Decided on September 16,2003

BRAHMANAND Respondents


- (1.) These two appeals are preferred separately by defendants 3 and 4 and 1 and 2 respectively in O.S. No. 647 of 1995 of the Subordinate Judges Court, Kozhikode. Respondents 1 to 3 in both these appeals are the plaintiffs in the suit.
(2.) The suit was instituted for specific performance of an agreement for sale (Ext. A1) in respect of the suit schedule property consisting of two shop rooms and a hall / godown. It was alleged in the plaint that the suit property belonged to defendants 1 and 2; while so, they were restrained from alienating the suit property by an order of injunction passed in two injunction suits, O.S. Nos. 98 and 99 of 1987 of the Kozhikode Sub Court, filed by one Moosakutty; defendants who were interested in disposing of the property approached the plaintiffs who were also interested in purchasing the same; accordingly on 10.3.1989 Ext. A1 agreement was executed between plaintiffs and defendants 1 and 2, stipulating a total sale consideration of Rs. 6 lakhs out of which Rs. 22,000/- was readily paid as advance; since the order of injunction was in force, no definite date could be fixed for performance of the mutual obligations under the agreement; instead it was mentioned that the deed of sale will be executed as soon as the injunction stood vacated; both the suits were dismissed on 10.6.1992; close on the heels of dismissal of the two suits, a fresh suit O.S. 382 of 1992 was instituted by one Latha, sister of defendants 3 and 4; the Court passed an order directing maintenance of status quo in respect of the suit property against defendants 1 and 2 who were defendants in that suit; plaintiffs were never informed by defendants regarding the passage of that order. When the performance of the obligations under the agreement for sale was delayed indefinitely, plaintiffs sought for possession of the property and accordingly they were put in possession of the godown portion of the suit property having door No. 10/1008 by defendants 1 and 2 through one Dandayudhan, their duly constituted power - of - attorney holder; while matters stood as above, on 31st of August, 1995 defendants with the help of certain others broke open the locks of the godown building and trespassed into the plaint schedule properties; at that time only the plaintiffs came to know that defendants 1 and 2 in gross violation of Ext. A1 had already executed deeds of sale in favour of defendants 3 and 4; they at all relevant times have been ready and willing to perform all their obligations under the agreement and are entitled to have the agreement enforced through court.
(3.) Through their written statement defendants 1 and 2 contended that Ext. A1 agreement was a fabricated document and that there never has been any agreement between them and the plaintiffs for sale and purchase of the suit properties. They denied the averment that the godown building was handed over to the plaintiffs in pursuance to Ext. A1 agreement and the further averment that the same was done through Dandayudhan, power - of - attorney holder. They contended further that the power - of - attorney in favour of Dandayudhan stood already cancelled on account of his dishonesty, that he is presently colluding with the plaintiffs out of his antipathy and that the present suit is the result of that collusion and that Ext. A1 document has been fabricated by making use of certain signed blank papers which defendants 1 and 2 had left with Dandayuhan in connection with litigations.;

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