Judgment:
K.S. Radhakrishnan, J.
1. The main question that has come up for consideration in these cases is whether the trial Court was correct in decreeing the suit for specific performance on the basis of an oral agreement for sale. O.S. No. 56 of 1985 was a suit filed for specific performance of an oral agreement for sale. Suit was decreed against which A.S. No. 129 of 1989 was filed. A.S. No. 227 of 1990 arises out of O.S. No. 45 of 1986 which was a suit filed by the plaintiff in O.S. No. 56 of 1985 for an inj unction restraining alienation of the property in question. O.S. No. 46 of 1986 against which A.S. No. 228 of 1990 was preferred by the first defendant in O.S. No. 56 of 1985 was for injunction to remove certain illegal construction effected by the plaintiff in O.S. No. 56 of 1985. All the suits were jointly tried by the Sub Court, Palghat. Aggrieved by the judgment and decree of thetrial Court, all these appeals have been preferred by the first defendant in O.S. No. 56 of 1985. He filed A.S. No. 129 of 1989 along with second defendant in O.S. No. 56 of 1985.
2. I shall first deal with the facts in O.S. No. 56 of 1985 against which A.S. No. 129 of 1989 was filed. Plaint schedule property admittedly belongs to first defendant. Plaintiff and second defendant's father Sebastine were conducting business in the ground floor rooms bearing numbers 3/626 and 3/ 625 respectively of Alathur Panchayat. Plaintiff submitted he along with one advocate K.P. Gopalakrishnan of Alathur met the first defendant at his house between 6 and 6.30 p.m. on 3-6-1984 and an agreement was reached for sale of the plaint schedule property for a consideration of Rs. 60,000/- to the plaintiff and to execute sale deed on or before 31-12-1984 on payment of the entire sale consideration. Plaintiff was always ready and willing to perform his part of the contract. The first defendant however entered into an agreement with second defendant for sale of the plaint schedule property for a total consideration of Rs. 75,000/-. Realising that the plaintiff filed O.S. No. 235 of 1984 before the Munsiff's Court, Alathur for a prohibitory injunction which was later transferred to Sub Court, Alathur and numbered as O.S. No. 45 of 1986. Temporary injunction was granted by the Court below restraining the first defendant from assigning the property to second defendant. First defendant in O.S. No. 56 of 1985 filed O.S. No. 46 of 1986 before the Munsiffs Court, Alathur which was transferred and numbered as O.S. No. 45 of 1986. The suit was for a prohibitory injunction restraining the defendants from trespassing into the plaint schedule property.
3. First defendant resisted the suit for specific performance. According to him, the suit is not maintainable in law and the plaint schedule property exclusively belonged to him. Groundfloor rooms in the building are in the possession of the plaintiff and Sebastin. He denied the case of the plaintiff that the plaintiff and one advocate K. P. Gopalakrishnan came to his house and reached an agreement for sale of the plaint schedule property for an amount of Rs. 60,000/-. According to the plaintiff who was a lessee of plaint schedule property defaulted payment of rent quite often and the first defendant had issued notices againstthe plaintiff and Gopalakrishnan who stood as surety for prompt payment of the rent. First defendant stated one of the rooms in the plaint schedule building was leased out to the plaintiff on 13-3-1968 on a monthly rent of Rs. 30/-. Advoeate K. P. Gopalakrishnan stood as surety for the plain-tiffin the lease transaction. Plaintiff was not in the habit of paying the rent regularly to the first defendant. First defendant had to send various notices for realisation of rent. Further it was stated that he had already negotiated for sale of the property in favour of the second defendant on 17-9-1984 for a total consideration of Rs. 75,000/-. In order to establish the rival contentions parties adduced oral and documentary evidence. On the side of the plaintiff Yakub got himself examined as P.W. 1 and advocate Gopalakrishnan was examined as P.W. 2. Defendant was examined as DW-1. Plaintiff produced Exts. A1 to A7. Those documents were produced to show that the plaintiff was ready and willing to perform his part of the contract. On the side of the defendants Exts. B1 to B24 documents were produced.
4. The Court below after considering the entire oral and documentary evidence decreed the suit for specific performance holding that oral agreement was proved by the plaintiff. The Court also decreed the suit O.S. No. 45 of 1986 and granted a prohibitory injunction restraining the first defendant from executing the sale deed in favour of the second defendant. In the suit, O.S. No. 46 of 1986 the Court found that the plaintiff in O.S. No. 56 of 1985 has no right to enter the land which lies appurtenant to the building. It was also found that the first defendant Balakrishnan has got title over the entire plaint schedule property. It was also found that the plaintiff in O.S. No. 56 of 1985 had obtained permit from the first defendant for making construction in the plaint schedule property and that there is no evidence to show that construction made by the plaintiff has reduced its value.
5. As I have already indicated, the cardinal question to be decided is whether the plaintiff in O.S. No. 56 of 1985 has proved oral agreement for sale of the plaint schedule property for which the only evidence is the oral evidence of plaintiff and one K. P. Gopalakrishnan. Evidentiary value of oral agreement in a suit for specific performance and the nature of proof to establish the samewas considered by the apex Court in Ouseph Varghese v. Joseph Aley, (1969) 2 SCC 539. Let us examine the instant case in the light of the principle laid down by the apex Court in the above decision. In that case also the suit was based on an oral agreement. Trial Court decreed the suit. High Court reversed the judgment and decree of the trial Court. The judgment and decree of the High Court was confirmed by the apex Court. The apex Court held as follows :
'It appears likely that neither side has come forward with the true version. But before a Court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence. Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence. That apart, as mentioned earlier, in this case the oral testimony adduced in support of the agreement pleaded is a highly interested one. We do not think that the trial Court was justified in relying on that testimony for granting the decree prayed for. The trial Court itself observed in the course of its judgment (para 12) that there is no clear cut evidence for proving the terms of the oral contract which is alleged to have been entered into by the plaintiff and the first defendant. This finding alone should have been sufficient to non-suit the plaintiff. Therefore we agree with the High Court, though for reasons other than those mentioned by it that the plaintiff has failed to prove the agreement pleaded in the plaint.'
Facts reveal that room No. 3/626 was leased out to the plaintiff on a monthly rent of Rs. 30/- on 13-3-1968 through advocate K. P. Gopalakrishnan who stood surety for the defendant. Ext. Bl is the rent receipt executed by the plaintiff to the first defendant. Gopalakrishnan is a witness to Ext. B1. Ext. B2 is letter issued by advocate Gopalakrishnan to first defendant requesting him to lease out a room to the plaintiff. Above documents would positively show that it is on the recommendation of Gopalakrishnan the building was leased out to the plaintiff. Gopalakrishnan also stood as surety for the prompt payment of rent and held out that he would be responsible for rent arrears and other matters. These documents were executed in 1968. Facts reveal that plaintiff was irregular in paying the rent which ledfirst defendant issuing various notices. Exts. B3 to B22 range from the years 1970 to 1980. Ext.B23 is a certified copy of Rent Control Petition filed by the first defendant against the plaintiff before the Munsiffs Court, Alathur. Gopalakrishnan was second counter-petitioner in the case. The evidence tendered by Gopalakrishnan as P.W.2 has to be appreciated in the light of relationship he had with the plaintiff. Facts also reveal that Gopalakrishnan is a frequent visitor of the shop of the plaintiff and are thick friends.
6. Oral evidence adduced by P.W.2 itself would show that he is more interested in the plaintiff than the first defendant. The trial Court also found that P.W.2 is an interested witness. In paragraph 21 of the judgment the trial Court has stated as follows :
'Admittedly P. Ws. 1 and 2 are thick friends and P.W.2 used to chew betel leaves from the shop of P.W. 1. But there is no case for the first defendant that P.W.2 has got any enmity to the first defendant. It is also not suggested by the first defendant that if P.W.2 sweared in favour of P.W. 1 he will get any advantage from P.W.1.'
Above-mentioned finding of the trial Court itself would show that plaintiff and Gopalakrishnan are thick friends and apart from the evidence of P.W.2 and plaintiff there is absolutely no evidence in the case to prove the oral agreement. Trial Court felt P.W.2 has no enmity towards first defendant. That does not mean he is not interested in the plaintiff. Interested witness is one who is interested in the party or subject matter of the suit or persons who are concerned in the result of the suit and as such has some motive in tendering evidence. This is a case where Gopalakrishnan has shown interest in the plaintiff from the very inception of the lease of the shop room in the year 1968. He stood surety for the plaintiff in connection with the lease of the plaint schedule property. Lawyer notices were issued to the plaintiff and to advocate Gopalakrishnan when rent was in arrears. In the Rent Control Petition filed by the first defendant both the plaintiff and Gopalakrishnan figured as respondents. It was in respect of the same property that plaintiff and Gopalakrishnan said that there was an oral agreement executed by the first defendant in favour of the plaintiff. It is difficult to presume that Gopalakrishnan is no way interested in the transaction or that he has not shown anyinterest in favour of the plaintiff. It is true that Court shall not discard the evidence of a witness merely because he is interested. Court has to evaluate the evidence of an interested witness with extreme care and caution. In all civil proceedings there shall be competent witnesses. Even though preponderance of probability constitutes sufficient ground for decision in civil proceedings there must be cogent and reliable evidence to base a suit for specific performance on the basis of an oral agreement. I have already indicated that the apex Court in Ouseph Varghese's case (1969 (2) SCC 539) (supra) refused to grant a decree for specific performance on the basis of an oral agreement since there was no clear cut evidence for proving the terms of the oral agreement.
7. Counsel appearing for the appellants Sri P. B. Krishnan also highlighted inconsistency and contradictions in the evidence of P.W.1 and P.W.2. Reference was made to pages 14 and 16 of cross-examination of P.W. 1 as well as page 2 of cross-examination of P.W.2. There is material discrepancy in the evidence tendered by P.Ws.1 and 2. Assuming that those discrepancies are not very material, I am of the view that interest shown by Gopalakrishnan on the plaintiff would require much more proof to establish the terms of the alleged oral agreement. On the side of the respondent-plaintiff Sri T. R. Ravi submitted that all that the Court is expected to do when a case of oral agreement is set up is to examine the evidence and records and arrive at a finding as to the factum of agreement and decide whether agreement is acceptable in law. The trial Court which had the advantage of seeing the demeanour of the witnesses has accepted the evidence of P.Ws. 1 and 2. Therefore the appellate Court shall not disturb the said finding. Counsel made reliance on the decision of the apex Court in Brji Mohan v. Sugra Begum, (1990) 4 SCC 147 and contended that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. Counsel also relied on the decision in K. V. Subbaiah v. B. J. Guruvi Reddy, AIR 1999 SC 2958. Counsel submitted that suit for specific performance will lie on the basis of oral agreement. Counsel further submitted that P.W.2 is not an interested witness. Placing reliance on the decision of the apex Court in State of Rajasthan v. Smt. Kalki, AIR 1981 SC 1390 counsel submitted that even witness who isrelated cannot be termed as an interested witness. Counsel submitted that witness can be said to be interested only if his evidence derives some benefit in the result of a litigation. Counsel submitted that in the instant case oral agreement was proved with satisfactory evidence. Counsel also referred to the oral evidence of P.W.2 at length and submitted that evidence tendered is more probable.
8. I have already indicated that as held by the apex Court in Ouseph Varghese's case (1969 (2) SCC 539) (supra) rarely a decree for specific performance is granted on the basis of agreement supported by oral evidence. When such an oral agreement is sought to be proved by the plaintiff there must be cogent evidence. In the instant case, P.W2 Gopalakrishnan showed his interest by standing as surety for the plaintiff. He figured as a counter-petitioner along with the plaintiff in a rent control proceeding concerning the plaint schedule property. He was a frequently visitor to the shop of the plaintiff. Defendant Balakrishnan was examined as DW-1. It is true that he wanted to dispose of the property as he was away in Madras for quite some time. There is nothing to show that he is more interested in the second defendant than the first defendant. Both plaintiff and Mohanan were occupying the building nearby. Both of them were interested in purchasing the property. Facts reveal that Mohanan has offered higher amount than one alleged to have been offered by the plaintiff. Therefore first defendant was justified in selling the property to the person who offered higher consideration. There is nothing unusual in the conduct of the vendor to go in for a person who is offering higher price in a sale transaction. On going through the evidence of DW-11 find there is nothing unnatural in his evidence. Evidence shows that he is a man of words and a person who commands respect in the locality. After persuing the entire evidence I am of the view that there the Court below has committed an error in granting decree for specific performance only on the basis of oral evidence, that too on the basis of the interested testimony of P.Ws. 1 and 2. In such circumstances I have no hesitation to hold that the plaintiff has not succeeded in establishing the existence of an oral agreement to lay a suit for specific performance. The judgment and decree of the trial Court is accordingly set aside. A. S. No. 129 of 1989is accordingly allowed and the judgment and decree in O.S. No. 56 of 1985 are reversed. Consequently appeal A. S. No. 227 of 1990 is allowed and judgment and decree in O.S. No. 45 of 1986 are reversed. As far as O.S. No. 46 of 1986 is concerned. I confirm the judgment and decree of the trial Court. All the appeals are disposed of as above.