IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 SA.No. 859 of 2000(B) -------------------------- AS.61/1992 of ADDL.SUB COURT, IRINJALAKUDA OS.32/1989 of MUNSIFF COURT, KODUNGALLUR .................... APPELLANT(S):RESPONDENTS 1, 4, 5 TO 7/1ST DEFENDANT: ----------------------------------------------------------------------- * 1. GANGADHARAN, S/O.NEDIYIRIPPIL RAMAN, PERINJANAM VILLAGE, KODUNGALLUR TALUK, THRISSUR. (DIED. LR'S RECORDED) * IT IS RECORDED THAT APPELLANTS 2 TO 5 AND R2 ARE THE LR'S OF DECEASED AS PER ORDER DATED 20/09/2004 IN I.A. NO.1859/2004. 2. REMANI, D/O.GANGADHARAN, JAYASREE MAHILA SAMAJAM TEACHER,NEDIYIRIPPIL HOUSE, PERINJANAM VILLAGE, PERINJANAM WEST, KODUNGALLUR TALUK, THRISSUR. 3. RENUKA, D/O.GANGADHARAN, C/O.V.K.DIVAKARAN, ULLOOKKARAN PARAMBIL,PALIYAMTHURUTHU, ANAPPUZHA, THRISSUR. 4. RANJITH, S/O.NEDIYIRIPPIL GANGADHARAN, PANATH HOUSE, PERINJANAM WEST, THRISSUR DISTRICT. 5. RAGINI,S/O. NEDIYIRIPPIL GANGADHARAN, PANATH HOUSE, PERINJANAM WEST, THRISSUR DISTRICT. BY ADV. SRI.N.P.SAMUEL RESPONDENT(S):APPELLANT & 3RD RESPONDENT/PLAINTIFF ------------------------------------------------------------------------ 1. AHALLIA BAI, D/O. MOONAMKOOT CHOYI, W/O.KIZHAKKEDATH SACHITH, PERINJANAM VILLAGE, KODUNGALLUR TALUK, PERINJANAM P.O., THRISSUR DISTRICT. 2. N.G.BHANUJAN, S/O.NEDIYIRIPPIL GANGADHARAN, PERINJANAM VILLAGE, KODUNGALLUR TALUK, P.O.PERINJANAM, THRISSUR DISTRICT. R1 BY ADV. SRI.P.R.VENKETESH R2 BY ADV. SRI.AYPE JOSEPH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.BHAVADASAN, J. ---------------------------- S.A.No. 859 of 2000 --------------------------------- Dated this the 12th day of April, 2011 JUDGMENT The defendants in O.S. No.132/1989 before the Munsiff's Court, Kodungallur, who suffered a decree at the hands of the lower appellate court are the appellants. It appears that during the pendency of the appeal before the lower appellate court additional respondents 3 to 7 were impleaded. The parties and facts are hereinafter referred to as are available before the trial court. 2. The plaintiff on the basis of Ext.A1 sale deed dated 08.05.1968 claimed title over the suit property having an extent of 42 cents. The allegation in the plaint was that on 23.03.1978 when the plaintiff and her husband went to the suit property for conducting some agricultural operations, the defendants obstructed them from doing so. That resulted in the plaintiff filing O.S.105/1978 before the very same court. In the said suit defendants filed written statement, in which they contended that Ext.A1 is a sham document and that defendant had obtained purchase certificate in respect of the suit property. Coming to know about the same, the plaintiff preferred A.A. No.2358/1978 before the Appellate Authority(L.R.). The appeal was allowed and the matter was remanded to the Land Tribunal. After the remand, the matter was S.A.No. 859 of 2000 2 again decided in favour of the defendant. On appeal as A.A.No.198/1986 and the matter was found in favour of the plaintiff, in respect of the plaint schedule property. Thereafter, O.S.No.105/1978 was withdrawn reserving liberty to file a suit on the strength of title. Hence, this second appeal. 3. The suit was resisted by the defendants by pointing out that Ext.A1 document is a sham document and no right accrued the plaintiff. It was unsupported by consideration and property remained with the defendants even after Ext.A1 was executed in favour of the plaintiff. They pointed out that even assuming that the plaintiff had any manner of right over the suit property, the same had been lost by adverse possession and limitation. They prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendants examined as DWs 1 to 4 and Exts. B1 to B9 were marked. The trial court on the basis of the finding that the amount reserved to be discharged under Ext.A1 has not been discharged and there was no evidence possession having been passed held Ext.A1 was a sham document and the property continued to be in S.A.No. 859 of 2000 3 the possession of the defendants. Accordingly, the suit was dismissed. 5. The plaintiff carried the matter in appeal as A.S.61/1992. The lower appellate court re-evaluated the evidence on record and came to the conclusion that the defendants have failed to prove that Ext.A1 is a sham transaction and therefore, reversed the judgment and decree of the trial court and granted a decree in favour of the plaintiff. That brings the defendants before this court. 6. Notice is seen issued on the following substantial questions of law: (a) When the plaintiff has admitted that Ext.A1 document was presented for registration not by the executant but by the document writer, is not the registered document Ext.A1 invalid in view of Section 32 of the Indian Registration Act? When the registration of Ext.A1 is against Section 32 of the Registration Act, can it be said that title in the property passed to the first respondent by Ext.A1? When the document Ext.A1 is invalid in view of the decision reported in AIR 1954 SC 316, will it effects a sale as per Section 54 of the Transfer of Property Act? If transfer of property was not effected can title be declared and recovery of the property covered by Ext.A1 be granted? (b) When no evidence was adduced for payment of Rs.600/- to the appellant and when the case that Rs.200/- was paid at the time of registration in the Registrar's Office is disproved by Ext.A1 document itself on which there was no endorsement of payment of Rs.200/- which the registrar is bound to make as per Section 58 (c) of the Registration Act, was the lower appellate court correct in finding that consideration was paid? Unless payment of price was proved, can there be a sale as contemplated under Section 54 of the Transfer of Property Act, If there is no sale due to S.A.No. 859 of 2000 4 non-payment of price, can Ext.A1 effect a sale and pass 'title to the 1st respondent'? (c) When it is proved by Exhibits B5 to B9 that the appellant was paying basic tax to the property covered by Ext.A1 also and even knowing this, the 1st respondent did not object nor paid tax for the 42 cents of property and when continued possession of the appellant before and after execution of Ext.A1 was established by Ext.B1 and B2 document also, was the lower appellate court correct in finding that Ext.A1 was acted upon and possession was given to the first respondent? (d) When possession of the property covered by Ext.A1 was proved to be with the appellant from the date of tenancy by documents, evidence and also by the decision in S.M. 13/84, was the lower appellate court correct in finding against adverse possession? (e) After having decided whether Ext.A1 is a genuine transaction or a sham transaction and if it was found that the transaction is a real one, this Honourable Court held in C.R.P. 1124/89 “As the parties are claiming rival tenancy right over the same property, the civil court will have to refer that matter also to the Land Tribunal” and this Honourable Court set aside the order in S.M. 13/84 and A.A. 198/88 and directed the Land Tribunal to keep the matter in abeyance and will try the matter along with reference that may be made in the suit O.S. 132/89 of the Munsiff Court, Kodungallur”. In view of this direction was the lower appellate court correct in not referring the question of rival tenancy to the Land Tribunal, Kodungallur? (f) Is not question of tenancy a separate question to be decided even if Ext.A1 document was found to be genuine, Since there is rival claims of tenancy regarding the property covered by Ext.A1? 7. The learned counsel for the appellant contended that the S.A.No. 859 of 2000 5 lower appellate court was not justified in decreeing the suit and reversing the judgment and decree of the trial court. It is pointed out that there was earlier suit between the defendant and Velayudhan Kurup in respect of 1.02 acres of land. In order to escape from certain consequence that suit, Ext.A1 had been executed in favour of the plaintiff in this case. The document was not intended to take effect and therefore no rights were conferred on the plaintiff in respect of the plaint schedule by virtue of Ext.A1 document. The learned counsel contended that there is a clear evidence that the possession of the property continued with defendant. They have paid tax and have been enjoying property even after execution of Ext.A1. Emphasis was also laid on the fact that the evidence of PW1, the plaintiff shows that the document was produced for registration by the scribe of the document and that makes the registration invalid in law and therefore, Ext.A1 is not a valid document. It is also contended that the plaintiff is bound to prove his case so as to earn a decree in their favour. The learned counsel relied on the decision reported in (1976 KLT 512) Kochu Ouseph v. Joseph and others. It was also contended that if at all the plaintiff had any manner of right it was lost by adverse possession and limitation. S.A.No. 859 of 2000 6 8. Per contra, the learned counsel appearing for the respondents pointed out that the contentions now raised are without any bonafides and merits. The defendant in this case, executed Ext.A1 in favour of the plaintiff in the year 1968 and that Ext. A1 document was produced in the earlier suit between the defendants and Velayudha Kurup. At that time, the present defendant had no case that Ext.A1 is a sham document and that no rights were created in favour of the plaintiff. According to the learned counsel, as rightly noticed by the lower appellate court merely because there is no evidence to show that the charge created as per Ext.A1 has not been discharged it does not mean that it had not taken effect and acted upon. So long as proceedings are not initiated against the defendants for recovery of the amount it could not be said that non discharge of liability had any bearing on the issue involved in the suit. The learned counsel went on to point out that there is sufficient evidence to show that Ext.A1 has coming to effect. 9. It is interesting to note that it was during the pendency of Ext.B1 suit that Ext.A1 was executed. The plaintiff in Ext.B1 suit is the executant of Ext.A1. It is also interesting to notice that Ext.A1 in the said suit is marked as Ext.B2. There seems to have been no contention in Ext.B2 that is a sham document and document was not S.A.No. 859 of 2000 7 acted upon. 10. As rightly noticed by the lower appellate court merely because the plaintiff has not produced any evidence to show that charge made mention of Ext.B1 had been discharged it cannot be said that Ext.A1 is a sham document. There is nothing to show that there has been any proceedings against the defendant for recovery of the amount or any proceedings have been initiated against them. Of course, the learned counsel for the appellant has a case that being a sham document nothing was done in the matter. In Ext.A1 document has been produced by the plaintiff. If as a matter of fact Ext.A1 is a sham transaction to original deed would have been with the defendant himself. Moreover, there is nothing to show that even after Ext.A1 has been executed, the defendants continued to enjoy the property. 11. On the basis of the decision reported in AIR 1954 SC 316 Kishore Chandra V.Ganesh Prasad, it was contended that in the light of the statement made by PW1 that the document was presented for registration by the scribe, the registration proceedings are void and invalid and therefore, the document is void and confers no right on the plaintiff. It is interesting to note that in the cross-examination suggestion to PW1 made is that it was presented by the executant himself. S.A.No. 859 of 2000 8 12. As regards the contention based on the decision reported in (1976 KLT 512) Kochu ouseph v. Joseph and others is misconceived. The said decision was with regard to article 142 of the Limitation Act corresponding to present article 64 of the Limitation Act. One has to notice that the present suit is based on title which falls within the ambit of article 65 of the Limitation Act. Once the plaintiff establishes title to the suit property, it is for the defendant to show that they had perfected title by adverse possession and limitation. As rightly noticed by the lower appellate court, the trial court had relied on the decision reported in (1976 KLT 512) Kochu Ouseph v. Joseph and others which was not correct. 13. What now remains to be considered is whether the matter is liable to be referred in land tribunal in the light of the tenancy rights claimed by both the parties. Here, one may refer to the order in CRP No.224/1990 dated 19.12.1990. This court considered the plea that the matter had to be referred to the Land Tribunal for a decision has arriving the claims of tenancy is involved. This court observed that first issue is whether Ext.A1 is a sham transaction and after having determined that issue, one has to see whether the question of tenancy arises at a consideration. Thereafter, if the question arises it is to be referred to the Land Tribunal. S.A.No. 859 of 2000 9 14. In the case on hand, the defendant claimed tenancy right. It is from the defendant that the plaintiff has obtained Ext.A1 document. It is not a rival claim of lease hold right. It is not a case where two persons independently claimed tenancy right against a common landlord. Plaintiff claimed under the defendant. There is a proceeding pending before Land Tribunal. The defendant will be entitled to get purchase certificate of that portion of the property excluding the property covered by Ext.A1 document. Once it is found Ext.A1 is genuine, the defendants in the suit are entitled to get purchase certificate only in respect of the balance extent of land. 14. Therefore, while confirming the judgment of the lower appellate court, it is made clear that defendants in the suit will be entitled to get purchase certificate from the Land Tribunal for the balance extent of property excluding the property covered by Ext.A1 document. This second appeal is disposed of as above. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln