HABEEB JOHN Vs. T.P. ABDUL AZIZ

JUDGEMENT

(1.) The defendant in O.S.No.183 of 2004, on the file of District Munsif Court, Thiruvaiyaru, is the appellant in this Second Appeal. The respondent herein namely, T.P. Abdul Aziz, filed the said suit for recovery of a sum of Rs.35,000.00 with interest from the appellant.

(2.) The case of the respondent is that he owned the front portion of the house bearing Door Number-29, (New number 24), Railway Station Road, Ayyampettai. He entered into an agreement with one Mohammad Kasim, agreeing to sell the property for a sum of Rs.4,35,000.00. Later, the appellant herein had stepped into the shoes of the agreement holder and purchased the property vide sale deed, dtd. 19/4/2004. The brother of the plaintiff owned the back portion of the said house. The appellant herein raised a doubt that concurrence of the plaintiff's brother namely, Mohammed Zeyavudeen, must be obtained with regard to the enjoyment of the common rights to the said house. The appellant withheld a sum of Rs.35,000.00 promising to pay the same upon resolving of the dispute that involved the brother of the plaintiff. In this regard, a document dtd. 19/4/2004 (Ex.Al) was executed between the parties. The specific stand of the plaintiff is that even though, some legal action was anticipated from his brother Zeyavudeenn, nothing really turned out. Hence, the plaintiff caused to issue Ex.A2-legal notice dtd. 15/6/2004 formally calling upon the appellant to pay the balance amount of Rs.35,000.00. The appellant received the same and sent a reply, dtd. 23/6/2004 (Ex.B2) that since the issue has not been resolved, the question of releasing the withheld amount did not arise. In these circumstances, the suit came to be filed. The appellant filed written statement controverting the plaint averments and pointing out that Zeyavudeen had filed O.S.No.141 of 2004, on the file of the District Munsif Court, Thiruvaiyaru seeking the relief of permanent injunction. Therefore, the question of paying the said amount did not arise at all. Based on the divergent pleadings, the trial Court framed the necessary issues. The plaintiff examined himself as PW1 and marked Exs.Al to A3. The appellant's father was examined as DW1 and Exs.Bl and B2 were marked.

(3.) After considering the evidence on record, the trial Court by Judgment and Decree, dtd. 23/2/2015 dismissed the suit. Aggrieved by the same, the plaintiff filed A.S.No.37 of 2005 before the Principal Sub-Court, Thanjavur. The first appellate court, by the impugned judgment and decree, dtd. 11/7/2006, set aside the judgment and decree passed by the trial court and allowed the appeal and decreed the suit as prayed for. Challenging the same, the Second Appeal came to be filed.