BALAKRISHNA MENON Vs. GOPALA MENON

JUDGEMENT

(1.) The defeated plaintiff in a suit for specific performance is the appellant before this Court. The pointed question that arises for consideration before this Court is whether after a lapse of near 40 years of the execution of the agreement of sale, this Court should grant a decree for specific performance in favour of the appellant/plaintiff. The success of the plaintiff in this appeal would depend only if multiple points are found in his favour.

(2.) The present appeal, AS No.919/1996, arises from the judgment and decree dtd. 31/10/1992 in OS No.193/1988 on the files of Additional Subordinate Court, Irinjalakuda. The above OS was disposed of along with OS No.364/1986, which was filed by respondents 3 to 6 herein, who are defendants 3 to 6 in OS No.193/1988. The appellant herein was the 1 st defendant in OS No.364/1986. Even though, an appeal was preferred as AS No.905/1995, before this Court, the same was dismissed for default as per judgment dtd. 21/3/2013. Till today it is not restored to file. The impact of the dismissal of the AS No 905 of 1998 for default will be discussed later in this Judgment.

(3.) OS No.364/1986 was filed for an injunction against the plaintiff in OS No.193/1988 from trespassing into the plaint schedule property. After two years on filing of OS No 364/1986, the plaintiff in OS No.193/1988 claimed specific performance of Ext.A2 agreement executed between the plaintiff and Gopala Menon and Kochu Govinda Menon who are defendants 1 and 2, respectively. Plaintiffs in OS No.364/1986 are the assignees from defendants 1 and 2. Their assignments were in the year 1986. Apprehending that the plaintiff in OS No.193/1988 will trespass into the property and disturb their peaceful possession, OS No.364/1986 was filed.