IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 242 of 1992(D)
1. PARAMU
... Petitioner
Vs
1. KALLYANI
... Respondent
For Petitioner :SRI.MPR.NAIR
For Respondent :SRI.V.BHASKARA MENON
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :18/06/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO.242 OF 1992
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Dated this the 18th day of June, 2007
JUDGMENT
First defendant in O.S.354/1983 on the file of
Munsiff Court, Irinjalakuda is the appellant. On
the death of the first appellant, respondents 5 and
7, who were the original defendants 2 and 5 were
transposed as additional appellants. On the death
of second respondent, respondents 4 to 14 were
impleaded as the legal heirs. Plaint schedule
property is 27 = cents in survey No.469/2 of
Kalloor Thekkummury Village. It admittedly
originally belonged to Govindan. First respondent
is the wife and second respondent her brother and
third respondent, the son of another brother of the
first respondent. Respondents claim title to the
plaint schedule property under Ext.A1 settlement
deed executed by Govindan in their favour on
26.8.1970. They contended that respondents have no
manner of right over the plaint schedule property
S.A.242/1992 2
but taking advantage of the absence of
respondents, defendants trespassed into the plaint
schedule property and forcibly put a hut therein
and they have no right to do so and therefore they
are entitled to get a decree for recovery of
possession with mesne profits. The defendants in
the written statement admitted the title of
Govindan but contended that under Ext.A1 settlement
deed plaintiffs did not derive any right or title
to the property. It was contended that Govindan had
entered into an oral agreement for sale with the
first defendant and after receiving Rs.1000/- as
part of the sale consideration, Ext.B1 the original
title deed of the plaint schedule property was
handed over to the first defendant and put him in
possession of the property and eversince 1969 first
defendant has been in possession of the plaint
schedule property. It was further contended that as
per the agreement for sale, sale price was fixed
S.A.242/1992 3
at Rs.56/- per cent and it was agreed that after
measuring the property and paying the balance sale
consideration the sale deed will be executed and
defendants are in possession of the property under
the agreement for sale and plaintiffs are not
entitled to the decree sought for.
2. Learned Munsiff framed the necessary issues.
On the side of the plaintiffs, third plaintiff was
examined as PW1 and Advocate Commissioner who
submitted Ext.C1 report was examined as PW2.
Ext.A1 registration copy of the settlement deed was
also marked. On the side of the defendants, first
defendant was examined as DW1 and three witnesses
who were the alleged mediator and person allegedly
present at the time of oral agreement for sale were
examined. Ext.B1 was also marked. Learned Munsiff
on the evidence found that plaintiffs have no valid
explanation as to how first defendant came into
custody of Ext.B1 if not under the oral agreement
S.A.242/1992 4
for sale set up by him. Learned Munsiff also found
that evidence of Dws. 2 to 4 probabilise the case
of oral agreement for sale spoken to by DW1. It
was then held that Ext.A1 settlement deed was
executed thereafter fraudulently by Govindan and
plaintiffs did not derive any title to the property
and therefore the plaintiffs are not entitled to
the decree for recovery of possession sought for.
The suit was dismissed. Plaintiffs challenged the
decree and judgment before Sub Court, Irinajalakuda
in A.S.29/1986. Learned Sub Judge on
reappreciation of evidence found that Ext.A1
settlement deed establish title of the plaintiffs.
Learned Sub Judge on reappreciation of evidence
found that the oral agreement for sale pleaded and
sought to be proved are different and the
defendants cannot resist the claim for recovery of
possession under Section 53A of Transfer of
Property Act also. A decree for recovery of
S.A.242/1992 5
possession as sought for was granted. It is
challenged in the Second Appeal.
3. The Second Appeal was admitted formulating
the following substantial questions of law.
1) Are not the plaintiffs in a suit for
recovery of possession bound to produce the
original of the title deed on the basis of which
they claim title to the property?
2) Are the plaintiffs in a suit based on
title entitled to the relief for recovery of
possession on the basis that plaintiffs have a
better title than that of the defendants?
3) Is not the possession of the original title
deed with the defendants conclusive evidence of
possession on the strength of title?
4. Learned counsel appearing for the appellants
and respondents were heard.
5. The argument of the learned counsel
appearing for the appellants was that the first
S.A.242/1992 6
appellate court did not properly appreciate the
evidence and the fact that there is no valid
explanation for the plaintiffs as to how the
defendants came into custody of Ext.B1 otherwise
than by the agreement for sale set up by them was
not appreciated. It was argued that evidence of
Dws.2 to 4 who were present at the time of the
oral agreement by the first defendant with
Govindan, establish that defendants were put in
possession of the property after receiving part of
the sale consideration of Rs.1000/- and thereafter
Govindan is not entitled to execute Ext.A1
settlement deed in favour of the plaintiffs and
eventhough it was fraudulently executed,
plaintiffs did not derive any title to the
property. It was vehemently argued by the learned
counsel appearing for the appellants that the
evidence on record establish that defendants have
been in possession of the property from 1969
S.A.242/1992 7
onwards and in such circumstances, a decree should
not have been granted by the first appellate court.
6. Learned counsel appearing for the contesting
respondent argued that the first appellate court
has appreciated the evidence in the proper
perspective and an oral agreement for sale as
alleged in the plaint is different from the oral
agreement sought to be proved by the evidence of
Dws.1 to 4 and there is no evidence to establish
oral agreement for sale. It was also argued that
Ext.A1 settlement deed executed by Govindan
establish the title of appellants and as the
defendants are only claiming that there is an
agreement for sale which was not established,
plaintiffs are entitled to the decree for recovery
of possession granted by the first appellate court
and no substantial question of law in fact arises
in the appeal and the Second Appeal is only to be
dismissed.
S.A.242/1992 8
7. It is admitted case that plaint schedule
property originally belonged to Govindan. It was
specifically contended in the plaint that Govindan
executed Ext.A1 settlement deed whereunder he
transferred his rights in favour of his wife, the
first plaintiff and second plaintiff her brother
and third plaintiff their nephew and plaintiffs
have thus title to the plaint schedule property.
There was no specific denial of execution of
Ext.A1 settlement deed. Even when DW1 was
examined, there was no case that Govindan did not
execute Ext.A1 settlement deed. On the other hand,
what was contended was that Ext.A1 was fraudulently
executed by Govindan, after he entered into an
alleged agreement for sale with the first
defendant. Even if Govindan had entered into an
agreement for sale, that will not vitiate Ext.A1
settlement deed so long as no sale deed was
executed in favour of first defendant. Though it
S.A.242/1992 9
was vehemently argued by learned counsel appearing
for the appellants that the non-production of
original of Ext.A1 is fatal, in the facts and
circumstances of the case, I do not find that non-
production of the original of Ext.A1 is relevant or
material. As the plaint schedule property
admittedly belonged to Govindan and Govindan
executed Ext.A1 settlement deed in favour of his
wife and brother-in-law and their nephew and
execution of the settlement deed was not disputed
in the written statement, non-production of the
original of Ext.A1 is not at all material. As
rightly found by first appellate court, the
production of Ext.A1 and the oral evidence
establish that the title of Govindan in the plaint
schedule property was transferred in favour of the
plaintiffs under Ext.A1. Therefore plaintiffs have
title to the plaint schedule property.
8. When the plaintiffs have title to the
S.A.242/1992 10
property, the only question is whether the
defendants have got better title to the plaint
schedule propety. The only defence raised in the
written statement was that there was an oral
agreement for sale by Govindan in favour of the
first defendant and pursuant to the oral agreement
for sale after receiving part of the sale
consideration of Rs.1000/-, Ext.B1 title deed was
handed over to the first defendant and the plaint
schedule property was also put in the possession
of the first defendant and thus the plaintiffs are
not entitled to the recovery of possession sought
for. Even if there was an agreement for sale, so
long as no sale deed is executed, the title
continues with Govindan subject to the right if
any, of the first defendant under the oral
agreement for sale. When the agreement for sale
did not materialise and no sale deed was executed,
and Ext.A1 the title was transferred in favour of
S.A.242/1992 11
plaintiffs and on the strength of the title
recovery of possession is sought for, defendants
can only resist the claim either basing on
Section 53A of Transfer of Property Act if it is
available or by adverse possession and limitation
if such a plea is raised and sustainable. Both the
pleas are absent in the written statement.
9.The crucial question then is whether
defendants have established the oral agreement for
sale. The pleading with regard to the oral
agreement for sale was that on 25.2.1969 Govindan
agreed to sell the plaint schedule property to the
first defendant fixing the value at Rs.56/- per
cent and Rs.1000/- was received towards the sale
consideration and Govindan promised to execute the
sale deed in the name of the first defendant or his
son second defendant after receiving the balance
consideration and Ext.B1 the original title deed
was handed over and put the first defendant in
S.A.242/1992 12
possession of the property. There was no case that
at the time of oral agreement for sale, first
plaintiff Kalliani was present or that she was
also a party to the agreement for sale as deposed
by DW1. The only case pleaded in the written
statement about the oral agreement for sale was
that Velayudhan, son of Chathan had intervened.
When evidence was let in the oral agreement for
sale spoken to by DW1 is different. According to
DW1, it was Govindan and his wife the first
plaintiff, who agreed to sell the property and put
first defendant in possession of the property. The
case of an oral agreement wherein the first
plaintiff was also a party was not the oral
agreement set up in the written statement.
Eventhough it was pleaded in the written statement
that DW2 Velayudhan was the mediator, when examined
as DW1 case of the first defendant was that apart
from Velayudhan, Parameswaran and Kochappu were
S.A.242/1992 13
also intervened who were examined as Dws.3 and 4.
The first appellate court appreciated the evidence
of Dws.2 to 4 in the light of the case set up in
the written statement and rightly disbelieved the
case of oral evidence. The appreciation of
evidence which was proper cannot be interfered in
exercise of the powers of this court under section
100 of the Code of Civil Procedure. Even if the
evidence of Dws. 1 to 4 are reappreciated, the
finding on the question of oral agreement for sale
cannot be different from what was arrived at by the
first appellate court. First appellate court
rightly found that there was no agreement for sale
as claimed by the appellants. The trump-card of the
appellants was that the custody of Ext.B1, the
original title deed. True, plaintiffs did not
explain how defendants came into custody of
Ext.B1. But by the production of Ext.B1 alone, we
cannot come to a conclusion that there was an oral
S.A.242/1992 14
agreement for sale as claimed by the defendants.
If that be so, the plaintiffs are entitled to get a
decree for recovery of possession on the strength
of tile, unless the defendants are protected by any
statute or adverse possession. There was no plea
of adverse possession. As there is no written
agreement, even according to the defendants, they
cannot claim protection under section 53A of
Transfer of Property Act. In such circumstance,
first appellate court rightly granted a decree for
recovery of possession.
10. When the plaint schedule property
admittedly originally belonged to Govindan and
Govindan had executed Ext.A1 settlement deed in
favour of the plaintiffs and execution of Ext.A1
settlement deed was not disputed, the fact that the
original of Ext.A1 was not produced will not
disentitle the plaintiffs to get a decree for
recovery of possession on the strength of title.
S.A.242/1992 15
When plaintiffs have established their title and
defendants have no right to continue in possession
of the property, plaintiffs are entitled to the
decree sought for. The custody of Ext.B1 the
anterior title deed by itself will not establish
any right on the defendants to continue in
possession of the property and it will not prevent
the plaintiffs from getting a decree for recovery
of possession on the strength of title. The
substantial questions of law are answered thus. As
there is no merit in the Second Appeal, it is
dismissed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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S.A..NO.242 /92
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JUDGMENT
18TH JUNE,2007