RADHA Vs. NARAYANAN NAIR

JUDGEMENT

(1.) Defendants 2 and 3 and other legal representatives of the deceased first respondent are the appellants. Suit property is 10 cents, which belongs to the plaintiff. He entered into an agreement with the first defendant for sale of the property. The suit was filed for recovery of possession on the strength of title alleging trespass. Contention is based on S.53A of the Transfer of Property Act. He also wanted specific performance of the agreement and paid court fee. Plaintiff contended that the first defendant committed breach of the contract.

(2.) Trial Court decreed the suit. Request of the first defendant to get refund of the advance amount was refused. Even though the appeal was dismissed, the appellate court ordered refund of the advance amount.

(3.) It is admitted by the parties that there was an agreement for sale on 8-4-1975 for a consideration of Rs. 750/- and Rs. 250/- was paid as advance. The fact that sale deed had to be executed on 18-4-1975 is also not in dispute. First defendant contended that on the date of agreement, he was put in possession by way of part performance. That fact is not admitted. Case of the plaintiff is that subsequently, possession was taken by force. It is the common case that a written agreement was executed in two parts and each took one copy. Under Explanation.1 to S.62 of the Evidence Act each part is primary evidence of the document. Though the first defendant has a case that the agreement itself provides that he was put in possession, that fact is denied. The agreement is not produced by either side. Plaintiff said that the agreement with him is lost. First defendant said that the agreement with him was produced before the police when the plaintiff complained of trespass, but it was not returned. Though he cited to examine the Sub Inspector to prove this fact, he did not pursue the prayer. That is the position.