The failure to prove the non-execution of a sale deed is detrimental to the appeallant's case.

JUDGMENT

This appeal is preferred by the defendant in O.S. No.192 of 2013, a suit for specific performance. According to the plaintiff, an agreement for sale was entered into between the plaintiff and the defendant on 21.12.2012, whereby the defendant agreed to sell the plaint schedule property to the plaintiff at the rate of Rs.49,000/- per cent, and a sum of Rs.6,00,000/- was paid as advance by the plaintiff to the defendant towards sale consideration. The plaintiff contended that in pursuance of the said agreement, a sale deed was also prepared on 5.8.2013. However, the defendant, after affixing her signature in the sale deed, refused to execute the sale and hence the suit. The defendant resisted the suit by contending that there was no agreement of sale between the parties and that only an amount of Rs.50,000/- was borrowed by her from the plaintiff, and the agreement of sale dated 21.12.2012 was a fabricated and concocted one. On behalf of the plaintiff, PW1 to PW5 were examined in order to prove the execution of Exts.A2 and A5 documents. PW2 also deposed that he had witnessed the plaintiff and the defendant affixing their signatures on Ext.A2 document. Considering the evidence adduced by the parties, the trial court came to the conclusion that the plaintiff is entitled for specific performance of Ext.A2 agreement and decreed the suit by directing the defendant to execute the sale deed based on Ext.A2 agreement. Aggrieved, the defendant preferred A.S. No.15 of 2020 before the Sub Court, Manjeri. The first appellate court, on reappreciation of the evidence on record, interfered with the findings of the trial court and converted the decree of specific performance into an alternate relief of return of advance money with a direction to the defendant to pay a sum of Rs.6 lakhs with interest at the rate of 6% per annum from 25.10.2013 till realisation. Aggrieved, the defendant has come up in the present appeal.

2. Heard Sri. P. Samsudin, the learned counsel appearing for the appellant and Sri. K.M. Jamaludheen, the learned counsel appearing for the respondent.

3. The learned counsel appearing for the appellant/defendant submitted that the plaintiff has not proved the execution of Exts.A2 and A5 documents. In fact, the defendant denied the signature on the document, and therefore, it was incumbent upon the plaintiff to prove its execution. It is further pointed out that the plaintiff has not proved the source of income in order to prove that an amount of Rs.6 lakhs was advanced to the defendant. The appreciation of the oral and documentary evidence by the court below is perverse and therefore requires interference.

4. Per contra, Sri. K.M. Jamaludheen, the learned counsel appearing for the respondent/plaintiff, contended that the findings rendered by the courts below are perfectly correct and do not call for any interference. Though the plaintiff had not prayed for an alternate relief of return of advance money, the first appellate court, in its discretion, has interfered with the decree of specific performance, and the plaintiff is satisfied with the return of money. The appeal is now filed at a stage where the execution petition is posted for the sale of the property and for the realisation of the amount.

5. I have considered the rival submissions raised across the Bar and have perused the judgments of the courts below.

6. On consideration of the rival submissions raised across the Bar, this Court is of the view that no substantial question of law arises for consideration in the appeal inasmuch as the defendant/appellant failed to prove that she has not executed Ext.A5 sale deed, which led to the filing of the suit. It is true that the appellant’s signature is not available on the last page of Ext.A2. But then, it must be remembered that Ext