IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 AS.No. 309 of 1996(B) ------------------------------- OS.26/1984 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT(S): 5TH DEFENDANT ------------------------------------------------- K.B.JOSEPH ALIAS THANKACHAN, MARRY LAND TAILORS, K.K.ROAD, KOTTAYAM. BY SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE BY ADVS. SRI.B.S.SWATHY KUMAR SRI.T.R.HARIKUMAR SRI.V.G.ARUN SRI.BINDU SREEKUMAR RESPONDENT(S): PLAINTIFS AND DEFENDANTS 1 TO 3 ------------------------------------------------------------------------------- 1. MRS. REBECCA CHACKO, WIFE OF CHACKO, RESIDING AT T.C.14/297, EXTRA POLICE ROAD, CANTONMENT, TRIVANDRUM. 2. P.C.CHACKO, OF DO. DO. 3. NOBLE M.CHACKO, OF DO. DO. *4. M.R.SUKUMARAN, M/S.K.C.RAMAN AND SONS, K.K.ROAD, THIRUNAKKARA, KOTTAYAM.(DIED) 5. A.C.SAROJINI, WIFE OF SUKUMARAN OF DO. *6. S.DILIP SUKUMARAN, SON OF DO. DO.(DIED) *ADDL.R7 TO R9 IMPLEADED. 7. MINI DILIP, W/O. S.DILIP. MELAMOOTTIL HOUSE, ERANJAL KANJIKUZHI P.O., KOTTAYAM. tss AS. NO.309/1996 8. DEEPA DILIP, D/O. DO. DO. 9. DEEPIKA DILIP , D/O. DO. DO. *THE ABOVE ADDL. R7 TO R9 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED R6 VIDE ORDER DTD. 3.8.06 IN IA. 1796/06. *ADDL. R10 & R11 IMPLEADED 10. GEETHU VASUDEVAN, KARTHIKA HOUSE, M.L.A. ROAD, KOVOOR, KOZHIKODE. 11. PUSHPA BOSE, SOUPARNIKA HOUSE, GANDHI NAGAR P.O. ARPUKKARA, KOTTAYAM. * LEGAL HEIRS OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 10 & 11 AS PER ORDER DTD. 5.8.11 IN IA. 1564/09. BY SRI.T.KRISHNANUNNI, SENIOR ADVOCATE R1 TO R3 BY ADVS.SRI.P.R.VENKETESH, SRI.P.R.RAJA. SRI.G.UNNIKRISHNAN SRI.P.V.RAMESH SHANKAR R4 BY ADV. SRI.R.RAMADAS R8 BY ADVS. SMT.S.KARTHIKA, SRI.M.S.UNNIKRISHNAN, SRI.M.R.ANISON, SMT.K.P.GEETHA MANI, SMT.P.A.RINUSA , SRI.P.N.APPUKUTTAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/11/2011, ALONG WITH AS NO. 369 OF 1996 AND CONNECTED CASES THE COURT ON 15/12/2011 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. Nos. 309, 369 & 405 of 1996, & 714 & 716 of 2000. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2011. JUDGMENT O.S. 26 of 1984 before the Principal Sub Court, Kottayam was decreed. Defendants 1 to 3 have preferred A.S.369 of 1996. The fifth defendant had preferred A.S.309 of 1996. Defendant No.8 had preferred A.S. 405 of 1996. The assignee from the eleventh defendant had preferred A.S. 714 of 2000. A.S. 716 of 2000 is by a stranger having obtained the leave of this court to file an appeal. The parties and facts are hereinafter referred to as they are available before the court below. Since the fate of most of the appeals is determined on the basis of the decision in A.S. 369 of 1996, that is being treated as the main appeal. 2. The plaint schedule property has an extent of 31.236 cents of land with a building therein. It belonged to the father of the first plaintiff. The second A.S.309/1996 & con.cases. 2 plaintiff and third plaintiff are the children of the first plaintiff. Prof. Mamman, father of the first plaintiff had leased out the building in the property to the father of the first defendant, namely, Raman, for a monthly rent of Rs.170/- per month. Prof. Mamman was stationed at Trivandrum working as a Professor in one of the Colleges at Trivandrum. After the death of the first defendant's father, the first defendant succeeded to the business carried on by his father in the premises. Prof.Mamman's brothers had instituted two suits, O.S.154 of 1958 and 155 of 1958 against Prof. Mamman and others. The plaint schedule property is included in one of those suits. According to the plaintiffs, Prof. Mamman due to his advanced age and health problems found it difficult to conduct the suits and therefore he had executed Ext.B1 sale deed dated 8.1.1963 in favour of the first defendant in respect of 56 cents, of which the plaint schedule is a portion. Though the document recites that sum of Rs.5,000/- was paid on the date of execution of A.S.309/1996 & con.cases. 3 the deed, it was infact not paid and no amount was received by the vendor. No consideration was intended to be passed and Ext.B1 was only a sham document. Even after Ext.B1, the first defendant continued to pay the rent which was due from him as tenant. After the death of Prof. Mamman, the first defendant continued to pay the rent to the first plaintiff. It is alleged in the plaint that on 18.8.1965 the first defendant executed a deed admitting that Ext.B1 is a sham document and he would reconvey the property. In pursuance to that deed, the plaintiffs made several demands to the first defendant to reconvey the property. He either postponed or avoided execution of the deed. According to the plaintiffs, surprisingly the first defendant began to assert title to the suit property. He began to deal with the plaint schedule property as if it belonged to him. He sublet the premises and leased out to defendants 5 to 10. The plaintiffs also learnt that the first defendant had hastily created documents in favour of defendants 2 and 3. The A.S.309/1996 & con.cases. 4 fourth defendant is the sister of the first defendant. He had created a document in her favour also. The first defendant is alleged to have transferred 2.01 cents to the eleventh defendant. The first defendant was incompetent to deal with the property as if it belonged to him and he had no right to execute deeds in respect of the suit property. Those documents are void and are not binding on the plaintiffs. The plaintiffs therefore issued notice to the first defendant, to which a reply was sent by the first defendant containing false recitals. That necessitated the plaintiffs to file the suit for declaration of title and to recover possession of the suit property with mesne profits. 3. In the written statement filed by the defendants 1 to 3, they disputed the allegations in the plaint. The plaint schedule property, which is a part of 56 cents of land known as Vazhiyambalathil originally belonged to Sri.Korah Thommen, the predecessor-in-interest of Prof. Mamman. On the death of Sri.Korah, the property devolved A.S.309/1996 & con.cases. 5 on Prof. Mamman and other legal heirs. In the year 1112 M.E. Sri. Raman, father of the first defendant, took one half of the property with a shed thereon to conduct a workshop. On the death of Sri. Raman, the first defendant continued to run the workshop. The brothers of Prof. Mamman had instituted O.S. Nos. 154 and 155 of 1958 with regard to 56 cents of property and other properties. In O.S. No. 154 of 1958, Sri. Raman, father of the first defendant, was arrayed as the 15th defendant. On the death of Sri.Raman, the first defendant was impleaded as additional defendant No.18. The trial court dismissed both the suits. Two appeals were preferred, namely, A.S.652 of 1959 and A.S.679 of 1959 before this court. It is contended that when the appeals came up for hearing, there was a suggestion of settlement. Counsel who was appearing for Prof. Mamman, who was the respondent in the appeal, felt that the offer of settlement is more advantageous, since he felt that the decision in the appeals may go against Prof. Mamman. The offer was that A.S.309/1996 & con.cases. 6 Prof. Mamman would be given 26 cents at Kottayam and he would have to forego his rights over the properties at Mavelikkara. In fact Prof.Mamman was advised by his counsel to accept the offer. At that time Prof. Mamman was not willing to settle the matter and executed Ext.B1 sale deed in favour of the first defendant for a total consideration of Rs.25,000/-. Rs.5,000/- was paid on the date of execution itself and the balance was paid as Rs.7,000/-, Rs.7,000/- and Rs.6000/- over a period of three years. According to the first defendant, he had already paid Rs.20,000/- towards the sale consideration to Prof. Mamman. He would say that Prof. Mamman had cautioned him that in case he died before the entire balance sale consideration was paid, the balance amount shall not be paid in a lumpsum to the first plaintiff, but it was to be paid in small amounts according to the requirements of the first plaintiff. He then makes mention of various payments made to the first plaintiff on different occasions. According to these defendants, eversince Ext.B1 A.S.309/1996 & con.cases. 7 document, the first defendant has been in absolute possession and enjoyment of the property. They disputed that the first defendant had ever executed any document acknowledging that Ext.B1 document was a sham document and agreeing to reconvey the property. Mutation was effected and tax was paid by the first defendant. It was also pointed out that there were kudikidappukars in the property who filed applications under Section 80B in which the first defendant was shown as the owner of the land. The first defendant also transferred a portion of the property. In the final decree in O.S.154 and 155 of 1958, the property was allotted to the first defendant and at the execution stage of the decree he entered into a compromise with the decree holder and purchased one and odd cents from another sharer. The old building standing in the property was demolished and a new structure was put up. The allegations in the plaint to the contrary are false and made with ulterior A.S.309/1996 & con.cases. 8 motive. The plaintiffs have no manner of right over the suit property and they are not entitled to any relief in the suit. 4. In the written statement filed by the fifth defendant, he contended that 3.250 cents of property on the north-western corner of the plaint schedule property belonged to one Vazhiyambalathil Kurian Korah and Prof.Mamman had no rights over the property. It does not form a part of the property leased out to the first defendant. It was acquired by one Puthenpurackal Chachi and she resided therein and carried on business. The predecessor in interest of the fifth defendant obtained assignment of the property from Chachi and Sara. The fifth defendant disputed that he is a subtenant under the first defendant and pointed out that he had independent rights over an extent of 3.250 cents of property. 5. In the written statement filed by defendants 6 to 9, they contended that the plaintiffs had no right over the property and that the premises had been leased out to them A.S.309/1996 & con.cases. 9 by the first defendant. If at all the plaintiffs want to evict them from the property, they have to take recourse to provisions of the Rent Control Act, namely Act 2 of 1965 and a suit for partition is not maintainable. 6. The tenth defendant set up an independent right. The eleventh defendant claimed that he is a bonafide purchaser of 2.1 cents of land from the first defendant and his possession is not liable to be disturbed. 7. On the basis of the above pleadings, issues were raised. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Exts.A1 to A34 from the side of the plaintiffs. The defendants had D.W.1 and 2 examined and Exts.B1 to B77 marked. Exts.C1 and C1(a) are the commission report and the valuation report prepared by the Commissioner. On an appreciation of the evidence in the case, the trial court came to the conclusion that Ext.B1 is a sham deed for the reasons made mention of in paragraph 66 of the trial court judgment. It was also found that A.S.309/1996 & con.cases. 10 defendants 5 to 10 had been inducted by the first defendant and the first defendant is liable to be evicted under Section 11(4) (ii) of the Kerala Buildings (Lease and Rent Control) Act. It was also held that the eleventh defendant had no manner of right over the suit property. On the basis of these findings, a decree was passed in the following terms: “a) Sale Deed No.78/1963 of Kottayam Addl.SRO is declared a sham and invalid document. b) Gift deed Nos.3066 and 3067 of 1981 of Kottayam Addl.SRO 45 are declared invalid. c) Sale deed No.3004/83 of Kottayam Addl.SRO is declared invalid. d) The title of the plaintiffs to the plaint schedule land is declared. e) The plaintiffs are allowed to recover possession of the plaint schedule land from the defendants. f) The plaintiffs are allowed to recover from defendants 1 to 3 Rs.6,120/- with interest at 6% per annum from 10.2.1984 till realization. g) The plaintiffs are allowed to recover from defendants 1 to 3 compensation at the rate of A.S.309/1996 & con.cases. 11 Rs.5000/- per annum from 10.2.1984 till the plaintiffs are put in possession of the property. h) Defendants 1 to 3 are directed to demolish and remove the building put up by them on the plaint schedule land without causing damage to the land if the plaintiffs are not willing to pay to defendants 1 to 3 Rs.25 lakhs (Rupees Twenty five lakhs only) as its value. i) The 5th defendant is directed to demolish and remove the building occupied by him failing which the plaintiffs are at liberty to get it demolished and removed by the process of the court at his expenses. j) The plaintiffs are allowed to recover their costs from defendants 1 to 3 and defendant No.5.” It is the said decree that is assailed in these appeals. 8. As already noticed, the fate of the other appeals to a great extent depend on the decision in A.S.369 of 1996. If A.S.369 of 1996 is allowed, then all the other appeals will have to be allowed. If, on the other hand, A.S.369 of 1996 is dismissed, A.S.309 of 1996 filed by the fifth defendant may still survive for consideration. A.S.309/1996 & con.cases. 12 9. The dispute relates to 36 and odd cents of property situate in Kottayam town. Admittedly, it belonged to Prof. Mamman. According to the plaintiffs, a portion of the property with a shed therein was leased out to the father of the first defendant, namely Sri. Raman for conducting a workshop. On the death of Raman, the first defendant succeeded to the business. The allegation is that the so called sale deed namely Ext.B1 dated 8.1.1963 is a sham document and conferred no rights on the first defendant. The title continued with Prof. Mamman and he had been in possession of the property also. The claim of the plaintiffs is that since Prof. Mamman was advanced in age and was not keeping good health, he found it difficult to attend court on the various posting dates of O.S.154 and 155 of 1958. In order to conduct those cases properly, Ext.B1 was executed in favour of the first defendant and there was no intention to confer any right by virtue of that document over the suit property. The first defendant on the other hand would say A.S.309/1996 & con.cases. 13 that Ext.B1 is a pucca sale deed and title over the property covered by Ext.B1 passed to the first defendant and eversince then, he was treating the property as his own and dealing with the property as if it belonged to him. He would say that he has acted upon Ext.B1 document and had made considerable improvements in the property. 10. The trial court enumerated as many as 19 circumstances mainly based on the communications between Prof. Mamman and the first defendant and came to the conclusion that even after Prof. Mamman had executed Ext.B1 document, Prof. Mamman continued to be the owner of the property and Ext.B1 was only a camouflage. The act of the first defendant in opposing the Will of Prof. Mamman was also taken as a circumstance against the first defendant. 11. The main question that arises for consideration is whether Ext.B1 is a sham document. The subsidiary question that arises for consideration is that even A.S.309/1996 & con.cases. 14 if Ext.B1 is taken to be a sham document, will a suit lie for the eviction of the first defendant and others? 12. Learned Senior Counsel appearing for the appellants, namely, Sri.Krishnanunni severely criticized the finding of the court below and characterized it as perverse, unjust and unwarranted on the basis of the evidence adduced in the case. It was pointed out that the reasons given for executing Ext.B1 by the plaintiff are filmsy. If as a matter of fact Prof. Mamman was not physically fit to travel due to his age and illness, all that necessary was to execute a power of attorney in favour of the first defendant to conduct the litigation on his behalf. It looks extremely strange and contrary to reason that Prof.Mamman would execute a sale deed in favour of the first defendant to enable the first defendant to conduct the suits on his behalf. On the basis of Ext.B1, learned counsel pointed out that the first defendant got himself impleaded in the appeals, namely, A.S.652 and 679 of 1959 and the further A.S.309/1996 & con.cases. 15 proceedings were conducted by him. Learned Senior Counsel pointed out that in the appeals, apart from the plaint schedule property, other items of properties over which Prof.Mamman had rights were also involved. Even assuming that the circumstance relied on by the plaintiffs showing that the first defendant used to continuously appraise Prof.Mamman about the development of the case and the way it had progressed etc. are true, that by itself was not a ground to label Ext.B1 as a sham document. The finding of the court below that the draft of Ext.B1 is not produced also cannot be a circumstance to show that it is a sham document. The further finding that the sale consideration in Ext.B1 was unilaterally fixed and no amount was paid as per that document are only figments of imagination of the trial court whereas the facts were otherwise. 13. Learned counsel for the appellants went on to point out that Ext.B1 is a registered document and the A.S.309/1996 & con.cases. 16 burden is heavy on the plaintiffs to show that the document is something else than what it purports to be. On the basis of Ext.B1, the first defendant got himself impleaded in the appeals before this court and participated in the final decree proceedings. The first defendant herein was defendant No.18 in those proceedings. The property was allotted to him in the final decree and he entered into a compromise with one of the decree holders while executing that decree when it was found that a small portion of the building is protruding into the property set apart to another sharer and therefore the first defendant had purchased an extent of 1.05 cents from that sharer to avoid dismantling that portion of the building. Learned counsel went on to contend that an impartial perusal of the documents produced by the first defendant and the oral evidence will clearly show that eversince Ext.B1, the first defendant has been in exclusive possession and enjoyment of the property and he was shown as the land owner in various proceedings before the A.S.309/1996 & con.cases. 17 Land Tribunal, where applications were filed by Kudikidappukars for purchase of kudikidappu. Attention was also drawn to the fact that a new building had been put up by the first defendant in the property. These glaring and telling circumstances and facts have been simply brushed aside stating that the letters written by the first defendant to Prof.Mamman will show that he was kept informed about the litigations and its progress. Learned counsel concluded by pointing out that if at all the plaintiffs had any complaint, that could be only regarding the non-payment of balance sale consideration made mention of in Ext.B1 and the non- payment of the sale consideration cannot be a ground to hold that Ext.B1 is a void document or that it is a sham document. 14. In reply, Sri.P.G.Parameswara Panicer, learned Senior Counsel appearing for the contesting respondents, pointed out that the trial court had meticulously analysed the evidence to come to the conclusion that Ext.B1 is a A.S.309/1996 & con.cases. 18 sham document. Even after the socalled alleged sale deed, namely, Ext.B1, the evidence in the case would show that Prof.Mamman continued to take income from the property and was being consulted by the first defendant regarding the progress and the manner in which the cases are to be conducted. The evidence of D.W.1, namely, the first defendant, is sufficient to show, according to learned counsel, that Ext.B1 is a sham document. The fact that all subsequent documents show the property as if it belonged to the first defendant is in tune with the purpose for which Ext.B1 was executed and that cannot confer any right on the first defendant. 15. The counsel, who was appearing for Prof.Mamman in the appellate stage in A.S. 652 and 670 of 1959 made a compromise suggestion to Prof.Mamman. Prof. Mamman was not very keen about it. But he does not have the necessary courage to inform his counsel his non-inclination to accept the compromise. So, in order to A.S.309/1996 & con.cases. 19 change the lawyer and to protect the property, according to learned counsel, Ext.B1 was executed. It would be clear from the price shown in Ext.B1 and the evidence that it was not at the instance of Prof.Mamman that the price was fixed as would be clear from the evidence of D.W.2. His evidence would show that D.W.2 simply inserted a figure as sale consideration. Prof.Mamman was not very particular about the sale consideration because he executed Ext.B1 only as a sham document. In fact no consideration has passed as recited in Ext.B1. Learned counsel drew the attention of this court to the strange mode of payment of balance consideration and it was contended that such arrangements are unusual and unknown. Further, it was contended that if Ext.B1 was a true document, at some point of time after the sale consideration had become due, the vendor would have demanded the same. There is no evidence to show that at any point of time there was a demand for balance sale consideration. According to learned counsel, a reading of A.S.309/1996 & con.cases. 20 the evidence of D.W.2 would clearly show that Prof.Mamman continued to take income from the property. The communications produced and discussed by the court below would clearly show that even after the execution of Ext.B1, Prof. Mamman was treated to be the owner of the property by the first defendant also. Prof.Mamman though engaged another lawyer for the conduct of the case, he was not actively participating in the proceedings. First defendant took care to see that Prof.Mamman is kept in the know of things regarding the two suits, and he often used to insist that Prof.Mamman should come down and met the lawyer personally. If as a matter of fact the first defendant became the owner of the property, it was unnecessary for him to refer to Prof.Mamman regarding the manner in which the case should be conducted and such other matters. 16. It will be first useful to look at Ext.B1 document dated 8.1.1963. One may mention here that the real name of Prof .Mamman was Korah Maman. Ext.B1 is A.S.309/1996 & con.cases. 21 executed by Sri.Korah Maman in favour of the first defendant. The vendor claimed to be the absolute owner of the property conveyed under Ext.B1. The deed refers to the decree in O.S. Nos.154 and 155 of 1958 and also about the pendency of the appeals, namely, A.S.652 and 670 of 1959 before this court. The document then recites about the oldage of Prof.Mamman and his difficulties to conduct the cases. The document also recites that the purchaser, that is the vendee, is already in possession of the property as a tenant. The agreed sale consideration is Rs.25,000/-. It will be useful to see how the consideration is paid. Rs.5,000/- had to be paid