MADHUSOODHANAN Vs. SUDHA

JUDGEMENT

(1.) The appellant is the plaintiff in O. S. No. 25/2007 on the files of the Principal Munsiff's Court, Neyyattinkara and the appellant in A. S. No. 46/2008 on the files of the Sub Court, Neyyattinkara. The aforesaid suit was filed seeking a decree for specific performance of Ext.A1 contract entered into between the plaintiff and the defendant and for declaration of title and possession over the plaint schedule property. According to the plaintiff, pursuant to Ext.A1 agreement for sale, the plaintiff has given possession of plaint schedule property and thereafter, he has been in possession and enjoyment of the property as part of the performance of the contract. The agreement was entered into on 09/02/1990 and as per the agreement, the defendant agreed to sell the same to the plaintiff within a stipulated time for a total sale consideration of Rs.30,000.00. It is further averred that towards the sale consideration of Rs.30,000.00, he had paid Rs.2,000.00 and Rs.4,500.00 on 09/02/1990 and 09/05/1990 respectively to the defendant. The second payment was received by Mr. Chellappan Viswanathan on behalf of the defendant. Thereafter, he had remitted Rs.22,000.00 towards the loan availed by the defendant from the Kerala State Development Corporation for Scheduled Castes and Scheduled Tribes Limited, as part performance of the agreement. As per the agreement, the plaintiff should discharge the debt incurred by the defendant with the Kerala State Development Corporation for Scheduled Castes and Scheduled Tribes Limited and in compliance with the said condition, the appellant had remitted Rs.22,000.00 with the said Corporation, and the original sale deed was returned to the plaintiff and he, in turn, handed over the same to the defendant. Thus, the plaintiff has performed his part as per the agreement and he was ready and willing to purchase the property and he had already paid the full sale consideration as per the agreement. But, the defendant was not ready and willing to perform her part of the contract by executing the sale deed in favour of the plaintiff. On breach of contract, the plaintiff has issued Ext.A4 lawyer's notice on 19/07/1997 demanding specific performance of the agreement to the defendant; but she has not responded to the said notice. Hence, the suit was filed seeking the aforesaid relief.

(2.) In the written statement, the defendant admitted the execution of Ext.A1 agreement. But, she denied the averment that she was not ready and willing to perform her part of the contract. According to the defendant, the plaintiff failed to perform his part of the contract and the debt of the defendant towards the Kerala State Development Corporation for Scheduled Castes and Scheduled Tribes Limited was discharged by herself and not by the plaintiff. She has never handed over possession of the property to the plaintiff as part performance of the contract and the suit is barred by limitation also.

(3.) On the aforesaid pleadings, both parties adduced evidence consisting of oral testimony of PWs 1 to 6 and Exts.A1 to A7 and B1. No oral evidence was adduced by the defendant. After considering the evidence, on record, the Trial Court dismissed the suit on a finding that the suit is barred by limitation and there is no proof of the alleged possession of the plaint schedule property, other than the document marked as Ext.A1. In Ext.A1, only the right of taking usufructs is given to the plaintiff. In appeal, the Appellate Court also re - appreciated the aforesaid evidence, on record, and concurred with the findings of the Trial Court, as such, without any interference, and dismissed the appeal. Thus, the concurrent findings, whereby the Courts below dismissed the suit as well as the appeal, are challenged in this Regular Second Appeal.