Kerala High Court
Paul(Died) vs Prabhakaran on 23 July, 2025
RFA 458/2010 (Indigent)
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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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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:
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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.
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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
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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
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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
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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
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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
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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.
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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
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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.
