IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 AS.No. 106 of 1996() ----------------------------- OS.112/1993 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/PLAINTIFF: ------------------------------------ BALASUBRAMANIAN, S/O.R. SUBRAMANIAN PILLAI, PAZHAYATHODY ALIAS KOZHIKODEN PARAMBIL, KATCHERI AMSOM, KURUMBRAKATTASSERI DESOM, KOZHIKODE TALUK. BY ADV. SRI.S.ABDUL SALAM, SRI.K.RAMACHANDRAN. RESPONDENTS/DEFENDANTS: --------------------------------------------- 1. PALASSERY GOPALAKRISHNAN, S/O.SANKARAN NAIR, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 2. N. PREMALATHA, D/O.NARASIMHAPAI, FEROKE AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. AS.No. 106 of 1996 ORDER ON C.M.P. NO.686/1996 IN A.S. NO.106/1996 DISMISSED 10/08/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 106 OF 1996 = = = = = = = = = = = = = = = Dated this the 10th day of August, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kozhikode in O.S.112/93. The suit is one for a declaration and consequential injunction. The declaratory relief sought for is that the decree passed in favour of the first defendant in O.S.574/84 confirmed by the appellate court in A.S.258/85 are all invalid in law and therefore it is liable to be declared as not binding on the plaintiff and for a relief of consequential injunction. The brief facts necessary for the disposal of the appeal are stated as follows. This case classically depicts the Indian scenario how long a civil litigation can be protracted through different A.S. 106 OF 1996 -2- methodologies by filing suits. I do not want to say that the suit as framed is incompetent in law or so. But the facts would speak for itself. 2. The property originally belonged to one Vasudeva Pie. He had executed a document in favour of the first defendant. It is the case of the plaintiff that he wanted to purchase some property and approached brokers and ultimately contacted Vasudeva Pie and the first defendant and he orally agreed to purchase the property from the first defendant for a consideration of Rs.35,000/- and paid an advance of Rs.20,000/- and was put into possession of the property on 28.2.87. According to him the plaintiff moved a suit as O.S.538/83 before the Munsiff Court, Kozhikode which ended in dismissal and defendants moved a suit O.S.574/84 for evicting the plaintiff from the property. It was decreed against which A.S.258/85 before the Subordinate A.S. 106 OF 1996 -3- Judge was filed which confirmed the judgment of the trial court and ultimately this Court by virtue of S.A.564/92 also dismissed the second appeal thereby entitling the first defendant to have a decree for eviction. Thereafter first defendant moved an application for delivery and it was ordered but it was intervened by this plaintiff. According to the plaintiff, D1 did not have any right over the property for the reason one of the creditors of Vasudeva Pie moved two suits as O.S.62/77 and O.S.113/77 before the Subordinate Judge, Kozhikode and obtained an order of interim attachment over the property. 3. Now it was contended by the present first defendant by way of a claim application that he is entitled to the property and it ultimately resulted in dismissal of the application. So it is submitted that the document executed by Vasudeva Pie in favour of A.S. 106 OF 1996 -4- first defendant has been found to be a sham one and therefore first defendant does not have any right or title to the property and so the decrees passed are also invalid in law and they cannot be implemented through the process of law. 4. First defendant raised a contention that he has got title to over the property and it was only by virtue of a permission that the plaintiff is in occupation of the property and by virtue of a decree in O.S.574/84 which went up to the High Court the first defendant got a decree to evict the plaintiff from the plaint schedule property. So far as the claim petition is concerned he would contend it was a case between the two and ultimately he had given the amount and therefore did not pursue the matter further and therefore that cannot be taken as an advantage by the plaintiff to nullify the decree obtained by the first A.S. 106 OF 1996 -5- defendant in the appeal suits. 5. The trial court on an exhaustive consideration of the materials granted no relief to the plaintiff and dismissed the suit without costs. But the learned counsel for the appellant would strongly contend before me that the plaintiff has established by producing documents that the first defendant did not have title to the property and therefore it has to be stated that there had been suppression of material facts including the orders of the Court in obtaining a decree for eviction and therefore the decrees obtained by him are invalid in law. 6. On the contra the learned counsel for the first defendant would contend that it was only a claim application where the creditor wanted to proceed against the property of the debtor and it was in that process interim attachment was ordered wherein a claim petition was filed and it is contended that since the A.S. 106 OF 1996 -6- money was paid before Court he did not pursue the matter further. 7. At the out set I may like to state that the plaintiff from the inception is claiming property only under the first defendant in the suit. The plaintiff had approached Vasudeva Pie who had in turn delivered him by virtue of the assignment deed and thereafter it was under the first defendant the plaintiff is setting up an oral agreement for sale for a consideration of Rs.35,000/-. So one cannot approbate and reprobate or blow hot and cold at the same time. So that itself is an indication wherein the plaintiff is really precluded from challenging the right of the first defendant in the case. Then he moved a suit and it was dismissed. The first defendant moved a suit for eviction wherein this plaintiff was a defendant. He contested the claim through out the matter, reached up to the High Court and a decree for A.S. 106 OF 1996 -7- eviction was confirmed by this Court as well. Now it has to be stated a prudent litigant was expected to raise all contentions in the previous suit itself. He did not move his little finger in that regard. He was only harping on an oral agreement to sell by the first defendant in his favour. It was not accepted by the Courts and the Court thereafter granted a decree in favour of the plaintiff. Therefore it was not a decree obtained by the first defendant by suppressing anything from the Court of law. It is true that Ext.A1 order did not come up for consideration in that case. Ext.A1 order is for a limited purpose. The suit was filed by a creditor against the debtor. In order to realise a decree debt he moved an application for attachment before judgment. In that attachment before judgment the first defendant moved an application under Order 21 Rule 58 claiming right over the property. The A.S. 106 OF 1996 -8- scope of enquiry was regarding the transaction between the debtor and the claimant in the claim application. The Court felt that it was a document which has not been acted upon and cannot defeat the interest of the creditor. The same thing is explained away by the defendant when he states that the amount had been disbursed. Therefore he did not pursue the case further. It appears to be more probable for the reason if the property which had been attached remained there and the amount was not paid, certainly there would have been a procedure against this property for the reason that a decree has been granted in that case. Therefore exclusion of the plaint schedule property by the first defendant appears to be reasonable and the learned Subordinate Judge had cited a decision reported in AIR 1967 S.C. 1390. It is true that there had been some changes in the position after the amendment Act which came into force in A.S. 106 OF 1996 -9- 1976. Whatever it may be, as stated by me earlier the scope was of very limited nature. The plaintiff wanted to wriggle out of that but he cannot succeed for the reason that he is claiming right under first defendant as per the oral agreement to sell and therefore he cannot be permitted to raise a contention denying the title of the first defendant. Therefore the judgment and decree of the trial Court do not call for any interference and therefore the appeal is dismissed but I direct the parties to bear their respective costs in the appeal. Taking into consideration that the present plaintiff had been in occupation of the premises rightly or wrongly for a long time I grant him four months time for surrendering vacant possession of the premises. M.N. KRISHNAN, JUDGE. ul/- A.S. 106 OF 1996 -10- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.106 OF 1996 = = = = = = = = = = = J U D G M E N T 10th August, 2010.