IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 RSA.No. 344 of 2004() --------------------- AS.30/2000 of ADDITIONAL DISTRICT COURT (ADHOC) (FAST TRACK ) THRISSUR OS.1291/1997 of II ADDL.MUNSIFF COURT.,THRISSUR .................... APPELLANT/APPELLANT/1ST DEFENDANT ----------------------------------------------------- RAMACHANDRAN, S/O. KRISHNAN, EDATHEDATHU HOUSE, PUZHAKKAL VILLAGE, DESOM, THRISSUR TALUK. BY ADV. SRI.N.P.SAMUEL RESPONDENT(S): RESPONDENTS/PLAINTIFF & 2ND DEFENDANT ---------------------------------------------------- 1. SANTHA, W/O. KARUMAM PARAMBIL VELAYUDHAN, KOZHUKULLY VILLAGE, DESOM, THRISSUR TALUK, THRISSUR DISTRICT. 2. SANKARAN, S/O. RAPPAL MARASSERY RAMAN, RAPPAL DESOM, PARAPPOOKKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ADV. SRI.P.VIJAYA BHANU FOR R2 SRI.TONY MATHEW FOR R2 SRI.M.C.SEN, SENIOR ADVOCATE FOR R1 SMT.SHAHANA KARTHIKEYAN SRI.M.P.SREEKRISHNAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.344 of 2004 ............................................ DATED THIS THE 3rd DAY OF NOVEMBER, 2011 JUDGMENT First defendant in O.S.1291 of 1997 on the file of Munsiff Court, Thrissur is the appellant. First respondent is the plaintiff and second respondent, the second defendant in the suit. First respondent instituted the suit to set aside Ext.B1 registered sale deed executed in favour of the appellant and for a permanent prohibitory injunction restraining the appellant and second respondent from trespassing into the plaint schedule property or creating any document in respect of the property or interfering with her possession and enjoyment of the property. Plaint schedule property is 19 cents in survey No.8/3 of Kozhukully Village of Thrissur Taluk. Plaint schedule property admittedly originally belonged to the first respondent. She executed Ext.B1 registered sale deed on 22.6.1996 in favour of the appellant. The Appendix prepared by the trial court shows that there are several mistakes. Ext.B1 is not the sale deed of 1985 as shown in the Appendix but is the sale deed executed by first respondent in RSA 344/2004 2 favour of the appellant. Ext.B1 shown in the Appendix is actually Ext.B5. Ext.B4 is the sale deed 2627/1997 executed by the appellant in favour of one Paul and not the sale deed No.2997/96 as shown. Exts.B5 and B6 are anterior title deeds. First respondent contended in the plaint that Ext.B1 was not executed with an intention to create a sale deed or to sell the plaint schedule property. It was contended that second respondent used to come to the plaint schedule property in connection with the functions being conducted in the prayer room (kottil) and had acquaintance with the first respondent. It was also contended that while so, he requested first respondent to give her title deed to the second respondent, to avail him a loan and he assured first respondent that he would return the document immediately. In June 1996, second respondent reached the house of the first respondent and told her that appellant had agreed to advance money to the second respondent on mortgaging some property. First respondent agreed to give her property as security for the amount to be advanced by the appellant to the second respondent. On 22.6.1996, second respondent along with his wife reached the house of the first respondent, took her to the RSA 344/2004 3 Sub Registrar's office , Kuttanelloor for registering the mortgage deed. Second respondent received Rs.75,000/- from the appellant. As requested, first respondent signed in the mortgage deed. Later, she asked the second respondent regarding repayment of the loan and he told her that some amount was paid and the balance will be repaid soon. Later, appellant told the first respondent that second respondent did not repay the loan and he directed first respondent to instruct second respondent to pay the amount immediately or otherwise she would lose her property. First respondent agreed to direct the second respondent to pay the amount immediately and requested appellant not to proceed with the property. Then appellant told her that he had done all necessary arrangements to get possession of the property. When first respondent requested the appellant to show the mortgage deed, he was not prepared to show it. On enquiry, first respondent came to know that Ext.B1 was executed not as a mortgage deed but as a sale deed. It was contended that the sale price shown in the document is Rs.17,500/- and the property would fetch Rs.4,00,000/- and first respondent never intended to sell the plaint schedule property RSA 344/2004 4 and appellant, along with second respondent cheated the first respondent, an illiterate lady by fraudulent means and got Ext.B1 executed and it is not valid and binding and appellant did not derive any right under the document. It was contended that on 16.6.1997, appellant along with others, attempted to trespass into the property and first respondent resisted and then the suit was instituted. Second respondent remained exparte. 2. Appellant resisted the suit contending that Ext.B1 was executed as a sale deed transferring the plaint schedule property in his favour and subsequent to the execution of the sale deed, he had remitted the tax and is in possession of the property and out of 19 cents, he sold 13 cents in favour of Paul under Ext.B4 sale deed dated 16.6.1997 for a consideration of Rs.15,000/-. The said Paul is in possession of the property. The remaining 6 cents on the western side is in the possession of the appellant. Appellant has no transaction with the second respondent. Ext.B1 sale deed is not vitiated and the property will not fetch Rs.4,00,000/- and first respondent is not an illiterate lady and she is not entitled to the decree sought for. 3. Learned Munsiff, based on the evidence of PWs 1 and 2, RSA 344/2004 5 DW1, Exts.A1, B1 to B6 and C1 granted a decree in favour of the first respondent declaring that Ext.B1 sale deed is not a valid document and cancelled it. A decree for permanent prohibitory injunction restraining appellant and second respondent from trespassing into the plaint schedule property was also granted. Learned Munsiff found that Ext.B1 was executed without knowing its contents and second respondent received the title deeds from first respondent to secure a loan and first respondent is in possession of the plaint schedule property. First respondent challenged the decree before District Court, Thrissur in A.S.30 of 2000. Learned Additional District Judge on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Second appeal was admitted formulating the following substantial questions of law. “1) Can the oral evidence of the plaintiff be sufficient to hold that the recitals in the document are wrong and inoperative ? Can it be said that the heavy burden on the plaintiff in this regard is discharged by her oral evidence ? 2) When the case of the plaintiff is that she RSA 344/2004 6 executed the document believing it as a mortgage deed in order to oblige the 2nd defendant, is not non-examination of the 2nd defendant fatal to the case of the plaintiff ? 5. Learned counsel appearing for appellant and first respondent were heard. 6. Learned counsel appearing for appellant pointed out that the existence of Ext.A1 document was not mentioned in the plaint and was produced at the time of recording the evidence and courts below should not have relied on Ext.A1, which was subsequently created in support of the plea of the first respondent. Learned counsel argued that the recitals in Ext.A1 falsifies the contentions raised in the plaint and this was not taken note of by the courts below. Learned counsel also argued that though the courts below found that plea of the appellant that he has no contact with the second respondent is not correct, based on the fact that son of the second respondent was an identifying witness to Ext.B1 sale deed, ignoring the fact that son of the second respondent was identifying the first respondent and not the appellant. Learned counsel argued that the evidence RSA 344/2004 7 was appreciated by the courts below, as if Ext.A1 is genuine and if Ext.A1 goes, the case cannot be accepted. Learned counsel also argued that if Ext.B1 was executed as a mortgage deed there was no necessity to hand over the anterior title deeds and the plaint does not give any explanation for the custody of the anterior title deeds of the plaint schedule property with the appellant and even at the time of evidence PW1 had not given any valid explanation for the custody of the anterior title deeds and in such circumstances, it could only be for the reason that under Ext.B1 sale deed the entire rights was transferred by the first respondent in favour of the appellant. Learned counsel argued that these aspects were not properly appreciated by the courts below and evidence of PW1 establishes that even at the time of her examination, she had no grievance against the second respondent, which will not be the case if the case of fraud alleged against the second respondent is true and non examination of second respondent is fatal. It is therefore argued that decree granted by the courts below is unsustainable. 7. Learned counsel appearing for the first respondent argued that first respondent is an illiterate lady and she RSA 344/2004 8 happened to execute Ext.B1 as a result of the fraud committed by the appellant along with first respondent on her. It was also argued that being an illiterate lady, first respondent was not aware of the contents of Ext.B1 sale deed, when it was executed and she was only helping the second respondent to avail a loan from the appellant without knowing that fraud is being committed on her by making her execute a sale deed transferring her right in the plaint schedule property. Learned counsel argued that when Ext.A1 was marked, its genuineness was not disputed and in such circumstances, for the reason that there was no plea with regard to Ext.A1 in the plaint, it cannot be found that Ext.A1 is not genuine. Learned counsel also argued that if Ext.A1 was concocted later, it would have been created in consonance with the case pleaded and not against the case pleaded and therefore genuineness of Ext.A1 is assured. Learned counsel further argued that as rightly found by the courts below, Ext.A1 establishes that first respondent executed Ext.B1 sale deed on the belief that she is executing a mortgage deed without knowing that it is a sale deed and therefore finding of the courts below is perfectly correct. Learned counsel also argued that plaint schedule RSA 344/2004 9 property lies adjacent to the property of the husband of the first respondent and there is no demarcating boundary between the two properties, which will not be the case if the plaint schedule property was not transferred under Ext.A1 sale deed. Learned counsel also argued that Ext.C1 report submitted by the Commissioner establishes that there is a prayer hall in the plaint schedule property where poojas are being performed, which strengthens the case of the first respondent that she continues to be in possession of the property, which will not be the case if Ext.A1 is a sale deed. Learned counsel also relied on the decision of this court in Chandran Nair V. Krishnan(1997(1) KLT 656) and argued that when Ext.B1 is a document executed by an illiterate lady, the principles of non-est-factum enunciated by this court in the said decision is to be applied and if so applied, it could only be found that Ext.A1 was not executed as a sale deed. Reliance was also placed on the decision of this court in Gangabai V. Chhabubai(AIR 1982 SC 20) and argued that Section 92 of the Indian Evidence Act does not prevent the first respondent from proving that Ext.A1 was not executed as a sale deed, as seen in the document. Relying on the decision of this RSA 344/2004 10 court in Prasanth V. Kallyani(2007(2) KLT 992) it was argued that while appreciating the pleading a pedantic approach cannot be taken and on a proper appreciation of the evidence, courts below rightly found that Ext.B7 was not executed as a sale deed and therefore first respondent is entitled to the decree and there is no reason to interfere with the decree. Learned counsel also argued that when no substantial question of law is formulated on Ext.A1, in exercise of the powers under Section 100 of Code of Civil Procedure this court cannot go into the question whether Ext.A1 is genuine or not. 8. Execution of Ext.B1 registered sale deed is admitted. According to the first respondent, it was not executed as a sale deed and she executed it as a mortgage deed. Ext.B1 shows that it is a sale deed and not a mortgage deed. True, in the nature of the contentions, first respondent is entitled to plead and prove that she executed Ext.B1 without an intention to execute a sale deed but as a mortgage deed. But burden is definitely on the first respondent to prove it. Courts below appreciated the evidence mainly relying on Ext.A1 produced by the first respondent at the belated stage of trial. Records of the trial court RSA 344/2004 11 show that the suit was included in the special list after recording that no further steps is to be taken, on 15.3.1999. On the request of first respondent, it was adjourned on that day. It was again included in the special list on 6.9.1999. It is at that time Ext.A1 was produced before the learned Munsiff on 4.9.1999 as per I.A.3216 of 1999. The affidavit filed in support of the application shows that the document alleged was not produced earlier, due to omission. The plaint shows that though it was specifically pleaded that second respondent came to the house of first respondent and requested her to give her property as security for the loan to be availed from the appellant, and promised that the amount will be repaid and the mortgage will be redeemed immediately and first respondent agreed for the same and on 22.6.1996, second respondent along with his wife came to her house and took her to Sub Registrar's office for executing the mortgage deed. There was no case that second respondent asked first respondent to hand over the anterior title deeds before execution of the document or the title deeds were handed over to the second respondent or second respondent had given anything in writing acknowledging the receipt of the title RSA 344/2004 12 deed and the circumstances under which it was handed over. If in fact any such document was executed by the second respondent and handed over to the first respondent, it would have definitely found a place in the plaint. The plaint is absolutely silent on this fact. If there existed any such document, it would have been produced along with the plaint. It is in such circumstances, the belated production of Ext.A1 is to be appreciated. Neither the trial court nor first appellate court considered the genuineness of Ext.A1. On the other hand, they presumed that it is genuine and appreciated the evidence in the light of the recitals in Ext.A1. It is also to be borne in mind that what was alleged in the plaint was that second respondent was in need of money and he disclosed to the first respondent that appellant had promised to pay Rs.75,000/- as loan, provided some property is given as security and hence first respondent agreed to give her property as security and executed Ext.B1 sale deed. What is stated in Ext.A1 seen executed on 18.6.1996, four days prior to the execution of Ext.B1 sale deed, is that it is a promise by the second respondent and his wife and children that they obtained the title deed of the plaint schedule property from RSA 344/2004 13 the first respondent for the purpose of obtaining the document given to one Muraleedharan, at the time of obtaining money. It was promised that the document will be returned within 15 days. There is no case either at the time of evidence or in the plaint that second respondent had mortgaged the property or handed over his title deed to Muraleedharan or availed a loan from Muraleedharan as stated in Ext.A1. Therefore, if the recitals in Ext.A1 is to be believed, the plaint allegations and the evidence of PW1 is to be disbelieved. Unfortunately, both the courts below presumed that Ext.A1 is a document executed by the second respondent in favour of the first respondent, in support of the plea raised in the plaint, when it is not so and contradicts the pleading in the plaint. On the evidence, it is absolutely clear that Ext.A1 was not genuine and was created later. Hence Ext.A1 should not have been relied on by the courts below. It is more so because, if second respondent had committed a fraud on the first respondent, as is the case set up by the first respondent, PW1 would not have disclosed at the time of cross examination that she has no grievance against the second respondent. It is quite clear that second respondent is in RSA 344/2004 14 good terms with the first respondent. Hence while appreciating the evidence, Ext.A1 is to be eschewed and based on Ext.A1 the plea of the first respondent cannot be accepted. When Ext.B1 show that it was executed as a sale deed, first respondent based on her evidence cannot establish that it is not a sale deed. Having admitted its execution and the fact that she had gone to the Sub Registry Office for its registration and got it registered, it cannot be believed that she executed it without knowing its contents. When it is a registered document, it has to be presumed in the absence of contra evidence that the Sub Registrar registered it after getting satisfied that first respondent executed it as a sale deed and also received the consideration. First respondent did not examine any of the attesting or identifying witnesses or the Sub Registrar to prove that she executed Ext.B1 without realising its contents. Fact that son of the second respondent was the identifying witness will not prove that Ext.B1 was got executed by the second respondent. His son identified only the first respondent and not the appellant. Hence on the evidence it cannot be found that appellant got executed Ext.B1 at the instance of second respondent or the appellant. RSA 344/2004 15 9. Though it was contended that Ext.B1 was not acted upon, Ext.B2 tax receipt show that appellant had paid the property tax after execution of Ext.B1. Evidence of PW1 also established that she did not pay the property tax after execution of Ext.B1 as she was aware that tax was being paid by the appellant. Hence on the evidence it cannot be said that Ext.B1 has not come into effect. 10. Ext.B3 encumbrance certificate and Exts.B5 and B6 anterior title deeds of the plaint schedule property were produced by the appellant. Evidently, it is to explain the custody of the anterior title deeds with the appellant, Ext.A1 was produced. There is no explanation in the plaint or at the time of evidence how anterior title deeds came to be with the appellant, if Ext.B1 was executed, not as a sale deed but as a mortgage deed as claimed by the appellant. If a mortgage deed is to be executed there was no necessity to hand over the anterior title deeds of the property mortgaged thereunder. The very fact that anterior title deeds were handed over to the appellant by the first respondent establish that the transaction created under Ext.B1 was not a mortgage as claimed by the first respondent. RSA 344/2004 16 When the entire evidence is appreciated in the proper perspective, it can only be found that Ext.B1 was not executed as document of security or the mortgage as claimed by the first respondent. Even if the case of the first respondent that there is no demarcating boundary between the property of the first respondent and the remaining property of her husband is true, that does not make Ext.A1, a mortgage deed. Though it was contended that Ext.B1 was not intended to be acted upon, the very case that Ext.B1 was executed on the promise that the mortgage will be released on the second respondent, discharging the liability shows that it was intended to be acted upon. When the entire evidence is so appreciated in the proper perspective, it can only be found that the declaration granted by the courts below that Ext.B1 is not a valid sale deed and therefore, it is liable to be cancelled is unsustainable. 11. Then the only question is with regard to the decree for permanent prohibitory injunction. It was argued that report of the Commissioner establish that there is a prayer hall where poojas were performed by the first respondent, which establishes that possession of the plaint schedule property is with the first RSA 344/2004 17 respondent and therefore, based on the possession a decree for injunction is to be granted. When Ext.B1 is found to be a valid sale deed executed by the first respondent, whereunder she divested her title and that title now vests with the appellant, question is whether the first respondent is entitled to a decree for injunction against the appellant who is the true owner of the property. When appellant is the owner of the plaint schedule property, based on possession also a decree for permanent prohibitory injunction cannot be granted against the true owner in favour of the respondent. In such circumstances, appeal is allowed. Decree granted in O.S.1291/1997 by Additional Munsiff, Thrissur as confirmed by District Judge, Thrissur in A.S.30/2000 is set aside. O.S.1291/1997 stands dismissed. Parties to bear their respective costs. M.SASIDHARAN NAMBIAR, JUDGE. lgk/uj