[Cites 9, Cited by 0]
Kerala High Court
C.H.Raju vs Chorappan Chandran on 23 January, 2026
Author: Sathish Ninan
Bench: Sathish Ninan
2026:KER:5609
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 23RD DAY OF JANUARY 2026 / 3RD MAGHA, 1947
RFA NO. 542 OF 2017
AGAINST THE JUDGMENT DATED 31.07.2017 IN OS NO.161 OF 2006 OF
SUB COURT, THALASSERY
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APPELLANT IN RFA-DEFENDANT:
C.H.RAJU,
S/O.JANAKI AMMA, AGED 81, PENSIONER, RESIDING AT
"RAVI MANDIRAM", PAZHASSI AMSOM, MATTANNUR DESOM, P.O.
MATTANNUR, THALASSERY TALUK, KANNUR DISTRICT,
PIN-670 702.
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.P.M.NEELAKANDAN
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
RESPONDENT IN RFA-PLAINTIFF:
CHORAPPAN CHANDRAN,
S/O.KOMAPPAN, AGED 58, BUSINESS,
RESIDING AT AZHIKODE AMSOM, KACHERIPPARA DESOM,
KANNUR TALUK, KANNUR DISTRICT,
REPRESENTED BY POWER OF ATTORNEY HOLDER T.BALARAMAN,
S/O.T.RAMAN, AGED 60, BUSINESS,
RESIDING AT SARASWATHI SADANAM, PAZHASSI AMSOM,
MATTANNUR DESOM, THALASSERY TALUK,
KANNUR DISTRICT, PIN-670 702.
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RFA NO. 542 OF 2017 -2-
BY ADV SRI.R.RAMADAS
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
23.01.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
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R.F.A. No.542 of 2017
= = = = = = = = = = = = = = = = = =
Dated this the 23rd day of January, 2026
J U D G M E N T
Sathish Ninan, J.
The suit for specific performance of an agreement for sale
was decreed by the trial court. The defendant is in appeal.
2. The plaint schedule consists of two items, totalling to
77 cents. The 77 cents is comprised of 40 cents in Re-Survey
120/4 and the remaining 37 cents in Re-Survey 120/1C in Mattannur
desam, Kannur district. Ext.A1 agreement dated 19.11.2005 was
entered into between the plaintiff and the defendant, whereunder
the plaint schedule property was agreed to be conveyed by the
defendant to the plaintiff. The sale consideration fixed was
₹ 66,000/- per cent. As per the agreement, on measurement if it
is found that there is any deficit in extent, the consideration
payable was only for the available extent. If on measurement the
extent of property was found to be in excess, the consideration
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payable was only for 77 cents. The period fixed for performance
was 8 months. An amount of ₹ 1 lakh was paid towards advance sale
consideration on the day prior to the execution of Ext.A1
agreement, and a further amount of ₹ 2 lakhs was paid on the date
of Ext.A1. The agreement did not go through. According to the
plaintiff, the defendant refused to co-operate for measurement
whereas, according to the defendant, the property was measured,
but the plaintiff was not ready and willing to perform the
agreement.
3. The period fixed for performance expired on 18.07.2006.
The suit was filed on 08.08.2006. The defendant on entering
appearance filed IA 2297/2006 for a direction to the plaintiff to
deposit the balance sale consideration. On the same date the
plaintiff filed an application as IA 2296/2006, seeking
appointment of an Advocate Commissioner to measure out the
property with the assistance of a Taluk surveyor. The
applications were allowed by the court.
4. The plaintiff approached this Court in FAO 307/2006
challenging the order on IA 2297/2006 wherein he was directed to
deposit the sale consideration,. The Division Bench of this
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Court, as per judgment dated 21.12.2006, disposed of the appeal
on the consent of the parties, with the following directions: -
"1. The court below shall ensure that the Advocate Commissioner files his report
within three weeks from today. Appropriate directions in this regard shall be
issued by the court below to the Advocate Commissioner.
2. On receipt of the report, the court below shall afford sufficient opportunity to
the parties to raise objections, if any, to the same. The exact extent of land
available for transaction shall be ascertained and fixed by the court below in the
light of the report within two weeks from the date of receipt thereof.
3. The appellant/plaintiff shall deposit the balance consideration before the
court below within six weeks from the date when the court fixes the exact extent
of land available for sale.
4. The respondent/defendant shall execute the document on deposit/receipt of the
sum payable in terms of the direction to be issued by the court below."
5. Pursuant to the above, Ext.C1 report Ext.C2 plan were
submitted by the Commissioner on 09.01.2007. As per the
Commissioner's Report, the total extent available was only 61.35
cents. The defendant filed an application as IA 192/2007, to set
aside the Commissioner's Report and Plan. The application was
dismissed by the trial court. The defendant filed an application
as IA 1030/2007 seeking review of the order. The said application
was dismissed on 27.06.2007. In the meantime, the plaintiff
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deposited the entire balance consideration on 04.04.2007.
6. The order dismissing the application to set aside the
commission report was challenged before this Court by the
defendant, in W.P.(C) No.20915/2007. As per judgment dated
10.07.2007, this Court set aside the Commissioner's Report and
directed fresh measurement. Thereafter, the Commissioner filed
Ext.C3 report and Ext.C4 plan, again identifying the extent of
property as 61.35 cents. The report and plan were set aside by
the trial court. The further report and plan viz. Ext.C5 and
Ext.C6 again reported the same extent. They were also set aside
by the trial court. Thereafter the Commissioner filed Ext.C7
report and Ext.C8 plan reporting the extent of the property,
including a disputed extent of 39.5 cents in R.S. 120/1C, as
100.5 cents. The said report and plan were also set aside by the
trial court. This was followed by Exts.C9 report and C10 plan
identifying the extent of property to be 70.5 cents. The extent
of property was clarified by the Advocate Commissioner by
submitting a further report Ext.C11, in tune with Exts.C9 and
C10. The report and plan were accepted by the Court and a decree
for specific performance was passed.
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7. We have heard Sri.S.V.Balakrishna Iyer, the learned
Senior Counsel for the appellant-defendant and Sri.T.Krishanunni,
the learned Senior Counsel for the respondent-plaintiff.
8. The argument of the learned Senior Counsel for the
appellant is that, the trial court failed to consider the
readiness and willingness of the plaintiff, thereby failing to
exercise the jurisdiction vested in the Court.
9. As could be noticed from the sequence of events, the
judgment of this Court in the FAO forecloses any contention of
the defendants with regard to the readiness and willingness of
the plaintiff till the date of passing of the FAO judgment. This
is for the reason that the judgment is one passed on consent. The
defendant agreed to convey the property to the plaintiff on the
terms as mentioned therein. Therefore, the lack of readiness and
willingness of the plaintiff, if at all any till then was waived
by the defendant. Therefore, pondering into the readiness and
willingness of the plaintiff to a point of time prior to the date
of the judgment in FAO is of no relevance. All that needs to be
considered is, whether the plaintiff has complied with the
directions in the judgment in FAO.
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10. We have noticed that, as soon as the extent was
ascertained by the Court pursuant to the judgment of this Court
in FAO, the plaintiff deposited the balance sale consideration
for the said extent(61.35 cents), within the time stipulated in
the judgment. Thereafter the proceedings got dragged, on the
objections of the defendant with regard to the extent. The
plaintiff cannot be faulted for the same. He had duly complied
with the directions in the FAO judgment. Finally, based on
Exts.C9 report and C10 plan, the Court has accepted the extent of
the property as 70.50 cents and granted a decree for the same.
The senior counsel for the respondent-plaintiff would, by
referring to Exts.C1 report and C2 plan attempted to impress upon
this Court that the actual extent of the property is only 61.37
cents as identified therein and that the defendant had destroyed
the existing boundary on the southern side and has raised the
dispute regarding the extent. The learned senior counsel argued
that for the sake of a quietness of the issue the plaintiff did
not venture to dispute further regarding the extent. While we
notice that the commissioner has given some indications about
such attempt, the plaintiff has not attempted to discredit the
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measurement under Exts.C9 and C10. Even the commissioner is not
examined. Thus we concur with the trial court in having accepted
the extent as 70.50 cents. On the passing of the decree, the
plaintiff deposited the balance consideration for the remaining
extent of 9.15 cents.
11. The learned Senior Counsel for the appellant argued
that, pending the litigation there has been steep rise in the
land value. The value went up by several times. The delay
occurred not due to any fault on the part of the defendant, but
was on account of the time taken for ascertaining the correct
extent of property. The defendant being not responsible for the
delay, he shall not be made to suffer, it is argued. The
appellant has filed an application as IA 1/19 under Order XLI
Rule 27 CPC seeking production of registration copy of a Sale
Deed bearing No.1630 dated 13.03.2017. By production of the sale
deed, the attempt is to bring to the notice of this Court the
fact that the land value for similarly situated land in the year
2017 was ₹10,35,000/- per cent. Therein the extent of property
was 40 cents. The rate fixed under Ext.A1 is only ₹ 66,000/-.
Since the delay occurred due to no fault of the defendant, he is
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entitled for a reasonable value, which is to be reckoned with
reference to the said document, it is argued. Learned Senior
Counsel relied upon series of decisions of the Apex Court in
Gobind Ram v. Gian Chand, (2000) 7 SCC 548, A.C. Arulappan v. Ahalya Naik (2001) 6 SCC 600,
Satya Jain (Dead) Through Lrs. And Others v. Anis Ahmed Rushdie (Dead) Through Lrs. And
Others (2013) 8 SCC 131, Pratap Lakshman Muchandi v. Shamlal Uddavadas wadhwa and Ors
(2008) 12 SCC 67, Rajinder Kumar v. Kuldeep Singh and Ors (2014) 15 SCC 529, Zarina Siddiqui
v. A. Ramalingam Alias R. Amarnathan (2015) 1 SCC 705, Nanjappan v. Ramasamy and Anr
(2015) 14 SCC 341, K. Prakash v. B.R. Sampath Kumar (2015) 1 SCC 597, Krishan Gopal v.
Gurmeet Kaur (Dead) Through Lrs. And Others (2025 SCC OnLine SC 1438), to point out
that instances are umpteen wherein the rise in prices have been
duly reckoned and the consideration was re-fixed by the Court, or
the vendor was adequately compensated. He prays for scaling up
the price.
12. With respect to 61.35 cents, which is the extent
identified under Exts.C1 and C2, the plaintiff has deposited the
value of the sale consideration at the agreed rate of ₹ 66,000/-
per cent within the time stipulated by this Court in the judgment
in FAO. Therefore, there could not be any grievance for the
defendants with regard to the consideration for the said extent.
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The total extent identified by the Advocate Commissioner as per
Exts.C9 and C10 is 70.5 cents. With regard to the balance extent
of 9.15 cents (70.5 - 61.35), the defendant could be given the
present value of the property. It would adequately redress his
grievance. At our request the parties have provided present fair
value of the property.
13. The fair value notification is of the year 2023. Going
by the notification, for property situated in Survey No.120/1C
and having road access, the fair value fixed is ₹6,60,000/- per
Are. The fair value of property with road access, situated in
Survey No.120/4 is also ₹ 6,60,000/- per Are. Survey No.119 is
situated on the immediate western side of the plaint schedule
property. The fair value notified for the same is ₹ 9,90,000/-
per Are. Fair value is the minimum value for the property in the
assessment of the Government. It is common knowledge that
transactions take place at a much higher value. The plaint
schedule property lies adjacent to a municipal road on the
eastern side. The property is comprised in Survey Nos.120/1C and
120/4, and lie as a single block. On its immediate western side
is the property in Survey No.119. Having due regard to these
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facts, coupled with the value given in the sale deed of the year
2017 which is produced by the appellant, we deem it appropriate
to reckon the value of the 9.15 cents at ₹ 7,50,000/- per cent.
Thus, we hold that the defendant is entitled for ₹ 68,62,500/-
towards the value of the 9.15 cents.
14. The sale consideration for the 61.35 cents was deposited
on 04.04.2007. The amount was transferred to an interest bearing
Bank account. Portion of the interest that accrued thereon was
withdrawn by the plaintiff. The further interest accrued thereon
can also be withdrawn by the plaintiff. Considering the entire
facts, we are of the opinion that the plaintiff is to be required
to pay interest on the original deposit amount(ie: the balance
sale consideration deposited on 04.04.2007) at the rate of 9% per
annum from 04.04.2007 till the date of decree. The interest is
awarded reckoning the interest that would have accrued on the
deposit and also bearing in mind the escalation of land value.
Resultantly, we find that the plaintiff shall be, in
addition to the amount of ₹ 38,22,351/-in deposit, be liable to
pay to the defendant interest at the rate of 9 % on such amount
(₹ 38,22,351/-) from 04.04.2007, till this date. So also, the
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plaintiff shall be liable to pay to the defendant an amount of
₹ 68,62,500/-. The amounts as above shall be paid within a period
of six weeks from today. On deposit of the amounts as above, the
defendant shall execute conveyance of the property as was
directed by the trial court. The decree and judgment of the trial
court will stand modified to the above extent. In all other
respects, the decree and judgment of the trial court will stand
affirmed. It is noticed that the balance court fee payable in the
suit remains unpaid. Plaintiff to pay the same along with the
deposit of the balance sale consideration.
The appeal is allowed as above.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
