Kerala High Court
P.V. Babu vs Abdullakutty (Died) on 27 August, 2025
RFA 224/2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 27TH DAY OF AUGUST 2025 / 5TH BHADRA, 1947
RFA NO. 224 OF 2018
OS NO.51 OF 2016 OF SUB COURT, CHAVAKKAD
APPELLANT/PLAINTIFF
P.V. BABU
S/O. PORATTHOOR VARGHESE,CHITTANDA VILLAGE,
THRIKKANAPATHIYARAM DESOM, P.O KUNDANNOOR,
THALAPPILLY TALUK, THRISSUR DISTRICT 680 590
BY ADVS.
SRI.K.JAJU BABU (SR.)
KUM.NEETU VINOD
SMT.M.U.VIJAYALAKSHMI
SRI.SACHIN RAMESH
RESPONDENTS/DEFENDANTS & SUPPLEMENTAL DEFENDANTS
1 ABDULLAKUTTY (DIED)
S/O. AMBALATHUVEETIL KUNJIMARAKKAR,ENKAKKAD
VILLAGE, PARUTHIPRA DESOM,THALAPPILLY TALUK,
THRISSUR DISTRICT-680 590.
2 PATHUMMA @ FATHIMMA (DIED)
W/O. AMBALATHUVEETIL ABDULLAKUTTY, ENKAKKAD
VILLAGE, PARUTHIPRA DESOM,THALAPPILLY TALUK,
THRISSUR DISTRICT-680 590.
3 ASHARAF, AGED 32 YEARS,S/O. AMBALATHUVEETIL
ABDULLAKUTTY, ENKAKKAD VILLAGE, PARUTHIPRA DESOM,
THALAPPILLY TALUK, THRISSUR DISTRICT 680 590
4 SHEREEF, AGED 30 YEARS, S/O. AMBALATHUVEETIL
ABDULLAKUTTY, ENKAKKAD VILLAGE, PARUTHIPRA DESOM,
THALAPPILLY TALUK, THRISSUR DISTRICT-680 590.
5 SHAKKEER, AGED 28 YEARS,S/O. AMBALATHUVEETIL
RFA 224/2018
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ABDULLAKUTTY, ENKAKKAD VILLAGE, PARUTHIPRA DESOM,
THALAPPILLY TALUK, THRISSUR DISTRICT-680 590.
(It is recorded vide order dated 27.11.2019 in
memo dated 16.11.2019 that R2 expired on
18.1.2019 and R3 to R5 are the legal heirs of the
deceased 2nd respondent.)
SRI.ANAND MAHADEVAN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY
HEARD ON 21.8.2025, THE COURT ON 27.08.2025 DELIVERED
THE FOLLOWING:
RFA 224/2018
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JUDGMENT
Dated : 27th August, 2025
The plaintiff in OS 51/2016 on the file of the Sub Court, Chavakkad 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 above suit for recovery of money. The plaint
schedule property belonging to defendants 1 and 2 was agreed to be sold to the
plaintiff for a consideration of Rs.2,10,000/- per cent and an agreement for sale in
that respect was executed on 24.1.2015. On the date of execution of the sale
agreement, a sum of Rs.20,00,000/- was paid to the defendants as advance.
Thereafter on 29.5.2015 and on 30.7.2015 another Rs.1,00,000/- each was paid to
the defendants. The period prescribed for the enforcement of the agreement was
till 23.12.2015. Later on, by mutual agreement, the period was extended till
23.6.2016. At that time, another Rs.3,00,000/- was also paid to the defendants and
thereby the total amount paid became Rs.25,00,000/-. According to the plaintiff, a
further sum of Rs.7,00,000/- was also given to the defendants for undertaking
some work in the said property. However, for the above Rs.7,00,000/- no receipt
was issued by the defendants. As per the terms of the agreement, the defendants
had to convince the plaintiff, the defendants' title, the extent of the property and
absence of encumbrance before executing the sale deed. According to the
plaintiff, he was always ready and willing to perform his part of the contract.
3. According to the plaintiff, he received a lawyer's notice dated
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6.6.2016 issued as per the instructions of one Sathyan, son of Adimakutty stating
that there had been a canal through the middle of the plaint schedule property for
draining water from the adjacent pond to the paddy field, that the said canal was
filled with soil and flow of water was stopped by the defendants. Thereafter, on
verification it was found that there was a canal through the middle of the plaint
schedule property and also that it was filled with soil by the defendants,
clandestinely. According to the plaintiff, the defendants misrepresented to the
plaintiff that the plaint schedule property is contiguous. The plaintiff agreed to
purchase the plaint schedule property and advanced a sum of Rs.32,00,000/- by
believing the representation made by the defendants that the plaint schedule
property is lying contiguous. The existence of a canal through the middle of the
property has adversely affected its utility and value. After receiving the notice
sent by Mr.Sathyan, the plaintiff inspected the property and found that there is an
outlet from the plaint schedule property and water was blocked due to obstruction
of drain water. When he inquired with the defendants, they demanded the plaintiff
to take the property in sale or else, the advance sale consideration will be
forfeited. The defendants persuaded the plaintiff to enter into sale agreement
fraudulently and suppressing the fact that there was a canal through the middle of
the plaint schedule property. If the plaintiff purchases the scheduled property, he
may have to be involved in unnecessary litigation. He may also not be able to
construct a convention centre in the said property. According to the plaintiff, he
has not committed breach of contract and that the defendants with dishonest
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intention deceived the plaintiff. Therefore, the plaintiff filed the suit seeking
return of Rs.32,00,000/- paid to the defendants.
4. The defendants 1 and 2 filed a written statement admitting the
execution of the sale agreement on 18.12.2015. However, according to the
defendants, the total amount received from the plaintiff was only Rs.25,00,000/-
and not Rs.32,00,000/- as claimed by the plaintiff. According to the defendants,
they were always ready and willing to execute the sale deed and it was the
plaintiff who committed breach of contract. They have also measured the
scheduled property with the help of village officer spending Rs.10,000/-. The
allegation that there was a canal through the middle of the plaint schedule
property for the flow of water is incorrect. The plaintiff knew that the plaint
schedule property was a soil filled land. The lawyer's notice was caused to be
issued by the plaintiff through Mr.Sathyan. The averment that the existence of the
canal has adversely affected the utility and value of the plaint schedule property
and that the plaintiff may not be able to construct a convention centre in that
property are false. The plaintiff entered into the sale agreement with the
defendants after inspecting the property and knowing about its nature. At that
time, there was no canal through the plaint schedule property. As demanded by
the plaintiff, the defendants evicted six tenants from the shop rooms in the plaint
schedule property, by paying them a sum of Rs.1,00,000/- each. By evicting those
tenants, the defendants lost a rent of Rs.15,000/- per month. Apart from that, the
defendants have demolished the building situated in the plaint schedule property.
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They also had to remit a building tax of Rs.12,000/- and the property tax
Rs.300/-. According to the defendants, in that respect, they have sustained a loss
of Rs.25,00,000/-. Therefore, the defendants prayed for dismissing the suit.
5. The trial court framed four issues. The evidence in the case consists
of the oral testimonies of PWs1 to 4, DW1, Exts.A1 to 13 and B1 to B3, C1 and
C1(a). After evaluating the evidence on record, the trial court dismissed the suit.
Aggrieved by the above judgment and decree of the trial court, the plaintiff
preferred this appeal.
6. Now the points that arise for consideration are the following :-
1.Whether the defendants 1 and 2 suppressed the existence of a
drainage passing through the middle of the plaint schedule property and
thereby induced the plaintiff to enter into a sale agreement ?
2.Whether the defendants are entitled to adjust any amount from the
advance amount paid by the plaintiff ?
3.Whether the impugned judgment and the decree of the trial court calls
for any interference in the light of the grounds raised in the appeal ?
7. Heard Sri.Sachin Ramesh, the learned counsel for the appellant and
Sri.Anand Mahadevan, the learned counsel for the respondents.
8. Admittedly, the plaint schedule property belongs to defendants 1
and 2. On 24.1.2015, the plaintiff entered into Ext.A1 sale agreement with
defendants1 and 2 agreeing to purchase the said property for a consideration of
Rs.2,10,000/- per cent. At the time of agreement, a sum of Rs.20,00,000/- was
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paid as advance. Thereafter, as per Ext.A2 agreement dated 18.12.2015, the
period of the agreement was extended till 23.6.2016 and the total amount paid till
then was admittedly Rs.25,00,000/-. According to the plaintiff, thereafter he has
paid a further sum of Rs.7,00,000/- for affecting some works in the plaint
schedule property. However, the defendants stoutly denied the above claim of the
plaintiff that a further sum of Rs.7,00,000/- was also paid to them.
9. The specific case of the plaintiff is that there was a canal passing
through the middle of the plaint schedule property for draining out rain water
from the western pond into the eastern paddy field and the same was filled with
soil by the defendants and the existence of such a canal was suppressed by the
defendants. According to the plaintiff, if he was aware of the existence of such a
canal, he would not have entered into Ext.A1 sale agreement, as his intention was
to construct the convention centre in the said property, for which the entire plaint
schedule property in a single plot is required. At the time of evidence, the
contention taken by the defendants is that the plaintiff was aware of the fact that
the scheduled property was filled up with soil. However, the defendants denied
the existence of a drainage through the plaint schedule property.
10. From the evidence of the Commissioner as PW4 and Ext.C1
commission report and Ext.C1(a) sketch it is crystal clear that there lies a pond on
the immediate western side of the plaint schedule property and a paddy field on
the immediate east and there was two outlets on the eastern and western sides of
the plaint schedule property, on almost its middle portion. The existence of those
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outlets clearly shows that there was a canal/drainage along the line of those
outlets and at the time of visit of the commissioner, the drainage was filled up
with soil by the defendants. Ext.A3 is the lawyer's notice issued by one Sathyan,
the owner of the property on the south western side of the plaint schedule
property. In the notice he alleged that there was a drainage through the middle of
the plaint schedule property to drain out rain water from the western pond to the
eastern paddy field and since the drainage was blocked by the defendants by
filling it with soil, water flooded in his property and also on the pathway lying on
the immediate west of the plaint schedule property, making his life miserable. At
the time of evidence, it is also revealed that the above Sathyan filed a suit against
the defendants as OS. 2195/2016 for restoration of the drainage closed by the
defendants. Ext.A7 to 9 are the certified copies of the plaint, written statement
and commission report involved in the above suit. Therefore, from the evidence
of PW4, Exts.C1 and C1(a) commission report and sketch as well as from
Exts.A7 to A9 documents, it is revealed that there was a drainage through the
middle of the plaint schedule property in east - west direction to drain out the
rain water from the western pond into the eastern paddy field and that
immediately before the execution of Ext.A1 sale agreement, the defendants filled
the said canal/drainage using soil.
11. At the time of arguments, the learned counsel for the defendants
would argue that the principle of caveat emptor applies in this case and it is the
duty of the plaintiff to examine and verify the lie and nature of the property
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before entering into a sale agreement. As I have already noted above from the
evidence on record it is revealed that even before Ext.A1 sale agreement was
executed, the scheduled property was filled up with soil so that the existence of
the drainage/canal was not visible for the naked eye. It is true that when the
Commissioner visited the property, he could locate two outlets on the eastern and
western ends of the plaint schedule property. However, to a person who visits the
plaint schedule property after it was filled up with soil, the existence of those
outlets need not be visible. In the above circumstance, the plaintiff cannot be
blamed for not taking note of the existence of the drainage in the plaint schedule
property, before entering into the sale agreement.
12. The defendants claim that, due to the breach of contract committed
by the plaintiff they have sustained loss to the tune of Rs.25,00,000/- and as such,
they are entitled to adjust the advance amount given by the plaintiff. However,
with regard to the quantum of loss sustained by the defendants, there is no
reliable evidence. According to them, a building containing six rooms situated in
the property was demolished at the instance of the plaintiff, after evicting all the
six tenants by paying them a sum of Rs.100000/- each. Further according to them,
they lost the rent received from the tenants and had to pay building tax and
property tax.
13. At the time of evidence, DW1 has no consistent case with regard to
the number of shop rooms present in the plaint schedule property. At one stage,
she claims that there were six shop rooms and at the instance of the plaintiff, the
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tenants were evicted by paying a sum of Rs.1,00,000/- each. However, the
defendants could not produce any documents to prove the existence of six shop
rooms in the scheduled property as claimed. Even the number of the shop rooms
allotted by the local authority are not disclosed. The names of the tenants who
were allegedly occupying the shop rooms were also not disclosed. Though the
defendants produced Exts.B1 to B3 rent receipts to prove that some tenants were
occupying the shop rooms, they are not in tune with the case pleaded. In the
written statement, at one place the defendant claims that they were getting a
monthly income of Rs.15,000/- from the tenants, at another place, the loss of rent
was stated as Rs.10,000/-. However, in Ext.B1, the monthly rent shown is only
Rs.800/-. In Ext.B2 the monthly rent shown is Rs.850/- and in Ext.B3 it is only
Rs.400/-. The rooms involved in Exts.B2 and B3 are thatched sheds. Thus the
total rent involved as per Exhibits B1, B2 and B3 is only Rs. 2,050/-. During the
examination of DW1 she claimed that out of the six shop rooms situated in the
plaint schedule property, two of them were workshops. According to her, the rent
received from the workshop was Rs.3,000/- each and the rent received from the
shop was Rs.2,000/- each. If so, the total rent will come to Rs. 14,000/-, which is
also not tallying with the total rent claimed in the written statement.
14. The claim of the defendants is that at the instance of the plaintiff,
they have demolished the building situated in the plaint schedule property and
thereby sustained a loss of Rs.15,00,000/-. However, there is absolutely no
evidence to prove the said claim. They have no consistent case with regard to the
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nature of the building which was in existence in the plaint schedule property.
Though the defendants have raised a further contention that they had to pay a sum
of Rs. 12,000/- towards building tax, no building tax receipts were produced. In
the above circumstances, the claim of the defendants that they have sustained
huge loss on account of the breach of contract committed by the plaintiff could
not be believed. The loss allegedly sustained by the defendants on account of the
alleged breach of contract by the plaintiff are special damages and as such, the
defendants could have proved the same by adducing evidence in that respect. In
the absence of any such reliable evidence, the claim that the defendants have
sustained a loss of Rs.25,00,000/- in that respect is liable to be rejected.
15. Moreover, as I have already noted above, in this case the defendants
entered into Exhibit A1 agreement with the plaintiff suppressing the existence of
a canal/drainage through the middle of the plaint schedule property, for the
passage of rain water from the western pond to the eastern paddy field. As noted
earlier, from Exhibit C1 commission report and the evidence of the
commissioner, it is revealed that the defendants filled soil in the plaint schedule
property, covered the drainage and thereby obstructed the passage of water from
the western pond to the eastern paddy field and as such, the property on the
western side got inundated and in that respect, one Sathyan has filed a suit for
mandatory injunction and the same is also pending. Since the defendants entered
into an agreement with the plaintiff suppressing the existence of the above
drainage, the plaintiff cannot be blamed for not performing Exhibit A1 contract.
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Therefore, on that ground also the defendants are not entitled to claim any
compensation from the plaintiff. In the above circumstance, the trial court was
not justified in holding that the defendants sustained a loss of Rs. 25,00,000/- and
hence they are liable to retain the advance amount of Rs.25,00,000/- paid by the
plaintiff.
16. Though the plaintiff claims that in addition to a sum of
Rs.25,00,000/- mentioned in Exhibit A1, a sum of Rs. 7,00,000/- was also paid
for developing the plaint schedule property, there is no reliable evidence in that
respect. Since payment of Rs.1,00,000/- each subsequent to the date of execution
of Exhibit A1 is also endorsed on the reverse side of the first page of Exhibit A1,
non mentioning of the above Rs.7,00,000/- in Exhibit A1 assumes significance.
The plaintiff has not offered any satisfactory explanation as to why the above
payment was not endorsed in Exhibit A1. In the above circumstance, the case of
the plaintiff that he has paid a further Rs.7,00,000/- to the defendants, after the
payment of Rs.25,00,000/- cannot be believed. Since the defendants admitted
receipt of Rs. 25,00,000/- from the plaintiff as advance sale consideration and I
have already noted above, the defendants have failed to prove any loss sustained
on account of the non performance of Exhibit A1 as claimed, they are liable to
repay the above Rs. 25,00,000/- to the plaintiff with reasonable rate of interest.
The defendants are withholding Rs.25,00,000/- belonging to the plaintiff for the
last more than 10 years. Now the money value has decreased considerably.
Therefore, I hold that interest at the rate of 6% per annum from the date of the
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suit till realisation will be a reasonable rate of interest to do justice to both sides.
In the above circumstance, this appeal is liable to be allowed and the impugned
judgment and decree of the trial court dismissing the suit is liable to be set aside
and the suit is liable to be decreed. Points answered accordingly.
17. In the result, this appeal stands allowed. The impugned judgment
and decree in O.S. No. 51 of 2016 on the file of the Sub Court, Chavakkad is set
aside. The suit is decreed and the plaintiff is allowed to realise a sum of Rs.
25,00,000/-, along with interest at the rate of 6% per annum from the date of the
suit till realisation. Considering the facts, I direct both parties to suffer their
respective costs.
All pending interlocutory applications stand dismissed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/23.8
