IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 RSA.No. 677 of 2009() --------------------- AS.130/2004 of ADDL.SUB COURT, IRINJALAKUDA OS.144/2000 of MUNSIFF COURT, CHALAKUDY .................... APPELLANTS/APPELLANTS/DEFENDANTS: ------------------------------ 1. KALLIKKUTTY, AGED 70 D/O. OOREKKATT NARAYANAN 2. CHANDRIKA, AGED 38 D/O.OOREKKATT NARAYANAN 3. SUDHA,. AGED 33 D/O.OOREKKATT NARAYANAN 4. SHEELA, AGED 30 D/O. OOREKKATT NARAYANAN BY ADV. SRI.G.UNNIKRISHNON SRI.K.SANEESH KUMAR RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------- SHAJU,NS/O.MENOTH CHERIYAKUTTY MOTHIRAKKANNI DESOM, PARIYARAM DESOM MUKUNDAPURAM TALUK. ADV. SRI.K.G.BALASUBRAMANIAN FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.677 of 2009 --------------------------------------- Dated this 07th day of December, 2009 JUDGMENT Respondent appears through counsel. 2. The second appeal arises from judgment and decree of learned Additional Sub Judge, Irinjalakkuda in A.S.No.130 of 2004 confirming judgment and decree of learned Munsiff, Chalakkudy in O.S.No.144 of 2000. 3. It is not disputed that 44 cents belonged to the appellants and deceased defendant No.1, their predecessor in interest while the suit property, another 8¼ cents belonged to the deceased defendant No.1 absolutely. While so, there was Ext.A8, agreement for sale between deceased defendant No.1 and the respondent for sale of the said 44 cents to the respondent for consideration at the rate of Rs.1500/- per cent. Deceased defendant No.1 received Rs.40,000/- from the respondent by way of advance. Deceased defendant No.1 filed O.S.No.917 of 1994 against the respondent seeking decree for prohibitory injunction against trespassing into the said 44 cents. Respondent filed O.S.No.253 of 1995 for specific performance of Ext.A8, agreement for sale in respect of the said 44 cents against appellants and deceased defendant No.1. Appellants and deceased defendant No.1 contested the suit. While so there was a settlement between the parties as per which both suits were disposed of on 08- R.S.A.No.677 of 2009 2 06-2000. As per the compromise decree deceased defendant No.1 was to assign his half share in the said 44 cents (i.e, 22 cents) to the respondent. Later deceased defendant No.1 executed Ext.A2, sale deed in favour of the respondent in respect of the said 22 cents and the suit property – 8¼ cents which absolutely belonged to him. According to the respondent, he got possession of the said properties pursuant to that sale. Alleging that appellants and deceased defendant No.1 attempted to destroy the boundary fence of the suit property, respondent filed O.S.No.144 of 2000 for a decree for prohibitory injunction. That suit was resisted by the appellants and deceased defendant No.1 contending that sale as per Ext.A2 is only in respect of the 22 cents and that respondent fraudulently included in 8¼ cents in the said sale deed capitalizing the incapacity of deceased defendant No.1 who was a drunkard. They claimed that they are in possession of the said 8¼ cents. Deceased defendant No.1 also laid a counter claim in respect of the said 8¼ cents seeking cancellation of Ext.A2, sale deed to the extent it concerned the said 8¼ cents. The counter claim was resisted by respondent contending that deceased defendant No.1, for valid consideration sold the said 8¼ cents to him and denying the allegation of fraud and misrepresentation. Trial court found in favour of the case pleaded by the respondent, granted decree in his favour and dismissed the counter claim. Appellate court R.S.A.No.677 of 2009 3 confirmed the finding as well as the judgment and decree. Hence the second appeal. Substantial questions of law raised in the memorandum of appeal are whether, courts below are justified in granting injunction in the absence of possession of the disputed properties to the respondent and whether there was miscarriage of justice in the absence of an issue regard to title claimed by the appellants over the suit property. It is contended by learned counsel that there is no evidence to show that respondent is in possession of the suit property - 8¼ cents and hence the trial court as well as appellate court went wrong in granting relief to the respondent. It is also submitted that on the evidence on record counter claim ought to have been allowed. Lastly it is submitted that appellants may be permitted to file fresh suit on title to set aside Ext.A2 to the extent it concerned the 8 ¼ cents. Counsel for respondent would contend that no substantial question of law is involved since the findings entered by the courts below rest on proper appreciation of evidence. 5. It is not in dispute that Ext.A2 is executed by deceased defendant No.1. The contention of deceased defendant No.1 as well as appellants is that it was intended to be only in respect of the 22 cents agreed to be sold by deceased defendant No.1 as per the compromise decree dated 08-06-2000 but, fraudulently and misrepresenting facts to the deceased defendant No.1, respondent managed to incorporate R.S.A.No.677 of 2009 4 the 8¼ cents also in Ext.A2. Deceased defendant No.1 has given evidence as DW1 in that way. Apart from that, he did not adduce any other evidence to show that Ext.A2 to the extent it concerned the disputed property is invalid for any reason whatsoever. On the other hand, respondent has given evidence as PW1 and stated about the circumstances which lead to the execution of Ext.A2 covering the 8¼ cents also though the compromise decree concerned only the 22 cents. PW2 is a witness in Ext.A2, sale deed. He has given evidence about due execution of the sale deed. PW3 is a neighbour. He was examined to prove possession of respondent over the suit property. Exts.C1 to C3 are the report and sketch prepared by the Advocate Commissioner. The Commissioner has reported that he found a new fence made of arecanut palm around the suit property. Both sides have produced receipts for payment of revenue in favour of the suit property. 6. When deceased defendant No.1 was in the box (DW1) he stated in cross examination that Ext.A8, agreement for sale was in respect of 44 cents (of which he had only half share) and that he had taken Rs.40000/- as advance from the respondent agreeing to sell the 44 cents. He also admitted that the 22 cents he assigned to respondent as per Ext.A2 was not sufficient to compensate the said sum of Rs.40000/- he had received from the respondent. It is not R.S.A.No.677 of 2009 5 disputed and, Ext.A8 also shows that the consideration fixed for the 44 cents was at the rate of Rs.1500/- per cent. Thus, there is evidence to show that the sale of 22 cents in favour of respondent was not sufficient to compensate the sum of Rs.40000/- deceased defendant No.1 had admittedly taken from the respondent as advance. According to the respondent, it is in the above circumstance and to compensate the entire amount deceased defendant No.1 had taken as advance that the latter assigned the 8¼ cents also to him. 7. Ext.A2 is a registered sale deed. Though, registration by itself is not sufficient to prove the execution of the document, it is the settled position of law that when registration is done in accordance with provision of the Registration Act after complying with formalities referred to therein, it raises a presumption regarding genuineness of the document leaving it to the person challenging it to prove that it is invalid for any reason whatsoever. In challenge of Ext.A2 to the extent it concerned the suit property what is available is only the interested version of deceased defendant No.1 as DW1 which, the courts below were satisfied is not sufficient either to rebut the presumption arising from registration of Ext.A2 or reject the evidence given by PWs.1 and 2 regarding due execution and registration. So far as possession of the suit property is concerned, Ext.A2 shows that possession was conveyed to the respondent. Exts.C1 and C2 also support the evidence of PWs.1 R.S.A.No.677 of 2009 6 and 3 regarding possession. As such courts below are justified in holding in favour of the respondent regarding possession of the property and due execution of Ext.A2. 8. The one contention that learned counsel for appellants raised is that no specific issue regarding title of deceased defendant No.1 over the disputed property was framed by the learned Munsiff. But I find that issue No.2 related to the entitlement of deceased defendant No.1 to get the sale deed set aside which covers the dispute regarding title raised by deceased defendant No.1. Moreover, parties have joined issued on the disputed question and have adduced evidence. I do not find any infirmity in the findings of the courts below nor do I find any substantial question of law involved in the matter. 9. The request to permit appellants to file a fresh suit for declaration of title cannot be entertained since deceased defendant No.1 already made a counter claim to set aside Ext.A2 in respect of the disputed property and that has been found against. Hence the question granting another opportunity to agitate the very same issue does not arise. The second appeal fails. It is dismissed in limine. THOMAS P JOSEPH, JUDGE R.S.A.No.677 of 2009 7 Sbna/