CHANDANAKUNNUMMEL GOPALAN ADIYODI Vs. MADHUVANATH BALAN

JUDGEMENT

(1.) Defendant in O.S. No. 167 of 1980 on the file of the Court of the Munsiff of Kozhikode is the appellant in this Second Appeal. Respondent is the plaintiff in the suit which was instituted for specific performance of Ext. A1 agreement executed by the appellant to sell the plaint schedule property in favour of the plaintiff respondent. It is averred in the plaint that on 17-3-1978 the appellant-defendant executed an agreement (Ext. A 1 ) in favour of the respondent, agreeing to sell the plaint schedule property measuring 90 cents for a sum of Rs. 5,000/-, that a sum of Rs. 2,000/- was paid as advance that, that towards the balance sale consideration a sum of Rs. 1,000/- was paid by the plaintiff and a sum of Rs. 2,000/- was paid by the one Moideenkoya (PW 4) who owned money to the plaintiff and that in spite of demand the appellant did not execute a sale deed and convey the property to the plaintiff respondent.

(2.) The appellant resisted the suit and contended inter alia that he has not executed the agreement, that the payment of Rs. 2,000/- as advanced and Rs. 3,000/- as balance sale consideration is not true and correct, that he had borrowed a sum of Rs. 2,000/- from the plaintiff on 17-3-1978 and as security for the loan the titled deed of the suit property was handed over to the plaintiff, that a sum of Rs. 1,500/- has been repaid and that the plaintiff is not entitled to a decree for specific performance.

(3.) The evidence in this case consists of oral testimony of PWs. 1 to 4 and DW 1 and documentary evidence of Exst. A 1 to A4, B 1 to B6 and X-1 . The trial court on an analysis of the evidence held that the agreement (Ext. A 1 ) was executed by the appellant, defendant, that only a sum of Rs. 2,000/- was paid by the plaintiff, that a sum of Rs. 3,000/- is payable towards the sale consideration and that the plaintiff is entitled to seek specific performance of the agreement (Ext. A 1 ). The suit was accordingly decreed on 26-11-1981. The lower Appellate Court by judgment and decree dated 26-9-1988 dismissed the appeal A.S. No. 30 of 1982 filed by, the defendant-appellant and affirmed the decision of the trial court. Hence this second appeal.