IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 SA.No. 655 of 1999(C) --------------------- AS.132/1991 of DISTRICT COURT, PALAKKAD OS.42/1990 of MUNSIFF COURT, ALATHUR .................... DEFENDANT/APPELLANT/APPELLANT :- ---------------------------------------------------------- KRISHNAN, S/O.KUNJU, KARAMPADAM, MUDAPPALLUR, ALATHUR, PALAKKAD. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA PLAINTIFF/RESPONDENT/RESPONDENT :- ------------------------------------------------------------ RAGHAVAN, S/O.KUNJU, KARAMPADAM, MUDAPPALLUR, ALATHUR, PALAKKAD. ADV. SRI.V.CHITHAMBARESH (SR.) SRI.S.KRISHNA PRASAD THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2011, ALONG WITH S.A.No.820 OF 1999, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt SA.No. 655 of 1999 ORDER IN C.M.P.No.1823 OF 1999 IN S.A.No.655 OF 1999 Dismissed. Sd/- P.BHAVADASAN, JUDGE. 08.07.2011 //True Copy// P.A. to Judge P.BHAVADASAN, J. ---------------------------- S.A.Nos. 655 & 820 of 1999 --------------------------------- Dated this the 8th day of July, 2011 JUDGMENT These appeals arise from O.S.No.42/1990 before the Munsiff's Court, Alathur. S.A.No.655/1999 is filed by the defendant in the suit and S.A.No.820/1999 is filed by the plaintiff in the suit. 2. The suit was one for recovery of possession with mesne profits. Most of the facts are not in dispute. In partition, evidenced by Ext.A1 document dated 30.12.1969, the plaintiff was allotted B schedule property. The allegation in the plaint was that at the time of partition the plaintiff was very young and he was studying and the properties set apart to him were managed by the defendant, who is his brother. After education, the plaintiff was employed in distant places. So the defendant was looking after the properties and used to give income to the plaintiff. Recently, plaintiff returned and asked the defendant to return the properties. The defendant refused to return the properties and therefore, the suit was laid. S.A.Nos. 655 & 820 of 1999 2 3. The suit was resisted by the defendant by pointing out that after partition there was an arrangement between the parties whereby the defendant relinquished all his rights to the tharavadu property and house in favour of the plaintiff in lieu of which 1.50 acres obtained by the plaintiff was given to him by the plaintiff. He pointed out that he had put up a building and he was residing in the property. He also contended that he had made several improvements in the property and the plaintiff is not entitled to any relief. He 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 PW1 and documents marked as Exts.A1 to A4 from the side of the plaintiff. Defendant had DWs 1 to 3 examined and Exts. B1 to B3 series marked. Exts. C1 and C2 are the commissioner's report and plan. The trial court found that there is no evidence to show that the exchange is probable in view of the various circumstances brought out in evidence in the case. The lower court also found that as per Section 118 of the Transfer of Property Act an exchange deed has to be executed in the same manner as a sale. S.A.Nos. 655 & 820 of 1999 3 The lower court upheld the claim for value of improvements and quantified the same at Rs.80,390/- to be paid by the plaintiff. Future mesne profits claimed by the plaintiff was declined as there was no evidence regarding the claim made by the property. 5. The defendant carried the matter in appeal as A.S.No.117/1991 before the District Court, Palakkad. The lower appellate court re-appreciated the evidence on record and concurred with the trial court. Thus the lower appellate court confirmed the judgment and decree of the trial court. 6. Notice is seen issued on the following substantial questions of law: S.A.No.655/1999 a) Were the courts below right in law in thinking that a plea of exchange as set up by this appellant is bad for want of a registered document ? b) Should not the courts below in error in discarding the case of exchange set up by this appellant especially when the circumstances elicited in evidence would corroborate that plea ? c) Is it not the burden on the plaintiff exclusively to establish his unhindered title over the property in seeking recovery of possession of the same ? S.A.Nos. 655 & 820 of 1999 4 d) Were not the courts below in error in casting the burden on the defendant to establish the case ? e. Were not the judgments and decrees of the courts below vitiated by reason of perverse appreciation of the evidence on record ? S.A.No.820/1999 (i) Whether the lower appellate court was justified in treating the defendant as a transferee who has effected improvements in good faith so as to apply Section 51 of the Transfer of Property Act after having found that the plea of exchange of property set up by him is false ? (ii) Whether the lower appellate court was correct in law in applying the rule of equitable estoppel by acquiescence when there is no plea much less any proof of any mistaken identity for the defendant or to show that the plaintiff had encouraged the defendant to spend money for improvements ? (iii) Have not the courts below erred in directing the plaintiff to pay the value of improvements to the defendant as a condition for recovery of possession of the property when the plaintiff has not lost right over the disputed extent of 1.50 acres by adverse possession and limitation ? 7. Both the courts below had found that the defendant was in possession of the property, put up a building in the property and has been residing there from 1990 onwards. He has made improvements also in the property. The plaintiff is aware of all S.A.Nos. 655 & 820 of 1999 5 these facts. An appreciation of evidence according to the counsel will show that the defendant has been in absolute possession and enjoyment of the property as if it belonged to him. Therefore, the judgments and decrees of the courts below are unsustainable in law. 8. The learned counsel appearing for the respondent in S.A.No.655/1999 pointed out that whatever may be the finding of the courts below the fact remains that there is no document evidencing exchange by the defendant. The statutory provision is very clear and exchange is in the nature of a sale and if that be so a registered document is absolutely necessary for legalizing the transaction. There is no such deed. Therefore, the courts below were right in holding that the defendant cannot succeed. No interference is called for with the judgments and decrees of the courts below. 9. In S.A.No.820/1999, the learned counsel pointed out that the courts below were not justified in declining the mesne profit saying there is no income from the property. This was contrary to the evidence on record. It was also pointed out that the mere fact S.A.Nos. 655 & 820 of 1999 6 a building might have been put up and improvements have been made by defendants cannot confer right on him. Unless the alleged exchange is evidenced by registered document, it cannot be taken note of. 10. The defendant has no case that the value of the property is less Rs.100/-. The findings of the courts below that an exchange as contended may be probable but in the absence of a registered deed it cannot be taken note of, and justified. There cannot be an oral exchange. 11. However, the courts below though on different reasons have granted value of improvements to the defendant. Going by the provisions relied on by the courts below finding seems to be justified and that portion of decree does not call for interference. 12. S.A.No.821/1999, the claim for the mesne profit is without any merits whatsoever. There was no attempt from the side of the plaintiff to adduce evidence to show the income derived from the property and both the courts below have refused to award future mesne profit. S.A.Nos. 655 & 820 of 1999 7 The result is that these Second Appeals are without merits. No grounds are made out to interfere with the judgment and decree of the lower courts. These appeals are accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln