The appellate court's finding that the sale agreement was not genuine was deemed perverse, impacting the entitlement to specific performance and alternative relief.

JUDGMENT

This appeal arises out of the reversal of the judgment and decree for specific performance granted by the Sub Court, Ottappalam in O.S. No.101 of 2002 by the Additional District Court-II, Palakkad in A.S.

No.92 of 2008.

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

On 1.10.2001 an agreement of sale was executed between the plaintiff and the 1^st defendant. An amount of Rs.45,000/- was paid on the said date, and later on, 15.12.2001, a sum of Rs.65,000/- was paid towards the balance consideration. A period of nine months was fixed for the performance of the agreement. On 28.6.2002, the suit for specific performance was filed. However, in the meantime, a sale deed was executed by the 1^st defendant in favour of the 2^nd defendant. The 2^nd defendant was also impleaded in the suit for specific performance. The 1^st defendant, after filing a written statement, remained ex parte. The 1^st defendant contended that the contract of sale was rescinded and the said recession was informed to the plaintiff through the 2^nd defendant. The 2^nd defendant resisted the suit by disputing the existence of Ext.A1 agreement and contended that the plaintiff and the 1^st defendant had colluded to execute the sale agreement to defeat the rights of the 2nd defendant. On behalf of the plaintiff, Ext.A1 agreement was produced, and PW1 and PW2 were examined. On behalf of the defendants, Exts.B1 to B2 series documents were produced, and DW1 was examined. Exts.C1 and C2 are the report and plan filed by the Advocate Commissioner. The trial court, on consideration of the rival pleadings and appreciation of the evidence and documentary evidence came to the conclusion that the plaintiff is entitled to a decree of specific performance and directed the defendants to execute a sale deed transferring the plaint schedule property to the plaintiff by receiving the balance amount of Rs.10,000/- within one month. Aggrieved, the 2^nd defendant preferred A.S. No.92 of 2008 before the Additional District Court - II, Palakkad. The first appellate court, on reappreciation of the evidence, found that the case pleaded by the 2^nd defendant is more probable and therefore set aside the findings of the trial court and dismissed the suit even without granting a decree for return of advance money. Hence the present appeal.

3. Heard Sri. Thareeq Anver K., the learned counsel appearing for the appellant and Smt. Namitha George, the learned counsel appearing for the respondents.

4. On 10.10.2011 this Court framed the following substantial questions of law for consideration:

1. Whether first appellate court on the evidence was justified in holding that Ext.Al agreement is not genuine and was subsequently created by the plaintiff in collusion with the first defendant and therefore the plaintiff is not entitled to a decree for specific performance of Ext.Al agreement?

2. When the first defendant in the written statement admitted execution of Ext.Al, whether the first appellate court was justified in dismissing the suit when an alternative decree for realisation of the advance amount paid under Ext. Al was sought for?

5. Sri. Thareeq Anver K., the learned counsel, submitted that the finding rendered by the first appellate court is clearly perverse and that the execution of Ext.A1 agreement was admitted by the 1st defendant and therefore the judgment and decree could not have been reversed in an appeal preferred by the 2^nd defendant. It is further pointed out that during the currency of the sale agreement, the 1^st defendant had executed a sale deed in favour of the 2^nd defendant and therefore, the 2^nd defendant had no right over the property. Moreover,