IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 SA.No. 364 of 1999(B) ------------------------------ [AS.NO.736/1994 OF SUB COURT,NEYYATTINKARA, OS.NO.75/1992 OF II ADDITIONAL MUNSIFF COURT, NEYYATTINKARA] .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- KRISHNANKUTTY, S/O. PADMANABHAN NADAR, AGED 40, `GAYATHRI', KOTTAPPANA WARD, MARUTHOOR DESOM, NEYYATTINKARA VILLAGE FROM, PANAYARATHALAVILAKATHU PUTHEN VEEDU, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE. BY ADVS. SRI.G.S.REGHUNATH, SRI.MOHAN JACOB GEORGE. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. MADHU, S/O. PADMANABHAN NADAR, AGED ABOUT 38, PANAYARATHALA VILAKATHU PUTHEN VEEDU, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE. 2. SAROJAM, W/O. 1ST RESPONDENT, AGED ABOUT 32, OF DO. DO. R1 & R2 BY ADVS. SRI.B.KRISHNA MANI, SRI.V.PREMCHAND. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ---------------------------------------------- SA No.364 of 1999 ---------------------------------------------- Dated this the 19th day of January 2011 Judgment The courts below found an easy method of disposing of the suits. It is quite unfortunate. 2. The plaintiff is the appellant. According to him, 21.5 cents of property including the plaint schedule property, originally belonged to his father. 15 cents of property was gifted by his father to his sister Kamalamma and her husband as per Ext.A1 settlement deed dated 01.10.1980. The allegation in the plaint is as follows : Kamalamma and her husband wanted to sell their property and expressed their desire to do so. The plaintiff offered to purchase the same. Since the plaintiff had gone abroad, he entrusted the first defendant to negotiate and settle the matter. The plaintiff would claim that amounts were sent by him from abroad to the first defendant and utilising that amount, the property was purchased. However, SA 364/99 2 mischievously, it is stated that the properties were purchased in the joint names of the plaintiff as well as the first defendant. The plaintiff laid the suit for a declaration and recovery of possession, claiming that the entire property belongs to him and the first defendant has no manner of right over the property. 3. The suit was resisted by the first defendant. The second defendant is his wife. According to him, the plaint claim is not correct. It is seen that he admitted that he had received two cheques from the plaintiff, but that was utilised for other purposes and not for the purpose of purchasing the property. Going by the written statement, it is contended by the first defendant that he too had contributed for purchasing the property from Kamalamma and her husband, who had assigned the property to the first defendant. It was pointed out that the suit is barred by limitation. 4. Based on the above pleadings, necessary issues were framed by the courts below. The evidence SA 364/99 3 consists of the testimony of PW1 and documents marked as Exts.A1 to A11 from the side of the plaintiff. The defendants examined DW1 and had Exts.B1 to B7 marked. 5. The trial court accepted the plea of the first defendant that the suit property is not identifiable and also that the suit is barred by limitation and thus dismissed the suit without going into the other issues raised. 6. The plaintiff carried the matter in appeal as AS No.736/94 before the Sub Court, Neyyattinkara. The lower appellate court concurred with the trial court and dismissed the appeal. Hence the second appeal. 7. Notice is seen issued on the following substantial questions of law raised in this second appeal : “a) Is not the first defendant estopped from disputing the description of plaint schedule property in view of the description of property in Ext.A5 admittedly taken by 1st defendant. b) Is not the defendant estopped from contending that the consideration recited in SA 364/99 4 Ext.A5 is not the actual consideration paid. c) Is not the contention of the defendant that the consideration recited in Ext.A5 is not correct barred by Section 91 and 92 of the Evidence Act ? d) Is not the defendant precluded from adducing evidence that the consideration recited in Ext.A5 is more than what is shown there. e) Has the lower court acted legally in casting the burden of proof on plaintiff to show that the amount recited in Ext.A5 is the consideration payed for taking the document. f) The defendant having admitted that he received Rs.14,750/- from the plaintiff on whom does the burden of proof lie to prove that the amount recited in Ext.A5 was not paid from that amount. g) Is not the court bound to hold that the defendant is in a fiduciary relationship with the SA 364/99 5 plaintiff and so he is a trustee of the plaintiff regarding the amounts entrusted to him for purchase of the property. h) Is the finding of the lower courts that the suit is barred by limitation correct ?” 8. At the outset itself, it may be observed that the judgments and decree of both the courts below are clearly unsustainable both in law and on facts. Both the courts below have not tried to understand the case put forward by the plaintiff and have rendered a decision on conjectures and surmises. It is very clear from the evidence and pleadings that the defendant was not disputing the identity of the property with regard to which the suit was laid. Moreover, the plaintiff had produced the relevant documents along with the plaint and necessarily, those documents formed part of the pleadings. 9. Both the courts below merely based on the description in the plaint schedule, came to the conclusion that the property is not properly described. SA 364/99 6 10. The other ground on which the plaintiff was non-suited, was on the ground of limitation. The courts below took the view that Ext.A5 is of the year 1985 and the suit was laid only in 1992. The plaintiff was fully aware of the execution of Ext.A5 and if he had any grievance, he should have taken appropriate steps within three years of the date of knowledge of the same. Whatever that be, the courts below have omitted to consider the various aspects regarding the plea of limitation. It may be noticed that the definite stand taken by the plaintiff was that the property was agreed to be sold to him and it was utilising his funds that the property was purchased. His definite case is that the first defendant had not contributed any amount for the purchase and the property solely belongs to him. Of course, the first defendant contends otherwise. He says that he too had contributed for purchasing the property from Kamalamma and her husband. But, as rightly pointed out by the learned counsel for the appellant, if it was shown that the property was purchased utilising the funds of the SA 364/99 7 plaintiff alone, then the status of the first defendant may be different and he may be only a trustee in which the plea of limitation may not be available. Apart from all these facts, the courts below have not decided the other issues involved in the case. It is well settled that the trial court has to decide all the issues unless the issue treated as the preliminary issue, based on which the suit can be disposed of. Moreover, evidence was adduced by the plaintiff. So, it was only appropriate on the part of the courts below to go into the merits of the case . At any rate, the judgment and decree of the courts below are clearly unsustainable both in law and on facts. 11. Accordingly, this appeal is allowed. The judgments and the decree of the courts below are set aside and the suit is remanded to the trial court for fresh disposal in accordance with law and in the light of what is stated herein above. The parties will appear before the trial court on 29.02.2011. They will be free to adduce further evidence if they so choose. Being a suit of the year 1992, the trial SA 364/99 8 court may make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within nine months from the date of appearance of the parties. P.Bhavadasan, Judge sta SA 364/99 9