IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 259 of 1997()
1. P.SASIKUMAR
... Petitioner
Vs
1. MOOTHAT BHASKARAN
... Respondent
For Petitioner :SRI.C.VATHSALAN
For Respondent :SRI.V.V.SURENDRAN
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :18/08/2009
O R D E R
P.Q.BARKATH ALI, J.
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A.S.No.259 OF 1997
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Dated this the 18th day of August, 2009
JUDGMENT
Plaintiff is the appellant. The suit was for recovery of advance
amount paid under an oral agreement for sale which was dismissed by
the lower court.
2. The case of the appellant/plaintiff as stated in the plaint and
as testified by him as PW1 before the lower court in brief is this :
The defendant has agreed to sell 66 = cents comprised in
Sy.No.42/1 belonging to the plaintiff for a consideration of Rs. 5600/-
per cent. The defendant received an advance amount of Rs. 20,000/-
on November 14, 1990 for which the defendant has issued a receipt –
Ext.A1. The agreement was to execute the sale deed within two years
of payment of the balance sale consideration. Inspite of the notice
issued – Ext.A6(a) dated December 7, 1992, the defendant refused to
execute the sale deed or return the advance amount.
3. The case of the respondent/defendant was of total denial.
A.S.No.259/1997 2
The plaintiff was examined as PW1, a witness to Ext.A1 examined as
PW2 and Exts.A1 to A8 were produced on the side of the plaintiff
before the lower court. The defendant was examined as DW1 before
the lower court. The lower court on an appreciation of evidence found
that the plaintiff has failed to prove the oral agreement for sale as well
as the alleged execution of Ext.A1 by the defendant and dismissed the
suit. The plaintiff has now come up in appeal.
4. The learned counsel for the appellant argued that the lower
court went wrong in finding that Ext.A1 was not executed by the
defendant and the comparison of admitted signature of the defendant in
Ext.A8 with the disputed signature in Ext.A1 is not legal. The learned
counsel for the respondent/defendant on the other hand would submit
that the lower court is perfectly justified in finding that Ext.A1 was not
executed by the defendant.
5. The main question which arises for consideration is
whether the appellant/plaintiff has succeeded in proving the alleged
oral agreement of sale and alleged payment of the advance amount of
Rs. 20,000/- and execution of Ext.A1 by the defendant/respondent.
A.S.No.259/1997 3
6. I have gone through the evidence adduced by both parties
and the judgment of the lower court. The lower court has given
convincing and cogent reasons for disbelieving the evidence of PW1
regarding the alleged oral agreement for sale. The lower court is also
justified in comparing the admitted signature of the defendant in
Ext.A8 with that of the disputed signature in Ext.A1 and coming to the
conclusion that there are glaring dis-similarities between those
signatures. In Ext.A1 a stamp is seen affixed to cover some other
writing. According to the plaintiff, two years time has been given for
executing the sale deed and at the same time he would say that the
agreement for sale was not written in stamp paper due to urgency of
the respondent/defendant. It is correctly observed by the learned
Subordinate Judge that if the plaintiff can get a receipt like Ext.A1
which is styled as an agreement for sale, there is nothing prevented him
from executing a regular agreement for sale. Therefore, the reason put
forward by PW1 for not executing an agreement for sale appears to be
unconvincing. The lower court has also disbelieved the evidence of
PW2, one of the attesting witnesses to Ext.A1 for obvious reasons.
A.S.No.259/1997 4
I have gone through the evidence of PW1, PW2 and DW1 and perused
the documents. I find no reason to disagree with the findings entered
by the lower court.
7. Under these circumstances, I am of the view that the lower
court is perfectly justified in rejecting the evidence of PW1 and PW2
and holding that plaintiff has failed to prove the alleged oral agreement
for sale and alleged receipt of Rs. 20,000/- as advance by the
defendant and execution of Ext.A1. That being so, the appeal has to be
dismissed.
In the result, the appeal is dismissed with costs.
P.Q.BARKATH ALI
JUDGE
sv.
A.S.No.259/1997 5