S R BALAKRISHNAN Vs. YAKOOB

JUDGEMENT

(1.) The main question that has come up for consideration in these cases is whether the Trial Court was correct in decreeing the suit for specific performance on the basis of an oral agreement for sale. O.S.No. 56 of 1985 was a suit filed for specific performance of an oral agreement for sale. Suit was decreed against which A.S.No. 129 of 1989 was filed. A.S.No. 227 of 1990 arises out of O.S.No. 45 of 1986 which was a suit filed by the plaintiff in O.S.No. 56 of 1985 for an injunction restraining alienation of the property in question. O.S.No. 46 of 1986 against which A.S.No.228 of 1990 was preferred by the first defendant in O.S.No. 56 of 1985 was for injunction to remove certain illegal construction effected by the plaintiff in O.S.No. 56 of 1985. All the suits were jointly tried by the Sub Court, Palghat. Aggrieved by the judgment and decree of the Trial Court, all these appeals have been preferred by the first defendant in O.S.No. 56 of 1985. He filed A.S.No. 129 of 1989 along with second defendant in O.S.No. 56 of 1985.

(2.) I shall first deal with the facts in O.S.No. 56 of 1985 against which A.S.No. 129 of 1989 was filed. Plaint schedule property admittedly belongs to first defendant. Plaintiff and second defendant's father Sebastian were conducting business in the ground floor rooms bearing numbers 3/626 and 3 / 625 respectively of Alathur Panchayat. Plaintiff submitted he along with one advocate K.P. Gopalakrishnan of Alathur met the first defendant at his house between 6 and 6.30 p.m. on 3-5-1984 and an agreement was reached for sale of the plaint schedule property for a consideration of Rs.60,000/- to the plaintiff and to execute sale deed on or before 31-12-1984 on payment of the entire sale consideration. Plaintiff was always ready and willing to perform his part of the contract. The first defendant however entered into an agreement with second defendant for sale of the plaint schedule property for a total consideration of Rs.75,000/- Realising that the plaintiff filed O.S.No. 235 of 1984 before the Munsiff's Court, Alathur for a prohibitory injunction which was later transferred to Sub Court, Alathurand numbered as O.S.No. 45 of 1986. Temporary injunction was granted by the court below restraining the; first defendant from assigning the property to second defendant. First defendant in O.S.No. 56 of 1985 filed O.S.No. 46 of 1986 before the Munsiff's Court, Alathur which was transferred and numbered as O.S.No. 45 of 1986: The suit was for a prohibitory injunction restraining the defendants from trespassing into the plaint schedule property.

(3.) First defendant resisted the suit for specific performance. According to him, the suit is not maintainable in law and the plaint schedule property exclusively belonged to him. Groundfloor rooms in the building are in the possession of the plaintiff and Sebastian. He denied the case of the plaintiff that the plaintiff and one advocate K.P. Gopalakrishnan came to his house and reached an agreement for sale of the plaint schedule property for an amount of Rs. 60,000/-. According to the plaintiff who was a lessee of plaint schedule property defaulted payment of rent quite often and the first defendant had issued notices against the plaintiff and Gopalakrishnan who stood as surety for prompt payment of the rent. First defendant stated one of the rooms in the plaint schedule building was leased out to the plaintiff on 13-3-1968 on a monthly rent of Rs.30/-. Advocate K.P. Gopalakrishnan stood as surety for the plaintiff in the lease transaction. Plaintiff was not in the habit of paying the rent regularly to the first defendant. First defendant had to send various notices for realisation of rent. Further it was stated that he had already negotiated for sale of the property in favour of the second defendant on 17-9-1984 for a total consideration of Rs. 75,000/-. In order to establish the rival contentions parties adduced oral and documentary evidence. On the side of the plaintiff Yakub got himself examined as P.W.1 and advocate Gopalakrishnan was examined as P.W.2. Defendant was examined as D.W.1. Plaintiff produced Exts.A1 to A7. Those documents were produced to show that the plaintiff was ready and willing to perform his part of the contract. On the side of the defendants Exts.B1 to B24 documents were produced.