S BRAHMANAND Vs. K R MUTHUGOPAL

JUDGEMENT

(1.) These two appeals by special leave impugn the common judgment of the High Court of Kerala rendered in First appeals AS Nos. 393/97 (E) and 281/97 (E) setting aside the decree made by the trial court in OS No. 647/95.

(2.) The appellants before us were the plaintiffs before the trial court in Original Suit No. 647/95 and the respondents were the respective defendants in the said suit. For the sake of convenience, the parties are hereinafter referred to as they were arrayed in the suit before the trial court i.e. as Plaintiffs and Defendants.

(3.) On 10.3.1989 an agreement was entered into between Defendants 1 and 2 (K.R. Muthugopal and V. Rajan, respectively) on the one hand, and Plaintiffs 1, 2 and 3 (S. Brahmanand, S. Vinod and G. Ratna Bai, respectively), on the other hand, for sale of the suit property which comprised two shops and one godown in Kozhikode. The preambulatory part of the agreement makes it clear that as on the date of the agreement a stranger, by name, Thazhekeepattu Moosakutty had filed two suits O.S. Nos. 98/87 and 99/87 before the II Additional Sub Judge, Kozhikode, alleging that there was an agreement to sell the suit property to him of which there was a breach, and seeking specific performance of the alleged agreement of the sale of the suit property. By the agreement of sale dated 10.3.1989 the parties specifically recorded that, the Defendants had not made any such agreement of sale of the suit property to the said Moosakutty. According to the Plaintiffs and the Defendants, the suit property was originally let out to Bhatt family (of which Defendants 3 & 4 are members) who refused to vacate it on the request made by the Defendants 1 and 2 (i.e. the landlords). A suit for eviction was filed against the said Bhatt family and a decree for eviction was made. Even before the decree could be executed, two suits had been filed in which Moosakutty alleged that the Plaintiffs had entered into an agreement to sell the suit property to him and sought specific performance. Agreement dated 10.3.1989 broadly referred to the developments and the fact that as on the date of the agreement an interim injunction had been issued by the civil court in O.S. Nos. 98/87 and 99/87 restraining the transfer of the suit property to third parties. The agreement shows that the parties were well aware of the pending litigation and yet the Plaintiffs (purchasers) under the agreement had offered to purchase the same for a total consideration of Rupees six lakhs only, which was accepted "subject to the restrictions contained in the interim orders mentioned above". Clauses (1), (3), (5) and (9) of the agreement are relevant and are reproduced as under: