IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 SA.No. 425 of 2000(A) --------------------- AS.31/1994 of ADDL.SUB COURT,KOTTAYAM OS.695/1990 of PRL.MUNSIFF COURT, KOTTAYAM .................... APPELLANT/RESPONDENT/PLAINTIFF: ----------------------------------------- MOHANAN ACHARI, S/O.BALAKRISHNAN ACHARI, CARPENTER, AGED 48, IDATHOTTI MULLASSERIL HOUSE, MANGANAM, KOTTAYAM. BY ADV. MR.M.NARENDRA KUMAR RESPONDENTS/APPELLANTS/DEFENDANTS: ------------------------------------------------ 1. T.K.THAMPI, S/O.KRISHNAN, AGED 58, MALAYILTHAZHA HOUSE, NO.110, WARD NO.XV, VIJAYAPURAM PANCHAYATH. 2. K.K.PONNAMMA, W/O.T.K.THAMPI, O -DO- ADV. MR.MATHEW JOHN (K) FOR R1 & R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ S.A.No.425 Of 2000 ---------------------- Dated this the 9th day of July, 2010. J U D G M E N T The plaintiff in O.S.No.695 of 1990 on the file of the Principal Munsiff Court, Kottayam is the appellant. Suit was filed for permanent injunction restraining the defendants from trespassing into the plaint schedule property and from committing any acts of waste in the property. Plaintiff claimed title and possession by virtue of Ext.A1 sale deed of the year 1973. According to him, eversince the purchase he has been in possession and enjoyment of the property as absolute owner. Parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 2. The second defendant is the sister of the plaintiff and first defendant is his brother-in-law. The defendants contended that they have availed a loan from the plaintiff to purchase the plaint schedule property and towards the security of the said loan the sale deed was executed in his favour as requested by the plaintiff. It is further contended that the loan amount of Rs.515/- S.A.No.425 Of 2000 ::2:: was repaid to the plaintiff and after repayment the property exclusively belongs to the defendantS. They denied the claim of the plaintiff. Defendants also contended that the plaintiff agreed to re-convey the property on repayment of the loan amount. Ext.A1 is the sale deed executed by the vendor in favour of the plaintiff. The plaintiff as PW1 tendered evidence in terms of the plaint. PW2, a neighbour of the plaintiff was also examined in support of his case of possession. 3. The recitals in Ext.A1 sale deed shows that the property was conveyed for consideration. Ext.A1 also shows that possession was handed over to the transferee on the date of transaction. It also contains usual terms of title and quite enjoyment. The defendants contended that the sale deed was executed by the vendor in the name of the plaintiff on a specific understanding and agreement that the plaintiff will execute a re- conveyance deed on repayment of the loan amount. Even assuming that the defendants case is true that Ext.A1 is not a sale deed that it is only intended as security, in view of the proviso to Section 92 of the Indian Evidence Act, it is clear that the burden is on the defendant to establish that fact. To S.A.No.425 Of 2000 ::3:: establish title, the defendants shall prove the transaction between the plaintiff and defendants. The transaction alleged is that the plaintiff agreed to re-convey the property on return of sale consideration. First, the defendants have to prove that there was an agreement between the parties to show that the sale deed is not intended to benefit the plaintiff but the defendants and that the plaintiff shall be bound to re-convey the property on repayment of the consideration. If the case put forward by the defendants is true, the remedy open to them is to file a suit for specific performance of the agreement for sale. On a reading of the written statement it is clear that the plaintiff has set up an agreement to re-convey the property on his re-paying the sale consideration. Learned counsel for the plaintiff cited the decision reported in Moosa v. Moideen (2001(1) KLT 183). This Court in a similar case considered the very same situation in which it was held that considering the plea raised by the party, the party had to sue for specific performance of the agreement to re-convey. If the party has a case that no time for execution of the re- conveyance was fixed in the agreement, he could have pleaded of demand and refused to bring the suit within time. This Court S.A.No.425 Of 2000 ::4:: further held that in such a situation the party is bound to sue for the relief of specific performance. In the absence of such a prayer for specific performance, the suit as framed is not maintainable. The learned counsel submitted that Ext.A1 sale deed is of the year 1973, till this date, the defendants have not chosen to file any suit for specific performance nor they have adduced any evidence to prove that they have repaid the sale consideration as pleaded in the written statement. The suit is for injunction simplicitor. Strictly speaking the above said legal questions does not arise for consideration in a suit for declaration of title. In a suit for injunction while considering the question of possession the rights of the parties are firstly to be examined and such rights have bearing on the merits of the case. The definite case of the plaintiff is that he is in possession and enjoyment of the property right from the date of sale deed; that the defendants are in possession and occupation of puramboke land lying on the north-east of the plaint schedule property and that they are residing in the small building erected in the puramboke land. S.A.No.425 Of 2000 ::5:: 4. The defendants contended that despite registration of the sale deed the possession of the property has not been transferred to the plaintiff and they are residing in the building situated in the plaint schedule property. They have produced Ext.X1 series proceedings before Assistant Executive Engineer relating to the sanction of electric supply to the defendants' residence. The file contains a complaint preferred by the plaintiff obstructing the supply of electricity. The complaint is marked as Ext.X1(a). The complainant advanced the claim over three cents of land and building therein. The trial court held that the complaint preferred by the plaintiff, namely, Ext.X1(a) will in no way affect the plaintiff's right and possession and that in fact Ext.X1(a) supports the possession of the plaintiff over the disputed property. The trial court also relied on Ext.A1 title deed, tax receipts together with Ext.X1(a) and held that the plaintiff has proved his possession over the property. The trial court discussed Ext.X1 proceedings and X1(a) complaint. 5. The lower appellate court held that Ext.X1(a) complaint well establish the case of the appellants that they are in possession of the disputed property. The lower appellate court S.A.No.425 Of 2000 ::6:: relied on Exts.X1 and X1(a) proceedings in order to find that the plaintiff is not in possession of the property. The trial court, quite contrary to the view expressed by the appellate court as well relied on Exts.X1 and X1(a) to find that the plaintiff is in possession of the property. The plaintiff has a case that Ext.X1 (a) complaint is a forged document. 6. The case of the plaintiff is that the defendants are residing in the puramboke land lying on the north east of the plaint schedule property and that the extent of puramboke land is 1½ cents. The plaintiff also pleaded that the property in the possession of the defendants and the plaint schedule property are separated by well defined boundary. In the light of the contentions of the respective parties the location of the residential house of the defendants is relevant for consideration. The plaintiff is at liberty to take out a commission in support of his case that the defendants are residing in the puramboke land lying on the north-eastern side of the plaint schedule property. The dispute between the parties can be resolved by deputing a commissioner to report the location of the residential building. In such a situation, I am constrained to take the view that the S.A.No.425 Of 2000 ::7:: matter requires reconsideration. In the result, appeal is partly allowed. The judgment and decree passed by the courts below are set aside. There will be a direction to the trial court to dispose of the suit afresh, within a period of six months from the date of receipt of a copy of this judgment. Parties shall appear before the court below on 4.8.2010. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-