A decree for return of advance money can be granted even if the agreement's legitimacy is disputed, provided the plaintiff's testimony remains unimpeached and the defendants fail to present counter-evidence.

JUDGMENT

This appeal arises out of the concurrent findings of the Additional Sub Court, Irinjalakuda in O.S No.704/2011, afÏrmed by the Additional District Court, Irinjalakuda in A.S No.127/2015.

2. The brief facts necessary for the disposal of the appeal are as follows:-

The 1st respondent / plaintiff instituted the suit for return of advanced money based on the agreement of sale dated 03.03.2011. According to the plaintiff, the plaint scheduled property originally belonged to one Ummer and about 11 years back, the husband of the 1^st defendant Moidheen Haji, had entered into an oral agreement of sale of the plaint scheduled property with Ummer and paid entire sale consideration to the Ummer and the possession of the plaint scheduled property was handed over to Moidheen Haji. After Moidheen Haji agreed to sell the plaint scheduled property in favour of the plaintiff, an oral agreement of sale was entered into, and the plaintiff and his family started residing in the building in the plaint schedule property. Moidheen Haji passed away 5 years back and did not get any sale executed in his favour. His legal heirs are defendants 1 to 4 and husband of the 5^th defendant in the suit. The legal heirs executed a sale deed in favour of defendants 1 to 5 as per document No.2237/2010. Pursuant to a mediation at the instance of one Ali and Anthamu, a total sale consideration of Rs.5 lakhs was arrived at and thereafter defendants 1 to 5 agreed to execute the sale deed and an agreement of sale was executed on 03.03.2011 and Rs.2 lakhs was received by the defendants. Since the plaintiff was willing to perform the contract and the defendants failed to perform the contract, he sought special performance of the contract. The defendants entered appearance and contested the suit and denied the execution of the agreement of sale. Subsequently the plaint was amended and the plaintiff confined the relief for return of advance money. Defendants 1, 3, 4 and 5 filed a written statement disputing the existence of agreement of sale and receipt of advance sale consideration. It was contended by the 5^th defendant that she is not the legal heirs of the Moidheen Haji and she had purchased the plaint scheduled property not as legal heir of Moidheen Haji. It is further contended that the plaintiff was residing in the property as the tenant. But, however, it was admitted that they had purchased the property from the legal heirs of Moidheen Haji by document No.2237/2010. It is further alleged that the agreement of sale was fabricated and that despite demand, the plaintiff did not vacate the plaint schedule property. Due to the continued illegal acts of the plaintiff a criminal complaint was also lodged before the Station House OfÏcer of the Mathilakam Police Station. On behalf of the plaintiff Exts.A1 to A5 documents were produced, PW1 to PW4 were examined. Ext.B1 is the copy of the CMP No.5418/2012 filed before the Judicial Magistrate of First Class, Kodungallur was marked through PW1. The defendants did not adduced any oral or documentary evidence. The trial court on appreciation of the oral and documentary evidence found that the alleged agreement of sale dated 03.03.2011 is a forged document and that the plaintiff would not successfully proved the execution of the document. However, taking note of the fact that there is a categorical assertion by the plaintiff in the plaint averments as well as when he was cross examined as PW1, that he had entrusted amount of Rs.2 lakhs to the 5^th defendant and further that the 5^th defendant did not mount to the box to tender any evidence, an adverse inference was sought and the suit was