Kerala High Court
Paul(Died) vs Prabhakaran on 23 July, 2025
RFA 458/2010 (Indigent)
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2025:KER:54433
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 23RD DAY OF JULY 2025 / 1ST SRAVANA, 1947
RFA NO. 458 OF 2010
OS NO.189 OF 2007 OF PRINCIPAL SUB COURT, IRINJALAKUDA
APPELLANT/DEFENDANT
1 PAUL,S/O CHAZHUR DEVASSY, VARANDARAPPILLY
VILLAGE,PALLIKUNNU DESOM,MUKUNDAPURAM TALUK. (DIED)
ADDL.2 JOSEPHEENA PAUL, AGED 82 YEARS
W/O LATE PAUL,CHAZHOOR HOUSE,VARANDARAPPILLY
VILLAGE,PALLIKUNNU DESOM, MUKUNDAPURAM TALUK.
ADDL.3 ANCY JOSEPH, AGED 53 YEARS
D/O LATE PAUL,THOTTIPARAMBIL HOUSE,
MATRA,VATTIAMTHODE P.O,VAITHUR ,IRITTY TALUK,
KANNUR DISTRICT.
ADDL.4 REJI PAUL, AGED 51 YEARS
S/O.LATE PAUL,CHIRIGANKANDATH HOUSE, RAMAVARMAPURAM
P.O,VILAVATTOM VILLAGE, TRISSUR TALUK AND DISTRICT.
ADDL.5 JOSE PAUL, AGED 49 YEARS
S/O.LATE PAUL,CHAZHOOR HOUSE,VARANDARAPPILLY
VILLAGE,PALLIKUNNU DESOM, MUKUNDAPURAM TALUK.
ADDL.6 REENA PAUL, AGED 44 YEARS
D/O.LATE PAUL,MURINGATHERY HOUSE,ERUMAPETTY P.O,
KARIYANNUR VILLAGE, THALAPPILLY TALUK
LEGAL HEIRS OF DECEASED APPELLANT ARE IMPLEADED AS
ADDITIONAL A2 TO A6 ,VIDE ORDER DATED 20.6.2019 IN
IA 3/2019.
BY ADV SRI.V.BINOY RAM
RESPONDENT/PLAINTIFF
RFA 458/2010 (Indigent)
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2025:KER:54433
PRABHAKARAN, S/O.MANAKADAN NARAYANAN,PALLIKUNNU
DESOM,VARANDARAPPILLY VILLAGE, MUKUNDAPURAM TALUK.
BY ADVS.
SRI.RENJITH THAMPAN (SR.)
SRI.V.M.KRISHNAKUMAR -SC
SMT.P.R.REENA
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
15.7.2025, THE COURT ON 23.07.2025 DELIVERED THE FOLLOWING:
RFA 458/2010 (Indigent)
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2025:KER:54433
JUDGMENT
Dated : 23rd July, 2025 The defendant in OS No.189/2007 on the file of the Principal Sub Court, Irinjalakuda, is the appellant. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court).
2. The plaintiff filed the suit for specific performance. According to the plaintiff, the plaint schedule property consisting of 30 cents of land belonged to the defendant was agreed to be sold to the plaintiff for a consideration of Rs.8,800/- per cent. An agreement in that respect was entered into between the plaintiff and the defendant on 8.1.2007 and on the date of the execution of the sale agreement itself, a sum of Rs.1,00,000/- was paid as advance. The period of the agreement was six months. Further, according to the plaintiff, in pursuance to the execution of the above agreement on 8.1.2007, he had entered into another agreement with one Anthony, the son of Pindiyan Lonappan, to construct a road to the plaint schedule property and accordingly a road was constructed through the plaint schedule property. After the road was constructed as above, the defendant understood that the scheduled property would get a higher price, issued a notice dated 22.3.2007 to the plaintiff stating that it was only a loan transaction and not an agreement for sale. The plaintiff issued a reply notice to the plaintiff on 24.3.2007 demanding execution of the sale deed in his favour. Since the defendant failed to perform the contract, he filed the suit seeking specific performance.
RFA 458/2010 (Indigent) 4 2025:KER:54433
3. In the written statement filed by the defendant he has taken a contention that he had only borrowed a sum of Rs.50,000/- from the plaintiff and as demanded by the plaintiff, he had affixed his signature in a stamp paper and some other papers and that it was misused by the plaintiff for forging a sale agreement. Though he was prepared to repay the loan amount, the plaintiff was not prepared to receive the same and to return the signed papers obtained by him, demanding exorbitant interest for the loan amount. According to the defendant, it was in the above context that he issued a lawyer's notice to the plaintiff on 22.3.2007. In the light of the above contentions the defendant prayed for dismissing the suit.
4. The trial court framed eight issues. The evidence in the case consists of the oral testimonies of PWs1 to 3, DWs1 and 2 and Exts.A1 to A5, A5(a) and B1 to B8, C1 and C1(a). After evaluating the evidence on record, the trial court decreed the suit and directed the defendant to execute the sale deed in performance of Ext.A1 sale agreement. Being aggrieved by the judgment and decree of the trial court, the defendant preferred this appeal, raising various contentions.
5. Now the points that arise for consideration are the following :-
1. Whether Ext.A1 sale agreement was executed by the defendant ?
2. Whether the trial court has exercised the discretion under Section 20 of the Specific Relief Act correctly ?
6. Heard Sri.V.Binoy Ram and Smt.Monisha K.K., the learned counsel for RFA 458/2010 (Indigent) 5 2025:KER:54433 the appellant and Smt.P.R.Reena, the learned counsel for the respondent.
7. According to the plaintiff, as per Ext.A1 agreement executed with the defendant, the defendant agreed to sell the plaint schedule property having an extent of 30 cents for a price of Rs.8,800 per cent and also that, on the date of the agreement itself, he had paid a sum of Rs.1,00,000/- as advance. However, the defendant contends that he only borrowed a sum of Rs.50,000/- as loan and at that time signed in a stamp paper and other papers as security, which were misused for fabricating Ext.A1.
8. The learned counsel for the appellant would argue that though the defendant examined a witness as DW2 to substantiate the case of the appellant, the trial court had not even considered the evidence of DW2 and thereby rendered a wrong decision. On the other hand, the learned counsel for the respondent/plaintiff would argue that, after the execution of the sale agreement, the plaintiff has constructed a road through the plaint schedule property and thereafter when it was found that the schedule property will fetch more, the defendant withdrew from the contract.
9. It is true that on behalf of defendant, the defendant himself was examined as DW1 and in addition to the same, another witness was examined as DW2 and the evidence of DW2 was not considered by the trial court. DW2 deposed that he saw the defendant receiving Rs.50,000/- from the plaintiff and obtaining blank RFA 458/2010 (Indigent) 6 2025:KER:54433 signed papers from him. Even during the chief examination at one stage DW2 would swear that he does not know Prabhakaran, the plaintiff. However, at another stage, he claims that he saw the plaintiff receiving Rs.50,000/- from the defendant. During the re-examination, an attempt was made to show that he did not know the plaintiff prior to the transaction alone.
10. The learned counsel for the respondent/plaintiff relied upon Ext.A2 letter issued by PW2 to the plaintiff with regard to the formation of a 3 metre width pathway through the plaint schedule property after the execution of Ext.A1 as well as the evidence of PW2 in support of the plaintiff's case. In the proof affidavit filed by PW2, it is categorically stated that when the defendant wanted to sell the plaint schedule property, the plaintiff entered into an agreement for sale for purchasing the said property for a sum of Rs.8,800/- per cent. He also deposed that after the execution of the sale agreement, he wanted to construct a road to his property through the plaint schedule property and at that time, the defendant directed him to approach the plaintiff and accordingly he contacted the plaintiff and a new road was constructed through the plaint schedule property.
11. The fact that a new road was constructed through the plaint schedule property, at the intervention of the plaintiff and PW2, is not in dispute. In order to substantiate the construction of the new road, the plaintiff has produced Ext.A2 letter executed between the plaintiff and PW2. At the time of arguments, the learned counsel for the appellant would argue that Ext.A2 is only a letter and as such it cannot RFA 458/2010 (Indigent) 7 2025:KER:54433 be relied upon. It is true that Ext.A2 is only a letter. However, in the written statement, the defendant himself admitted that PW2 approached him to construct a temporary road towards the property of PW2, which situates on the western side of the plaint schedule property and that, at that time the defendant permitted the plaintiff to construct a temporary road throug h the plaint schedule property. The above admission in the written statement that the defendant permitted the plaintiff to construct a new road up to the property of PW2 which situates on the western side of the pliant schedule property substantiates the case of the plaintiff that after the execution of Ext.A1, he along with PW2, constructed a new road having a width of three metre through the plaint schedule property.
12. As argued by the learned counsel for the plaintiff, if Ext.A1 was not a genuine sale agreement executed between the plaintiff and defendant, there was no necessity for the plaintiff to construct a road through the plaint schedule property with the permission of the defendant. Similarly, if Ext.A1 was not a genuine sale agreement, there was no chance for the defendant to permit the plaintiff to construct a new road upto the property of PW2 through the plaint schedule property. Similarly, from the evidence of PW3 also it is revealed that the defendant wanted to sell the plaint schedule property and at that time, the plaintiff agreed to purchase the same for Rs.8,800/- per cent and Ext.A1 was executed accordingly, after paying an advance amount of Rs.1,00,000/-. The above evidence of PW3 also substantiates the evidence of PW1. Though PWs1 and 3 were cross-examined, nothing material could be RFA 458/2010 (Indigent) 8 2025:KER:54433 brought out to discredit their testimonies.
13. PW2 also deposed that Ext.A2 letter was issued by him to the plaintiff for the purpose of constructing a new road through the plaint schedule property. In the Ext.C1 report prepared by the Advocate Commissioner also it is reported that when he visited the scheduled property on 28.3.2007, a new pathway having a width of three metre and a length of 35.2 metre was constructed. It is also admitted that at the time of Ext.A1 sale agreement, the plaint schedule property was a paddy field and the Commissioner also reported that when he visited the property, it was lying as a paddy field. Therefore, from the evidence of PWs1 to 3 and Ext.C1 Commission report, it is revealed that after the execution of Ext.A1, at the instance and intervention of the plaintiff, a new road was constructed through the plaint schedule property. As I have already noted above, if there was any merit in the argument advanced by the defendant that there was only a loan transaction and that Ext.A1 is a fabricated document, there was no chance for construction of such a road through the plaint schedule property at the intervention of the plaintiff. In the above circumstances, the evidence of DW2 will not in any way help the defendant to disbelieve the execution of Ext.A1. In other words, from the available evidence, the plaintiff has succeeded in proving the due execution of Ext.A1 sale agreement.
14. During the cross-examination of PW1, a question was put to him to the effect that the plaint schedule property will fetch Rs.35,000/- per cent to which he replied that he does not know. The above answer given by PW1 was relied upon by RFA 458/2010 (Indigent) 9 2025:KER:54433 the learned counsel for the appellant to show that Ext.A1 was not a genuine sale agreement, but a forged document. In this context it is to be noted that at the time of execution of Ext.A1, the plaint schedule property had no clear-cut pathway and it was at that time the plaintiff agreed to purchase the same for a price of Rs.8,800/-. Immediately thereafter the plaintiff constructed a new road through the plaint schedule property and automatically its price might have increased considerably. It was at the instance of the plaintiff that a new road was constructed and the increase of the price for the plaint schedule property if any, is due to the contribution made by the plaintiff. In the above circumstances the above answer given by PW1 will not in any way help the plaintiff to substantiate the argument that Ext.A1 was a forged document.
15. Though Ext.A1 was executed on 8.1.2007 and the period of agreement was fixed as six months, even before the expiry of six months, on 22.3.2007, the defendant issued Ext.A3 notice denying Ext.A1 and contended that it was only a loan transaction. Immediately on 24.3.2007, the plaintiff sent a reply denying the averments in Ext.A3 notice and demanding specific performance. Thereafter the plaintiff filed the suit on 28.3.2007, even before the expiry of the period stipulated in Ext.A1. It shows that though as per Ext.A1 there is a period of six months and the period of Ext.A1 expires only on 8.7.2007, the plaintiff filed the suit long before the expiry of the period stipulated in Ext.A1, which shows his readiness and willingness to get the sale deed executed.
RFA 458/2010 (Indigent) 10 2025:KER:54433
16. On the other hand, by issuing Ext.A3, the defendant proved that he was not at all ready and willing to perform Ext.A1 sale agreement. Further, from the conduct of the plaintiff, immediately after the execution of Ext.A1, by entering into a contract with PW2 and to construct a new road having a width of three metre through the plaint schedule property with the permission of the defendant further substantiates the readiness and willingness of the plaintiff to get the sale deed executed. The defendant has no case that the plaintiff was not at all ready and willing to perform his part of the contract or that he had no financial capacity to pay the balance sale consideration and to get the sale deed executed. In the light of the above circumstances, the trial court was justified in holding that the plaintiff was ready and willing to perform his part of the contract and that he had the financial capacity to pay the balance sale consideration and to get the sale deed executed. In the light of the above circumstances, the trial court was justified in holding that the breach of contract was committed by the defendant and also in exercising the discretion under Section 20 of the Specific Relief Act in favour of the plaintiff. Therefore, I do not find any irregularity or illegality in the impugned judgment and decree of the trial court so as to call for any interference. Points answered accordingly.
17. In the result, this appeal is dismissed. Considering the facts, I order no costs.
18. The appellant preferred this appeal as indigent. During the pendency of the appeal, the appellant died and his legal representatives were impleaded as RFA 458/2010 (Indigent) 11 2025:KER:54433 additional appellants 2 to 6. As per the order in C.M.C.(P).14/2010 he was permitted to prosecute the appeal as an indigent person. A sum of Rs.24,820/- is due from the appellant towards court fee. Forward an authenticated copy of this judgment to the District Collector concerned so that the State could recover the above court fee from the assets of the deceased defendant.
All pending interlocutory applications will stand dismissed.
Sd/- C.Pratheep Kumar, Judge Mrcs/15.7.