High Court Kerala High Court

Paramu vs Kallyani on 18 June, 2007

Kerala High Court
Paramu vs Kallyani on 18 June, 2007
       

  

  

 
 
  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.

                 ===========================

                   S.A.  NO.242    OF 1992

                 ===========================



           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