750/- and on completion of second floor of the building they would pay Rs.1,06,250/- to the first party, the plaintiffs/Xavier and Varghese. Further it was agreed that the first and second floor after completion or within 3 months on completion of each floor the second party would pay Rs.1 lakh each to the first and third party.

5. As per the registered agreement, the first party will construct the first and second floors of the building by spending their own money. They will sell the building and divide the sale proceeds in the following ratio. 1st party-50%, 2nd party-25% and 3rd party-25%. The last date for completion of construction was fixed as 31.03.2006. It was further provided in the agreement that if the construction could not be completed in time, the plaintiffs will not have right to continue with the construction or demand any extension of time and it will be presumed that the plaintiffs have voluntarily withdrawn from the agreement. In the event of any breach of the agreement, the defendants will complete the construction and appropriate the same at their will and pleasure.

6. In the agreements it is stated further that the plaintiffs need construct the second floor only after disposing the first floor or partitioning the same in between the parties. The plaintiffs have constructed the ground floor and first floor of the building within the stipulated time. Since the completed rooms could not be disposed of in time, it were partitioned between the parties as per partition deed No.4862/2005 dated 20.07.2005 of S.R.O, Kothamangalam. On the same day Xavier and Varghese executed a release deed No.4865/2005 releasing their right over the building to the plaintiffs. Thus the plaintiffs got half over the plaint schedule property.

7. The first defendant has not so far paid the amount of Rs.1 lakh which was to be paid within three months of completion of the first floor of the building. In spite of repeated demands the first defendant did not pay the amount and therefore the plaintiffs did not start further constructions in time. Now the defendants have taken a stand that since the plaintiffs could not complete the construction within 31.03.2006, they will not have any right to further constructio