K K PADMAKUMAR Vs. ABRAHAM EAPEN

JUDGEMENT

(1.) This appeal arises from the judgment and the decree passed in O.S.No.471 of 1995 on the file of Sub Judge, Mavelikkara. The suit was for specific performance of agreement for sale of the plaint schedule property. The appellant's plaint contains the following allegations. The plaint schedule property belonged to the original defendant (first respondent) , whose son and daughter are defendants 2 and 4/ respondents 2 and 4. On 17.5.1994 the plaintiff/appellant and the original defendant entered into an agreement for sale of the plaint schedule property. The price is Rs. 21, 000/- per cent. On the date of the agreement the appellant paid the original defendant Rs.25, 000/- in advance towards the sale consideration. The agreement was that within one week of disposal of a pending litigation in respect of the plaint schedule property the original defendant would inform in writing the appellant and within fifteen days thereafter the transaction would be completed. On 23.2.1995 and on 14.4.1995 the appellant paid the original defendant Rs.10, 000/- and Rs.5, 000/- respectively towards the sale consideration. The pending litigation, O.S.No.138 of 1994 on the file of the Munsiff, Chengannur was disposed of on 30.9.1995. But the original defendant did not inform the appellant about it. When the latter knew about it on 10.10.1995 he issued a notice demanding the original defendant to complete the transaction. He did not comply with it. During the pendency of the suit the original defendant alienated the property to the third defendant/third respondent in violation of the order of injunction. After the filing of the suit the original defendant died. The second respondent raised the following contentions in his written statement. There were differences of opinion between the original defendant and his children namely the second and fourth respondents. After the death of his wife the original defendant became ill and stubborn and he started living alone. But he was looked after by the second respondent. The appellant exploited the situation and prevailed upon the original defendant to execute an agreement for sale. There was no intention to act upon the document. The original defendant executed it only to teach his children a lesson. The father of the appellant was one of the defendants in O.S No.138 of 1994 filed by the second respondent against his father, original defendant. So the appellant was aware of the disposal of the suit. The second respondent prayed for dismissal of the suit. In his written statement the third respondent contended that it was not the plaint schedule property that was purchased by her; she entered into an agreement with the original defendant for purchase of 9 ' cents. The sale was to take place on 22.9.1997. A few days before the stipulated date she knew that the property was being proceeded against under the Revenue Recovery Act. So execution of the sale deed was postponed. The original defendant agreed to execute the sale deed if the third respondent issued a cheque for Rs.50, 000/-. The understanding was that if the amount payable to the government was discharged by him, the original defendant could encash a cheque. But he did not discharge the debt. The third respondent discharged the debt. She is a bona fide purchaser. The trial court found that the property cannot be identified though there was an agreement for sale between the appellant and the original defendant. Accordingly, it dismissed the suit.

(2.) The following points arise for consideration in this appeal.

(3.) Ext A1 is the agreement for sale entered into between the appellant and the original defendant. Notwithstanding the order of injunction, the original defendant executed a sale deed in respect of 9 ' cents in favour of the third respondent. It is contended by the latter the property purchased by her is not the one covered by Ext A1 agreement for sale. Ext B2 is the certified copy of the sale deed executed by the original defendant in favour of the third respondent. The original defendant had 10.10 ares in his ownership. The properties covered by Ext A1 and Ext B2 are comprised in the same Survey No.257/18. A commissioner was deputed by the trial court to identify the two properties. Ext C6 is the plan attached to the report. The commissioner identify the properties covered by Ext A1 and Ext B2. The property covered by Ext A1 is marked A G H I J K L and the property covered by Ext B2 M N O P J Q R I. The property covered by Ext B2 sale deed executed in favour of the third respondent takes in a portion of the property agreed to be sold to the appellant by Ext A1 agreement.