IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 Ex.FA.No. 19 of 2010() ---------------------- AGAINST THE ORDER DATED 08/02/2010 IN EP 90/07,EA 212/2008 IN OS.6/1995 of SUB COURT,NEYYATTINKARA .................... (S): APPELLANT/CLAIM PETITIONER ---------------------------------------------- YATHEENDRA RAJ,S/O.SUKUMARAN,P.S.BHAVAN, MUKUNDARA DESOM,KALLIKKADU VILLAGE. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.K.S.BHARATHAN RESPONDENT(S): COUNTER PETITIONERS/PLAINTIFFS & DEFENDANTS ---------------------------------------------------------- 1. GOPINATHAN NAIR,S/O.VASUDEVAN NAIR, CHANNEKKAL VEEDU,VENGANOOR DESOM,VIZHINJAM VILLAGE 2. VILASINI AMMA,D/O.KAMALAMMA PILLAI, CHANNEKKAL VEEDU,VENGANOOR DESOM,VIZHINJAM VILLAGE 3. LALITHA,D/O.DHAKSHAYANI AMMA,'DARSANA' VENGANOOR DESOM,VIZHINJAM VILLAGE. 4. RAHUL,S/O.SUDARSANAN NADAR, DARSANA,VENGANOOR DESOM,VIZHINJAM VILLAGE. 5. RAJEEV,S/O.SUDARSANAN NADAR,DARSANA, VENGANOOR DESOM, VIZHINJAM VILLAGE. ADV. SRI.J.S.ANIL KUMAR SRI.P.R.VENKETESH FOR R3-4 SRI.P.C.CHACKO(PARATHANAM) FOR R3-4 SRI.J.S.AJITHKUMAR FOR R1 & R2 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2010 , PASSED THE FOLLOWING: HARUN -UL- RASHID, J --------------------------------- Ex.F.A.NO.19 OF 2010 -------------------------------- Dated this the 15th day of July, 2010. JUDGMENT The appellant is the claim petitioner. He filed E.A.No.212/2008 in E.P.No.90/2007 in O.S.No.6/1995 on the file of the Sub Court, Neyyattinkara. The claim petition was filed under Order XX1 Rule 97, 98, 99 read with 151 of the Code of Civil Procedure. The prayer in the claim petition is for a declaration that decree in O.S.No.6/1995 and execution proceedings are not binding on the petitioner or on the plaint schedule property in O.S.No.6/1995. The court below dismissed the claim petition. The parties hereinafter are referred to as the claim petitioner, plaintiffs and defendants. 2. The counter petitioners 1 and 2 in the claim petition are the 1st and 2nd plaintiffs in O.S.No.6/1995. Counter petitioner No.3 is the 2nd defendant in the suit. Counter petitioners 4 and 5 are the legal heirs of deceased 1st defendant who were impleaded as defendant Nos.3 and 4. 3. O.S.No.6/1995 is a suit for declaration of title and recovery of possession. Plaint A schedule item No.1 is 16.5 Ex.F.A.NO.19 OF 2010 2 cents of land and item No.2 is also having the same extent of 16.5 cents. Plaint B schedule residential building is situated in A schedule item No.1. The plaintiffs claimed title to the plaint schedule properties by virtue of two sale deeds, namely sale deed No.1880/1994 in respect of schedule item No.1 and sale deed No.1881/1994 in respect of schedule item No.2. The vendors of items 1 and 2 are the defendants. The defendants continued to occupy the plaint B schedule building, even after sale of A schedule items therefore, the suit was filed for declaration of title of plaint schedule item No.1 and 2 and for recovery of possession of plaint B schedule building. The suit was originally decreed by judgment dated 19.11.1997 in appeal the matter was remanded for fresh consideration. After remand the trial court by judgment dated 14th August, 2002 decreed the suit. The decree and judgment are confirmed in appeal. 4. The defendants set up rival title to the plaint schedule properties. In addition to the written statement they have filed counter claim. They sought for declaration of their title and possession of plaint schedule properties and to declare that the Ex.F.A.NO.19 OF 2010 3 sale deeds in the name of the plaintiffs are sham and inoperative documents. The trial court by judgment dated 14.8.2002 decreed the suit and dismissed the counter claim. The trial court declared the title and possession of the plaintiffs over the plaint schedule properties and granted a perpetual injunction restraining the defendants from interfering with the plaintiffs right over the plaint schedule properties and from committing any act or waste or mischief in the plaint schedule properties. The plaintiffs are also allowed to recover certain sum for use and occupation of the building. 5. The defendants filed A.S.No.515/2002 before this court challenging the decree and judgment of the trial court. No appeal was filed against the dismissal of the counter claim. By judgment dated 30th April, 2009 this Court confirmed the findings of the trial court and dismissed the appeal. Thus the decree and judgment passed in O.S.6/1995 has become final. The decree holders filed execution petition. Pending execution, the claim petitioner filed the claim petition claiming title and possession over the decree schedule property in O.S.6/1995. Ex.F.A.NO.19 OF 2010 4 6. The plaintiff in the suit filed E.P.90/2007 for execution of the decree and the appellant herein filed the claim petition. The case of the claim petitioner in brief is as follows: 7. On 27.2.1992 the defendants 1 and 2 (judgment debtors) executed a sale agreement in favour of the petitioner. The defendants agreed to sell the petition schedule property and the building therein for an amount of Rs.80,000/- and received Rs.70,000/- as advance. The defendants further agreed to execute the sale deed within 6 months. The defendants did not execute the sale deed as agreed, therefore, the claim petitioner filed O.S.No.427/1999 before the Munsiff's Court, Neyyattinkara for specific performance of the contract for sale. The suit was decreed. The petitioner filed execution petition and the same is pending. 8. According to the claim petitioner the defendants joined hands with the plaintiffs and executed an agreement for sale and thereafter executed the two sale deeds in favour of the plaintiffs in 1994. It is alleged that the intention of the plaintiffs and defendants was to cheat the claim petitioner and to defeat his Ex.F.A.NO.19 OF 2010 5 claim of enforcement of the agreement dated 27.2.1992. The claim petition was filed for a declaration that the sale deeds in favour of the plaintiffs and the decree in O.S. No.6/1995 are not binding on the claim petitioner. 9. In the counter filed by the 1st plaintiff, it is contended that the sale agreement relied on by the petitioner is a forged document and the same is created in order to defeat the decree passed in O.S.No.6/1995. The 1st plaintiff also referred to the suit filed in the year 1999 by the claim petitioner as O.S.427/1999 for a decree for specific performance of the agreement. The alleged sale agreement in favour of the claim petitioner is dated 27.2.1992 and it is further alleged that the defendants agreed to execute sale deed within 6 months. The suit for specific performance on the face of it is barred by limitation and was filed after a period of 7 years from the date of agreement. The suit was decreed exparte. The defendants did not contest the suit. Therefore, it is submitted that the agreement and decree passed based on the agreement are obtained by fraudulent act on the part of the claim petitioner and Ex.F.A.NO.19 OF 2010 6 the defendants who are the judgment debtors. It is also contended that the defendants had no saleable interest in the property in 1999 ie at the time of filing of the suit for specific performance and therefore, for that reason also the decree passed in O.S.No.427/1999 is not valid in the eye of law. 10. The claimant produced an agreement for sale dated 27.2.1992. The agreement was executed by the defendants 1 and 2 in favour of the claimant. It is recited in the agreement that the defendants 1 and 2 shall execute the sale deed within 6 months. It is not stated as to why the claim petitioner has not resorted to any legal remedies after 6 months that too for a long number of years. The claim petition is silent about claim petitioner's inaction. The claim petitioner after 7 years filed suit No.427/1999 for specific performance of the agreement dated 27.2.1992. The defendants 1 and 2 did not contest the suit, they remained exparte. Trial court passed an exparte decree granting the decree for specific performance . 11. The period between the agreement dated 27.2.1992 and filing of the suit namely O.S.427/1999, is the period of Ex.F.A.NO.19 OF 2010 7 litigation between the plaintiffs and defendants in O.S.6/1995. In 1995 plaintiffs filed O.S.6/1995 for declaration of title over item 1 and 2 and for recovery of plaint B schedule building. The property in the suit is the same property now claimed by the claim petitioner. The said suit was seriously contested by the defendants. The appeal preferred by the defendants was also dismissed. The plaintiffs filed execution petition to execute the decree. 12. Claim petitioner produced Ext.A2 judgment and Ext.A3 decree in O.S.427/1993 filed by him. The exparte decree in the said suit was passed on 21.7.2000. The claim petitioner also produced Ext.A4 sale deed executed by the legal heirs of defendants 1 and 2 on 24.3.2009 in favour of the claim petitioner. 13. The defendants 1 and 2 executed sale deed Nos.1880/1994 and 1881/1994 in the year 1994 in favour of the plaintiffs in O.S.6/1995. The sale deeds were executed by the defendants 1 and 2 in the suit. Subsequently, the very same defendants denied the title of the plaintiff and therefore, the Ex.F.A.NO.19 OF 2010 8 plaintiffs filed O.S.6/1995 and obtained the decree in the suit. The decree was passed against defendants 1 and 2 declaring that the plaintiffs have title and possession over the plaint items 1 and 2 and further ordered recovery of plaint B schedule building. The very same person, who had executed the sale deeds in 1994 referred above, again executed Ext.A4 sale deed in 2009 in favour of the claim petitioner. The totality of the circumstances has to be assessed and appreciated for the purpose of deciding the claim petition. The defendants/judgment debtors contested O.S.No.6/1995, at the same time chose not to contest the suit filed by the claim petitioner. Ext.A4 sale deed was executed on 24.2.2009 pending appeal No.515/2002 filed against the decree and judgment in O.S.6/1995. The execution of the sale deed is after suffering the decree in O.S.6/1995 against them. The claim petitioner did not file any execution petition though he obtained an exparte decree on 21.7.2000. After a period of about 9 years the judgment debtors executed Ext.A4 sale deed in favour of the claim petitioner. 14. The learned Senior counsel who appeared for the Ex.F.A.NO.19 OF 2010 9 appellant referring to Ext.A1 agreement submitted that existing obligation under the said agreement will prevail over the subsequent transaction. The learned Senior counsel placed reliance on the decision reported in [2002 (3) Supreme Court Cases 676] SHRIMANT SHAMRAO SURYAVANSHI AND ANOTHER v PRALHAD BHAIROBA SURYAVANSHI AND OTHERS and submitted that person obtaining possession of the property in part-performance of an agreement of sale, held, can defend his possession in a suit for recovery of possession filed by the transferor or by subsequent transferee of the property claiming under him, even if a suit for specific performance of the agreement of sale has become barred by limitation. The learned Senior counsel also referred to the Apex court decision MAHADEVA AND OTHERS V TANABAI reported in (2004) 5 Supreme Court Cases 88 and contended that merely because suit for specific performance at instance of vendee has become barred by limitation or that plea of acquisition of title by adverse possession has been negatived and that possession was therefore illegal, held, not by itself enough to deny benefit of plea under Ex.F.A.NO.19 OF 2010 10 Section 53-A. The learned counsel also cited HUVAPPA IRAPPA BALLARI V BASAVA AND ANOTHER reported in (2005) 12 Supreme Court Cases 164, the apex court held that person obtaining possession in part-performance of agreement of sale following Shrimant Shamrao,(2002)3 SCC 676, such person can defend his possession in suit for recovery of possession filed by vendor-transferor, even if suit for specific performance of agreement of sale had become barred by limitation. I have already referred to the facts and circumstances that led to the filing of the claim petition. The facts and the principles laid down by the Apex court in the above referred decisions have no application to the facts of this case. This is a case, where the claim petitioner and judgment debtors created very many documents to defeat the decree passed in OS 6/1995. Therefore, the contentions raised by the learned Senior counsel based on the principles laid down by the Apex court in the above mentioned decision are not acceptable, since the contentions have no factual or legal foundations. 15. The execution of the agreement dated 27.2.1992, filing Ex.F.A.NO.19 OF 2010 11 of the suit, O.S.427/1999, the defendant remaining exparte in the suit, the decree holders not filing execution petition to execute the decree in O.S.No.427/1999 and the execution of Ext.A4 sale deed after a period of 9 years of the decree are joint acts of the claim petitioner and the judgment debtors calculated to defeat the decree passed in O.S.6/1995. The context under which the above said acts were done during different periods and taking into account the totality of the facts and circumstances of the case, the only conclusion possible is that the acts done by the claim petitioner are collusive act with the connivance of the judgment debtors. The only motive behind the execution of Ext.A1 agreement, obtaining of exparte decree, non filing of execution petition and the execution of Ext.A4 sale deed are all done with ulterior motive. The only motive being to defeat the decree and judgment finally passed by the court below in O.S.6/1995. 16. In the claim petition also the judgment debtors remained absent. They did not contest the claim petition. The court below also examined the facts and circumstances and the Ex.F.A.NO.19 OF 2010 12 context under which Ext.A1 agreement, Ext.A4 sale deed etc. are executed and rightly held that the said documents are intended to defeat the decree passed in the suit. 17. Ext.A4 document was executed on 24.3.2009 during the pendency of A.S. No.515/2002 on the file of this Court. The said appeal was filed by the defendant/judgment debtors challenging the decree and judgment in O.S.6/1995. The execution court relied on the decision of the Apex court in 2008 (4) KLT 265, AIR Supreme Court 133(2), 2008(3) KLT 848 (Supreme Court). 2008(2) ILR 473 and held that the claim petitioner had purchased the property while O.S.6/1995 was pending and that the sale is hit by lis pendence and hence the claim petitioner has got no right over the property. The execution court rightly held the sale deed in favour of the claim petitioner is hit by lis pendence. The sale deed is invalid for the reason also that there cannot be a second sale deed by the very same person. The defendants in O.S.No.6/1995 are incompetent to execute sale deed in favour of the claim petitioner because they have already sold the properties to the decree holders in Ex.F.A.NO.19 OF 2010 13 1994. Admittedly, the judgment debtors executed sale deeds in the year 1994 in favour of the plaintiffs. The suit in O.S.No.6/1995 is originated on the basis of the sale deed executed by the defendants in favour of the plaintiffs. The very same defendants who had suffered decree in O.S.6/1995 executed Ext.A4 sale deed in favour of the claim petitioner. The claim petitioner did not get any right or title over the plaint schedule properties on the strength of sale deed executed by the vendors who have no right over the property at the time of execution of Ext.A4 sale deed. For all these reasons claim petition is devoid of any merit. The court below rightly dismissed the claim petition with costs. In the result, the appeal fails and accordingly, dismissed with costs. HARUN-UL-RASHID, JUDGE. pm