IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 AS.No. 474 of 1996() -------------------- OS.241/1994 of PRL.S.C.,THALASSERY .................... APPELLANT/DEFENDANT: -------------- CHENNAPPOYIL DARAPPAN, S/O. KUNKAN, AGRICULTURIST, RESIDING AT KOLAYAD AMSOM DESOM, P.O. KOLAYAD, VIA, CHIRRARIPARAMBA, TELLICHERRY TALUK. BY ADV. MR. K.V.SOHAN MR. P.M.BALASUBRAMANIAM RESPONDENT/PLAINTIFF: --------------- K.K. RAMESAN, S/O. ANANDAN, AGRICULTURIST, RESIDING AT PADUVILAYI AMSOM, VENGAD DESOM, TELLICHERRY TALUK. ADV. MR. K.RAMAKUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.474/96 ORDER ON C.MP.3017 OF 1996 IN A.S. 474 OF 1996 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 24.3.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- A.S.No. 474 OF 1996 -------------------------------------------------- Dated this the 24th day of March, 2009 J U D G M E N T Defendant in O.S.241 of 1994 on the file of Sub Court, Thalassery is the appellant. Plaintiff is the respondent. Respondent instituted the suit for realisation of Rs.36,000/- with interest allegedly paid by him under Ext.A1 document executed by the appellant. It is the case of the respondent that during the first week of January 1994 he came to know that appellant used to entrust melpattam of his cashew garden having an extent of 15.94 acres in R.S.No.7/1A and 1/1A, 2/2 and 3 of Kolayad amsom desom and on 10.1.1994 he approached the appellant and informed his willingness to obtain the cashew trees on melpattam right and appellant took him to the property and showed him the cashew trees and thereafter appellant and respondent entered into an oral agreement fixing the consideration to collect cashewnuts from the property for the period upto 30.6.1994 at Rs.31,000/-. It was contended that on the basis of the said oral agreement and as permitted by the A.S.474/96 2 appellant, respondent spent Rs.5,000/- for clearing the forest growth from the cashew garden, to enable him to collect cashewnuts and as per the oral agreement he paid Rs.31,000/- to the appellant on 15.2.1994 and to evidence the transaction Ext.A1 document was executed by the appellant in the presence of attesting witnesses in a stamp paper. It was further contended that during the first week of March 1994 when respondent went to the property to collect cashewnuts, it was prevented by the son of the brother of the appellant claiming that they have also got right and when respondent approached the appellant he promised to settle the dispute on or before 12.3.1994 and when it was not settled respondent sent Ext.A2 notice claiming back Rs.31,000/- received by the appellant, but appellant did not return the amount and therefore he is entitled to realise the amount with interest. 2. Appellant resisted the suit contending that he did not execute Ext.A1 document and did not enter into an oral agreement as alleged and did not receive Rs.31,000/- and did not permit respondent to pluck the cashewnuts or to clear the forest growth. According to the appellant, respondent approached him A.S.474/96 3 to get the right to collect usufructs and he promised to pay Rs.30,000/- which was not agreeable to the appellant and appellant also informed that he is not the absolute owner and others have also got right and their permission is also to be taken and it would fetch more money if the right to collect usufructs is granted and still respondent insisted the appellant to receive a token advance and appellant therefore received Rs.3,000/- from the respondent as token advance and as insisted by the respondent he had affixed his signature in a blank white paper and had given it to the respondent and the agreement is created making use of the signed blank paper and Ext.A1 is not a document executed by the appellant and therefore respondent is not entitled to pay any amount. 3. Learned Sub Judge after framing necessary issues recorded the evidence of respondent as PW1 and that of one of the witnesses to Ext.A1 as PW2 and marked Exts.A1 and A2 on the side of the respondent. Appellant was examined as DW1 and the person who had earlier taken the right to collect usufructs was examined as DW2 and a witness, who was allegedly present when appellant returned Rs.3,000/- to the respondent, was A.S.474/96 4 examined as DW3 and Ext.B1 partition deed in respect of his family was also marked. 4. Learned Sub Judge on the evidence accepted the case of PWs 1 and 2 disbelieving the evidence of DWs1 to 3 and found that Ext.A1 was executed by the appellant. Based on that finding the learned Sub Judge found that appellant also received Rs.31,000/-, the consideration shown in Ext.A1 and granted a decree in favour of the respondent to realize Rs.31,000/- covered under Ext.A1 and Rs.5,000/- which was allegedly spent by the respondent to clear the forest. The defendant has filed this appeal challenging the judgment. 5. Appellant contended that learned Sub Judge did not properly appreciate the evidence. It was contended that Ext.A1 should not have been accepted by the trial court when there is no thumb impression in the stamp paper in Ext.A1 and the evidence of PW1 was that appellant had affixed his thumb impression in the stamp paper. It was also contended that when existence of an oral agreement is not seen in Ext.A1, learned Sub Judge should not have accepted the evidence and the evidence of PW2 should not have been relied on and when there is no A.S.474/96 5 evidence to prove that appellant received Rs.31,000/- from the respondent or respondent spent Rs.5,000/- for clearing the forest, a decree should not be granted. 6. Learned counsel appearing for appellant and the respondent were heard. 7. Ext.A1 notice discloses the first version of the respondent with regard to the transaction. What is stated in Ext.A2 notice is that on 10.1.1994 appellant had orally agreed to permit respondent to pluck cashew nuts from 15.94 acres in RS.No.7/1A,1/1A, 2/2 and 3 till 30.6.1994 for Rs.31,000/- and thereafter respondent was permitted to clear the forest and he spent Rs.5,000/- and cleared the forest growth and thereafter as per the oral agreement, on 15.2.1994 Rs.31,000/- was paid by the respondent to the appellant and on the same day in the presence of the attesting witnesses appellant executed a pattam deed in a twenty rupees stamp paper and affixed his signature as well as thumb impression and thereafter when respondent went to the property to pluck cashewnuts, it was objected to by the son of his brother and they claimed right over the property and in spite of promise by the appellant to settle the dispute with his A.S.474/96 6 brothers by 12.3.1994 it was not settled and as respondent could not take the usufructs appellant is bound to return Rs.31,000/- received from the respondent as well as Rs.5,000/- which was spent by the respondent for clearing the forest, along with Rs.40,000/-, which would have been the profit which the respondent would have derived if he could pluck the cashew nuts as agreed. When the suit was filed, there was a further development in the plaint. As per the plaint allegation knowing that appellant used to give the right to take usufructs of cashew trees, he approached the appellant on 10.1.1994 and appellant took him to the cashew garden and getting satisfied about the cashew trees, an oral agreement was entered into between respondent and appellant whereunder respondent was permitted to pluck cashewnuts upto 30.6.1994 for a consideration of Rs.31,000/-. Neither in Ext.A2 nor in the plaint it is stated that there was a further agreement on that date enabling the respondent to clear the forest growth. On the other hand, a reading of the plaint shows that subsequently as permitted by the appellant, the forest growth was cleared spending Rs.5,000/-. So also neither in Ext.A2 nor in the plaint it was stated that there A.S.474/96 7 was a further agreement between the parties that the consideration would be paid on 15.2.1994 at such and such place so that appellant could be there and an agreement could be executed. Whatever it be, what is stated is that as agreed on 15.2.1994, respondent paid Rs.31,000/-, the consideration due under the oral agreement and to evidence the transaction Ext.A1 document was executed. Therefore the case is not that the transaction was under Ext.A1 document. Instead there was an oral agreement and when consideration was paid, to evidence the transaction, a document was executed. Executing a document evidencing a previous transaction and a transaction which was created by executing a document are different. Therefore the case of the respondent is not that a transaction was created under Ext.A1. But there was an oral agreement and to evidence the transaction, at the time of paying the consideration, Ext.A1 was executed. With this in mind Ext.A1 is to be analysed. 8. Ext.A1 is silent about any previous transaction much less an oral agreement on 10.1.1994 it is not only the conspicuous absence of an oral agreement dated 10.1.1994, but A.S.474/96 8 Ext.A1 shows that the transaction was created under the document. What is stated in Ext.A1 is that appellant and respondent therein agreed to permit respondent to pluck the cashewnuts from the property belonging to and in his possession in RS.No.7/1A, 1/1A1, 2/2 and 3 of Kolayad village till 30.6.1994 for a consideration of Rs.31,000/- and Rs.31,000/- was received by the appellant and he thereunder permitted the respondent to pluck the cashewnuts within the period. If there was an oral agreement on 10.1.1994 and Ext.A1 was executed, as alleged in the plaint, to evidence that transaction what would have been stated in Ext.A1 is not that a right is given thereunder, but an agreement was entered into on 10.1.1994 and when the consideration due thereunder was paid, the document was executed to evidence that transaction. Therefore Ext.A1 instead of supporting the case of the respondent, disproved the existence of an oral agreement prior to the date of its execution on 15.2.1994. 9. According to the evidence of the respondent as PW1, after the oral agreement on 10.1.1994 and before the execution of Ext.A1 on 15.2.1994, respondent was permitted by the A.S.474/96 9 appellant to clear the wild bushes and he spent Rs.5,000/- and cleared the forest growth from the cashew trees so as to enable him to collect the cashewnuts. If there was such an agreement and respondent and as permitted by the appellant he had cleared the forest growth by spending Rs.5,000/-, it would have been shown in Ext.A1. The conspicuous absence of such a case in Ext.A1 also goes a long way to disbelieve the case of the respondents. 10. Learned Sub Judge did not properly appreciate the evidence. In fact the appreciation of evidence was perverse. Appellant nowhere admitted execution of Ext.A1 document. He only admitted that when he received a token advance for Rs.3,000/- as insisted by the respondent, he had affixed his thumb impression in a blank paper and handed it over to the respondent. Admission of the signature or thumb impression in a blank paper does not tantamount to admission of execution of the document. When execution is denied, it is for the person who claims that the document was executed, to prove that in fact the other party executed the document. On the other hand, if the defendant is admitting that he executed the document, but A.S.474/96 10 further contends that the document is vitiated by fraud or misrepresentation, the burden is on the defendant to prove that there was any vitiating circumstance which makes the document void. Unfortunately learned Sub Judge did not follow this basic principle and proceeded as if admission of the thumb impression in a blank paper is an admission of execution of a document. Learned Sub Judge did not analyse the evidence of PW1 and PW2, who claimed that he had witnessed the transaction and also execution of Ext.A1 by the appellant and instead finding that there is no reason for PW2 to depose against the appellant or in favour of the respondent, accepted his evidence and that too for the reason that the appellant did not establish that he did not receive the consideration. The very approach is fundamentally erroneous. Therefore it is necessary to re-appreciate the evidence to find out whether by evidence of PWs 1 and 2 about execution of Ext.A1 and receipt of the consideration of Rs.31,000/- as stated therein is proved by the respondent. 11. If we are to believe the evidence of PW1, appellant executed Ext.A1 in the presence of two witnesses Jose and Joy. But Ext.A1 shows that the witnesses were Jose and Joseph. The A.S.474/96 11 said Jose was examined as PW2. In cross-examination PW1 stated that one of the witnesses was Joseph as seen in Ext.A1. But he has no case that Joy referred to in chief examination is the same Joseph. Again the evidence of PW1 is that appellant affixed his signature and thumb impression in both the stamp paper as well as white paper. Ext.A1 is seen written in a twenty rupees stamp paper as well as an additional white paper. Ext.A1 contains the thumb impression of the appellant only in the white paper and there is no thumb impression in the stamp paper. In Ext.A2 notice as well as in the plaint what was contended by the respondent was that appellant had affixed his signature and thumb impression in the stamp paper. In cross-examination PW1 unambiguously deposed that appellant affixed his thumb impression in the stamp paper. If that be the case, stamp paper of Ext.A1 should contain the thumb impression of the appellant. But there is no such thumb impression. 12. Learned counsel appearing for the appellant pointed out that a very look of Ext.A1 casts doubt about its genuineness. It was pointed out that if a document is written in a stamp paper and an additional sheet, the signature of the executant would be A.S.474/96 12 above the signature of the attesting witnesses and when the document is written by a scribe, the name of the scribe would be seen on the bottom of the document with his signature. Ext.A1 shows that in the second page, the thumb impression is taken almost at the bottom of the page and above that thumb impression is the signature purported to be that of the appellant. To its left is the signatures of the two attesting witnesses. Except writing the names of the attesting witnesses and the area neither the name of their fathers or their addresses which would normally be written by a scribe are not shown. As rightly pointed out by learned counsel appearing for appellant in the normal course if a document is written by the document writer as claimed by PWs 1 and 2, executant would have signed above the signature of the attesting witnesses and the details of the attesting witnesses including their addresses and name of father would be shown in the document. Except showing the names of the witnesses, from Ext.A1 the identity of the attesting witnesses cannot be fixed. Even the name of the scribe is not shown. If we are to believe the evidence of PW1, Ext.A1 was written by the scribe Bhaskaran. But in cross-examination he deposed that A.S.474/96 13 scribe was one “Vasuvettan”. But even in chief examination he had no case that scribe Vasu was present when the document was written or executed. If we are to believe the evidence of PW1 the attesting witnesses had written their names and thereafter signed in the document. A perusal of Ext.A1 shows that both the names are written by the same person who had written the document. PW2 was examined on the next day of examination of PW1. Evidence of PW2 shows that he had gone to the office of the respondent's Advocate and evidently received instructions as to what evidence he has to be tender. PW2 deposed that his name as well as the name of the other witnesses was written by the scribe. Evidence of PW2 shows that he is a friend of the respondent. A proper appreciation of the evidence of PW2 shows that his evidence cannot be believed. According to PW2, in the agreement written in his presence the previous oral agreement, which was entered into by the appellant and respondent, was stated. But Ext.A1 does not contain any recital of an earlier oral agreement. Though PW1 stated that PW2 was present at the time of the oral agreement and PW2 corroborated that case, neither in Ext.A2 notice nor in the plaint respondent A.S.474/96 14 has a case that when he approached the appellant for getting the right to collect usufructs from the cashew trees, the attesting witnesses to Ext.A1 were present. If PW2 was present at that time, that fact would have been at least disclosed in the plaint. When PW2 had given evidence in support of all the versions of PW1, it is clear that he is deposing in favour of the appellant only to help the respondent who is his friend. Therefore no value could be attached to his evidence. 13. Evidence of PW1 establish that before Ext.A1 agreement was executed the title deed of the property was verified. If that be so, case of respondent that he was not aware of the fact that appellant has no exclusive right or that he was only a co-owner with others, cannot be believed. If that be so, the very case of the respondent can only be disbelieved. 14. Learned counsel appearing for the respondent argued that in spite of receipt of Ext.A2 notice, appellant did not send a reply and if in fact he had not received Rs.31,000/- he would have sent a reply. True, the non sending of a reply is an aspect which would cast doubt about the version of DW1. But on that basis alone respondent cannot be granted a decree,l unless he A.S.474/96 15 could establish that Ext.A1 was executed by the appellant after receiving the consideration stated therein. On appreciating the entire evidence, I find no acceptable evidence or circumstance to hold that appellant had received Rs.31,000/- or executed Ext.A1. The evidence of PW1 and PW2 cannot be relied on. The respondent has not examined the other attesting witness or the scribe. On the evidence, it can only be found that respondent did not establish that he had paid Rs.31,000/- or appellant received it or executed Ext.A1. Therefore respondent is not entitled to the decree for realisation of Rs.31,000/- granted by the trial court. Even though the trial court had granted a decree for realisation of Rs.5,000/- stating that it is the amount spent by the respondent for clearing the forest growth, when the agreement itself is not proved he is not entitled to claim any such amount. Moreover, even if there was an agreement, there is no evidence to prove that respondent had in fact spent Rs.5,000/- for clearing the forest. Therefore respondent is also not entitled to the amount of Rs.5,000/- claimed as the amount spent for clearing of forest. 15. But appellant has admitted that he had received A.S.474/96 16 Rs.3,000/- as token advance from the respondent for entering into a contract with regard to the collection of usufructs. According to the appellant that amount was repaid and when Rs.3,000/- was received by him as insisted by the respondent a blank signed paper was given. DW3 was examined to support his case that Rs.3,000/- was repaid to the respondent. A scrutiny of the evidence of DW3 establish that he is a henchman of the appellant and his evidence cannot be believed. Apart from the assertion of the appellant that he had repaid Rs.3,000/-, no other evidence was adduced to prove the return of the amount received by the appellant. If in fact appellant had returned Rs.3,000/-, admittedly received by him as token advance, he would have insisted for return of the signed blank paper. Though appellant stated that respondent disclosed that it was lost, his evidence as DW1 was that PW1 stated that it will be searched out and given later. Therefore that version of DW1 against the pleading cannot be believed. Therefore even though there is no evidence to prove that appellant received Rs.31,000/- and executed Ext.A1 agreement, the admission of the appellant establish that as token advance he received Rs.3,000/- from the A.S.474/96 17 respondent. Though appellant contended that he had repaid Rs.3,000/-, there is no evidence to establish the repayment. Therefore on the admission of the appellant and for his failure to prove the discharge, respondent is entitled to get a decree for realisation of Rs.3,000/- with interest. Therefore to that extent the decree is modified. Appeal is allowed in part. The decree passed by the Sub Judge, Thalassery in O.S.241 of 1994 is set aside. Plaintiff/Respondent is entitled to a decree directing appellant/defendant to pay Rs.3,000/- with interest @ 6% per annum from the date of suit till realisation and proportionate cost. M. SASIDHARAN NAMBIAR, JUDGE okb