MOHAMMED Vs. ABDARAHIMANKUTTY

JUDGEMENT

(1.) PLAINTIFF is the appellant in this Second Appeal. The suit is for specific performance of a contract of sale of a building. The building belongs to the first defendant. On 8-7-1118 he agreed to sell it to the plaintiff for Rs. 500/- and received from the plaintiff on that date Rs. 100 as advance purchase money. Subsequently, the first defendant refused to execute the sale deed. The plaintiff filed this suit on 7-7-1121 for specific performance of the contract depositing in court the balance purchase money of rs. 400. The second defendant is a tenant of the building under the first defendant. Defendants 3 to 8 are persons who reside in the building along with the second defendant. Defendants 1 and 2 contested the suit. The first defendant admitted the contract of sale, but contended that the plaintiff subsequently cancelled the contract. The second defendant contended that he was living in the house with his family under a coolicharth executed by him to the first defendant and that he was not liable to be evicted from the house. The trial court found that the plaintiff had not cancelled the agreement and gave a decree for specific performance. The relief against the second defendant was disallowed. It was held that the 2nd defendant could be evicted from the house only in a fresh suit instituted by the plaintiff after he acquired ownership of the same.

(2.) IN appeal filed by the first defendant the District court held that the delay in filing the suit raised a presumption that the plaintiff cancelled the agreement, and on the basis of this presumption and acting on the evidence of the first defendant that court held that the plaintiff was not entitled to a decree for specific performance. The suit was, therefore, dismissed with costs.

(3.) THE lower appellate court has relied on the evidence of Pw. 2 to show that the plaintiff cancelled the contract. Pw. 2 swears chat in Chingam 1120 he acted as a mediator on behalf of the plaintiff and asked the first defendant to execute the sale deed, that the latter then demanded Rs. 1500 as consideration, that he asked the plaintiff whether he would agree to pay Rs. 1000 and that the plaintiff did not agree to that. From this evidence the learned District Judge infers that the first defendant's case relating to the cancellation of the original contract must be true. I do not think that this inference can be drawn from the evidence of Pw. 2. His evidence only shows that the plaintiff was trying to avoid a litigation. It may be that for that purpose he was prepared to pay something more than what he had originally agreed to pay. That would not in any way amount to a cancellation of the contract.