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HIGH COURT OF KERALA
A. BADHARUDEEN, J
BABU M.P.,
– Appellant
Versus
THANKAMMA,(DIED) LRS RECORDED – Respondent
RSA 158 2022
Second Appeal - Specific Performance - CPC Section 100, Order XLII Rule 2 - The court interpreted the necessity of formulating a substantial question of law for second appeals under the Code of Civil Procedure, affirming that concurrent findings of fact by lower courts must be respected unless such a question is established.
Fact of the Case:
The plaintiff sought specific performance of an agreement for sale, alleging the defendant's acceptance of payment and possession. The defendant countered with denial of the agreements and possession, leading to a trial where plaintiff's claims failed due to insufficient evidence.
Issues: Whether the plaintiff established the existence of valid agreements to warrant specific performance and whether the appeal meets the criteria for a substantial question of law.
Ratio Decidendi: The court held that without proof of the agreements and without formulating a substantial question of law, the second appeal could not be allowed according to Section 100 of the CPC.
Final Decision: The second appeal is dismissed for lack of merit.
J U D G M E N T
This Regular Second Appeal has been filed under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure , assailing judgment in A.S.No.305/2011 dated 31.07.2017 on the files of Additional District Court, Kottayam arose out of judgment and decree in O.S.No.466/2007 on the files of the Principal Sub Court, Kottayam dated 25.07.2011.
2. I shall refer the parties in this appeal with reference to their status before the trial court, as `plaintiff’ and `defendant’ for convenience.
3. Heard the learned counsel for the appellant/plaintiff and the learned counsel for the contesting respondents/defendants on admission.
4. Perused the judgments under challenge and the documents placed by the learned counsel for the plaintiff as well as the defendants.
5. The plaintiff filed suit for specific performance of an agreement for sale alleged to be executed between the plaintiff and the original defendant, who is now no more. According to the plaintiff, the defendant agreed to execute sale deed in respect of plaint schedule property for a total consideration of Rs.1,25,000/-. On the date of execution of the agreement, ie. on 25.05.2003, Rs.10,000/- was paid as advance sale consideration. But there existed a mortgage to the tune of Rs.75,000/- with Njeezhoor Service Co-operative Bank. Accordingly, on 05.09.2003, the defendant accepted Rs.40,000/- more as advance and renewed the agreement after parting possession of plaint schedule property with the plaintiff. Though the defendant agreed to clear the balance outstanding in the Co-operative Bank amounting to Rs.23,461/-, when he received Rs.40,000/- the defendant failed to clear the same. Consequently, the plaintiff paid the amount and cleared the mortgage liability. According to the plaintiff, the plaintiff is always ready and willing to perform his part of contract and to execute the sale deed after paying Rs.51,539/- as balance sale consideration.
6. The defendant filed written statement and denied execution of the original agreement dated 25.05.2003 and its renewal as on 05.09.2023. The defendant contended that the defendant never handed over possession of the property to the plaintiff at any point of time. According to the defendant, the plaintiff obtained order of prohibitory injunction and trespassed upon the plaint schedule property and he constructed a shed therein. The defendant raised counter claim for recovery of possession of the property from the plaintiff.
7. The plaintiff filed replication and resisted the counter claim banking on the allegation that he got possession over the property on the basis of the agreement for sale.
8. The trial court raised necessary issues and tried the matter. PW1 and PW2 were examined and Exts.A1 to A4 were marked on the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 and B2 were marked on the side of the defendant. 9. On meticulously analysing the evidence, the trial court found that the plaintiff miserably failed to prove execution of Exts.A1 and A1(a) agreements. Accordingly, it was found that the plaintiff is a trespasser and he is bound to part possession of the property to the defendant. Accordingly, the suit was dismissed with cost of the Additional 4th defendant and the additional 4th defendant was allowed to recover possession of the plaint schedule property after evicting the plaintiff from the property.
10. On appeal, the learned Additional District Judge also, on re-appreciation of the evidence, confirmed the decree and judgment of the trial court.
11. At the time of admission, the learned counsel for the plaintiff vehemently argued to hold that execution of Exts.A1 and A1(a) agreements by the defendant, agreeing to execute sale deed in favour of the plaintiff in relation to the plaint schedule property, is well established by the evidence of PW1 and PW2 and the trial court as well as the appellate court went wrong in holding otherwise. It is also submitted that the finding of the appellate court that th
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