IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 101 of 1999(A)
1. P.K.VENU
... Petitioner
Vs
1. K.P.JOSEPH
... Respondent
For Petitioner :SRI.DINESH MATHEW J.MURICKEN
For Respondent :SMT.A.P.LALY @ LALY VINCENT
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :02/11/2010
O R D E R
Thottathil B.Radhakrishnan
&
P.Bhavadasan, JJ.
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A.S.NO.101 OF 1999-F
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Dated this the 2nd day of November, 2010.
Judgment
Thottathil B.Radhakrishnan, J.
1.This appeal is by the plaintiff in a suit for
specific performance of a contract for sale.
2.According to the plaintiff, on 16.1.1995, Ext.A1
agreement was entered into between him and the
defendant whereby the defendant agreed to convey
an extent of 5 = cents of land and the building
thereon for a total consideration of Rs.1.25
lakhs and that the defendant was paid an amount
of Rs.1 lakh as advance and the remaining
consideration of Rs.25,000/- was to be paid in 10
months. Alleging breach and refusal to abide by
the obligation under Ext.A1, the suit was laid.
AS101/99 -: 2 :-
3.The defendant contested contending that Ext.A1
was never entered into; that there was no
agreement for sale at all and that certain signed
blank papers were entrusted in connection with
the availing of a chitty transaction with the
plaintiff’s mother. He denied the alleged
contract for sale in toto.
4.The court below heard the evidence of the
plaintiff as P.W.1., P.W.2 who is stated to be an
attestor to Ext.A1 and P.W.3, a brother-in-law of
P.W.1 who is stated to have provided Rs.45,000/-
to the plaintiff for being paid as advance. D.W.1
is the defendant. D.W.2 is his wife and D.W.3 is
a stranger. D.W.2 denied her signatures and D.W.3
spoke that plaintiff’s mother had chitty
transactions.
5.With the materials on record, the court below, on
preponderance of probabilities, held that the
execution of Ext.A1 and the alleged agreement for
sale cannot be believed. The plaintiff was
AS101/99 -: 3 :-
accordingly non-suited. Hence, this appeal.
6.In support of the appeal, learned counsel for the
plaintiff argued that the totality of the
evidence on record points only to the conclusion
that the plaint claim was sustainable and Ext.A1
transaction is proved. There was no reason for
the court below, according to him, to have
disbelieved the testimony of P.Ws.1, 2 and 3. He
stated that the conclusions of the court below
are away from the weight of evidence and the
probabilities emanating out of the totality of
the facts and circumstances.
7.We have not had the privilege of hearing the
learned counsel for the respondent-defendant.
8.Ext.A1 is dated 16.1.1995. The execution of that
agreement and the existence of any contract as
pleaded in the plaint is denied in toto in the
written statement and also in Ext.A3 reply notice
dated 26.10.1995. Neither the plaintiff as P.W.1
AS101/99 -: 4 :-
nor any witness on his behalf brings in evidence,
the probability of any consensus arrived at
between the parties or even of any discussion in
relation to the so called agreement for sale, at
any time before Ext.A1. We say this in the
context of the fact that the agreement Ext.A1
dated 16.1.1995 has four sheets, of which the
first is a stamp paper purchased in the name of
the plaintiff on 9.1.1995. It was issued by a
stamp vendor K.C.Dasan. The plaintiff has a case
that it was one Dasan who wrote up the document
and it was brought by Dasan. But the said person,
Dasan, was not examined. We notice that no shred
of material is available to disclose that there
was any concluded mutual understanding preceding
the execution of Ext.A1. Going by the fact that
the first sheet of Ext.A1 is shown to have been
purchased in the name of the plaintiff on
9.1.1995, if at all there was such an
understanding, it should have been on or before
9.1.1995. There is no dependable legal evidence
to this effect. This assumes importance because
AS101/99 -: 5 :-
it is alleged in the plaint and asserted by the
plaintiff that it was on 16.1.1995 that the
agreement was entered into. There is no plea
regarding any other earlier discussions even.
There is no evidence of any such earlier meeting
of minds. Ext.A1 is stated to have been signed at
about 6.30 p.m. and the plaintiff is stated to
have parted with Rs.1 lakh out of the total
consideration of Rs.1.25 lakhs on that day
itself. P.W.3, his brother-in-law, says that
P.W.1 had advanced certain amounts to P.W.3 and
P.W.3 repaid that amount of Rs.45,000/- during
the first week of January, 1995. P.W.1, the
plaintiff, says that the defendant had entered
into the agreement for sale because he needed
funds in connection with the marriage of his
second daughter. On the totality of the materials
on record, we find that the conclusions arrived
at by the court below on an appreciation of the
entire evidence on record are more probable and
there is no reason to upset those findings in
appeal under Section 96 of the Code of Civil
AS101/99 -: 6 :-
Procedure. We may also note that there is fair
amount of inconsistency as regards availability
of funds with P.W.1 to support the contract.
With all the aforesaid, we find no way to
interfere, in any manner, with the findings of
the court below. The appeal fails. The same is
accordingly dismissed. No costs.
Thottathil B.Radhakrishnan,
Judge.
P.Bhavadasan,
Judge.
Sha/09-25/11
AS101/99 -: 7 :-
Thottathil B.Radhakrishnan
&
P.Bhavadasan, JJ.
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A.S.101 of 1999-F
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Judgment
2nd November, 2010.