KADER PATHU Vs. AYISHA GANI

JUDGEMENT

(1.) The defendants in the original suit are the respondents. The suit came to be filed for the relief of specific performance directing the defendants to execute a sale deed in terms of the suit agreement for sale dated 12.10.1992 allegedly executed by the first defendant agreeing to sell the suit property in favour of K.P.M. Fakkir Ahamed, the father of the plaintiffs. The defendants resisted the suit contending that no such sale agreement was executed by the first defendant; that the said document could have been created with the intention of grabbing the suit property and that the relief of specific performance could not be granted when the plaintiffs approached the court after a lapse of 13 years without taking any steps to proceed with the transaction on the basis of the suit sale agreement. The plaintiffs had also taken a plea that the first defendant, at the time of execution of the sale agreement, also handed over possession of the suit property in part performance of the contract. The said contention was also denied by the defendants.

(2.) In the trial, three witnesses were examined as PWs. 1 to 3 and 12 documents were marked as Exs. A1 to A12 on the side of the plaintiffs, whereas two witnesses were examined as DWs. 1 and 2 and 12 documents were marked as Exs. B1 to B12 on the side of the defendants.

(3.) The learned trial Judge, on an appreciation of evidence came to the conclusion that the suit agreement for sale produced as Ex. A1 could not be true and it should have been fabricated; that the suit for specific performance was also time barred; that the claim of the plaintiffs that their father K.P.M. Fakkir Ahamed got possession of the suit property on the date of the suit sale agreement in part performance of the contract for sale was also not substantiated; that the defendants were able to prove that the property was purchased by the second defendant from the first defendant under a sale deed dated 05.08.2004 executed by the first defendant through her power agent Mohammed Ali under Ex. B7; that there after the property was in possession and enjoyment of the second defendant and that therefore, the claim of the plaintiffs that their father was in possession and after him they were in enjoyment of the suit property as agreement holders and they were entitled to the relief of specific performance, based on Ex. A1-Agreement for sale could not be sustained. Accordingly, the learned trial Judge, by a judgment and decree dated 16.03.2007 dismissed the suit O.S. No. 10/2005 filed by the plaintiffs for the relief of specific performance.