IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 RFA.No. 420 of 2003(E) ---------------------- OS.259/1993 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT/IST DEFENDANT ------------------------------------------- ABDUL SALAM, S/O. MOHAMMED NOOHU, AGED 44, KUMILIYIL VEEDU, VALIYAVEETTU MURI, PALLIPURAM VILLAGE. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.THOMAS ABRAHAM SRI.K.B.ARUNKUMAR RESPONDENTS/ PLAINTIFF & 2ND DEFENDANT ---------------------------------------- 1. ABDUL HAQ, S/O. MOHAMMED NOOHU, AGED 46, KUMILIYIL VEEDU, VALIYAVEETTU MURI, PALLIPURAM VILLAGE. 2. MOHAMMED NOOHU, S/O PAKIRUMOITHEEN, DO. DO. (DIED). ADV. SRI.G.S.REGHUNATH FOR R1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT This appeal was adjourned on 18/1/10 at the request of the learned counsel for the appellant. Again the appeal was posted on 10/2/10. There was no representation on that day and the appeal was again posted for disposal today. today also neither the counsel nor the appellant is present. Appeal stands dismissed for default. 11/2/10. Sd/- Harun-Ul-Rashid, Judge. R.F.A.NO.420/03 ORDER ON I.A.NOS.2511/03, 3616/05, 3143/05 & 4481/08 IN R.F.A.NO.420/2003 --------- DISMISSED 11/2/10. Sd/- Harun-Ul-Rashid,Judge. True Copy P.S. to Judge. HARUN-UL-RASHID,J. ------------------------------ R.F.A.NO.420 OF 2003, I.A.NOS.2438 OF 2003, 4400 OF 2004 & 3616 OF 2005 ------------------------------- DATED THIS THE 8TH DAY OF JULY, 2010 JUDGMENT The lst defendant in O.S.No.259/93 on the file of the Sub Court, Attingal is the appellant. The suit was filed for declaration, injunction and for setting aside a portion of the sale deed. The court below decreed the suit as prayed for. The parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 2. The plaintiff and defendants in the suit are close relatives. First defendant is the brother of the plaintiff and the 2nd defendant is their father. Plaint A schedule is the total extent in Ext.A1 sale deed, B schedule stands in the name of the plaintiff and C schedule in the name of the lst defendant. Plaint B and C schedules put together are A schedule. Plaintiff sued for declaration of title over the plaint C schedule property after -2- R.F.A.No.420/03 declaring that the covenants relating to C schedule in favour of the lst defendant are ab initio null and void and if found necessary, to set aside the same and for perpetual injunction. 3. The lst defendant in the written statement and in the counter claim contended that the plaintiff has no right or interest over any portion of the plaint A schedule property. He resisted the suit, denied the title of the plaintiff over B schedule property and claimed exclusive title over plaint A schedule property. In the said context, the plaintiff amended the plaint praying for declaration of title over plaint A schedule property, instead of C schedule property alone. 4. The short facts leading to the filing of the suit and the counter claim are as follows: The plaint schedule property originally belonged to one Gourikutty Amma. The total extent of plaint schedule property is 2.13 acres. Plaintiff was employed abroad. He came to know that Gourikutty Amma intended to sell her property. Plaintiff -3- R.F.A.No.420/03 instructed his father (2nd defendant) to make arrangements for purchase of the property in his name. The 2nd defendant informed the plaintiff that Gourikutty Amma is willing to sell her property for a consideration of Rs.1,90,000/- and that she agreed to execute the sale deed on or before 31/12/1992 on payment of sale consideration. It is the plaintiff's case that he sent two bearer cheques one for Rs.75,000/- on 30/6/1992 drawn in the name of his father and another for Rs.50,000/- drawn by one Shajahan for discharging his debt to the plaintiff. Again in August 1992 the plaintiff sent another cheque for Rs.15,000/- drawn in the name of his father together with a bearer cheque for Rs.8,000/- issued by one Aliyarkunju for discharging his debt to the plaintiff. It is also pleaded in the plaint that besides the aforesaid amounts sent for payment to Gourikutty Amma, he also sent Rs.70,000/- to the 2nd defendant in cash in November, 1992 through one Surendran, who is his friend. So, from 1992 June till 1992 November the plaintiff sent Rs.2,18,000/- to the 2nd defendant. It is stated that the -4- R.F.A.No.420/03 amount was sent for the purpose of payment of sale consideration and to meet the expenses in connection with the execution of the sale deed. 5. Ext.A1 is the sale deed dated 30/12/1992 executed by Gourikutty Amma. The plaintiff's case is that the 2nd defendant-father informed the plaintiff that the sale deed was executed and the property was purchased in the name of the plaintiff. Plaintiff came to his native place in March, 1993 from abroad. A residential building is also situated in the plaint schedule property. After March, 1993, the plaintiff attended the maintenance work of the residential house spending lot of money and he started residence along with his family and parents. It is said that he dug a well in the property, constructed a pump-house, installed pump-sets, put up barbed fence around the property and also effected many improvements believing that his father purchased the property in his name alone. 6. In September, 1993 the plaintiff wanted to effect -5- R.F.A.No.420/03 mutation and payment of tax. Therefore, the plaintiff requested his father to handover the original sale deed, so that he can approach the village officer for effecting mutation. But the 2nd defendant did not handedover the sale deed. It is the plaintiff's case that by the conduct of his father, a suspicion was created in his mind and therefore he made enquiry about the details of the sale deed executed. On enquiry the plaintiff came to know that his father caused to register the property in the names of plaintiff and lst defendant with separate schedules. He obtained certified copy of the document. The lst schedule having an extent of 1.06 acres stands in the name of the plaintiff and the 2nd schedule having an extent of 1.06 ½ acres with the residential building stands in the name of the 1st defendant. 7. The case of the plaintiff is that purchase of one half property in the name of the lst defendant is a fraudulent act of the defendants. According to the plaintiff, the lst defendant has no right in the property, since the entire sale consideration and -6- R.F.A.No.420/03 expenses were paid by the plaintiff alone and therefore the suit was filed for the aforesaid reliefs. As I said earlier, plaint A schedule is the total extent covered by Ext.A1 sale deed. Plaint B schedule is the property stands in the name of the plaintiff and plaint C schedule in the name of the lst defendant. It is alternatively prayed that if the court finds that the plaintiff cannot claim title to plaint C schedule property, he may be allowed recovery of money paid by the plaintiff to the 2nd defendant for purchase of the plaint C schedule property. 8. The 2nd defendant, who had entered into the transaction for and on behalf of the plaintiff, remained ex parte. The lst defendant alone contested the suit. He filed a detailed written statement and a counter claim. He denied the plaint averments and set up title over the plaint schedule property. He contended inter alia that it is false to say that the plaintiff engaged the 2nd defendant to purchase the plaint schedule property for and on behalf of the plaintiff. It is also contended that the 2nd -7- R.F.A.No.420/03 defendant has never entered into an agreement with the assignors of Ext.A1 for purchase of the properties for and on behalf of the plaintiff. According to the lst defendant, the property was purchased by him, after paying the entire sale consideration. It is also pleaded that he paid the advance amount to the assignor. The lst defendant denied the averments in the plaint that a cheque for Rs.75,000/- sent by the plaintiff on 30/6/1992 was for purchasing the property. According to him, all the amounts sent by the plaintiff are for meeting the expenses of the family. It is also contended that the cheque for Rs.50,000/- mentioned in the plaint was issued by the plaintiff for discharging the plaintiff's debt to him. It is pleaded that the plaintiff has never sent Rs.2,18,000/- to the 2nd defendant as claimed. According to him, without his consent and knowledge, the 2nd defendant-father included the name of the plaintiff in Ext.A1 sale deed. He also denied the averments in the plaint that the plaintiff has done maintenance work to the building, constructed pump house, installed pump sets, fencing etc. -8- R.F.A.No.420/03 It is pleaded that all the improvements in the property were made by the lst defendant with his own funds. He also denied the averments in the plaint that the sale deed obtained by the 2nd defendant is the result of collusion or fraud. In the counter claim the prayer is for a declaration of title and possession of the plaint A schedule property and for permanent prohibitory injunction restraining the plaintiff from trespassing into the plaint A schedule property. 9. The plaintiff filed a detailed replication denying the averments in the counter claim. The trial court framed necessary issues. The evidence consists of oral evidence of PW1, DWs.1 to 5, Exts.A1 to A21, B1 to B12, X1, X2, C1 and C2. 10. The total extent of property covered by Ext.A1 sale deed is 2.13 acres. Item No.1 of Ext.A1 shown as plaint B schedule property and item No.2 as C schedule property stand in the name of plaintiff and lst defendant respectively. Both these properties are shown as plaint A schedule. The plaintiff's case is -9- R.F.A.No.420/03 that he engaged his father (2nd defendant) to purchase plaint A schedule property, that he had sent sale consideration and expenses to him and that the 2nd defendant utilised the sale consideration for purchase of the property as per Ext.A1 sale deed. Later, the plaintiff came to know that contrary to the instructions given, the 2nd defendant purchased the property in the name of the lst defendant as well, and the purchase of the property in the name of the lst defendant is an act of the defendants by practicing fraud on the plaintiff and therefore, the plaintiff sued for the reliefs mentioned in the preceding paragraphs. The plaintiff, who was examined as PW1, testified before the court below the facts and circumstances leading to the execution of Ext.A1 sale deed. The plaintiff tendered evidence in terms of the plaint averments. 11. At the time of execution of Ext.A1 sale deed both plaintiff and lst defendant were abroad. In the plaint it is specifically averred that the plaintiff sent two cheques for Rs.75,000/- and Rs.50,000/- on 30/6/1992 to the 2nd defendant in -10- R.F.A.No.420/03 connection with the execution of Ext.A1 sale deed. The plaint averment shows that on 15/8/1992 the plaintiff had sent a cheque for Rs.15,000/- issued in the name of the 2nd defendant and another cheque of Rs.8,000/- issued by one Aliyar Kunju towards his liability to the plaintiff. It is specifically pleaded that in November, 1992 the plaintiff sent another cheque for Rs.70,000/- to the 2nd defendant through one Surendran. The total amount sent for the purpose of Ext.A1 transaction is Rs.2,18,000/-. In the written statement, the lst defendant admitted the aforesaid plaint allegations except the payment of Rs.70,000/-. According to the lst defendant, the payments mentioned in the plaint except Rs.70,000/- were made by the plaintiff for the expenses of the family and the cheque for Rs.50,000/- sent by the plaintiff was for discharging his liability to the lst defendant. PW1 testified before the court that all the payments made were towards Exts.A1 transaction. Out of the total amount spent, namely, Rs.2,18,000/-, Rs.1,48,000/- was sent to the 2nd defendant-father on 30/6/1992 and 15/8/1992. The -11- R.F.A.No.420/03 balance Rs.70,000/- was paid during November, 1992. The lst defendant contended that the amounts were made for the expenses of the family. There is no reason to believe that such a huge amount was sent to the father during 1992 for the expenses of the family. From the facts and circumstances it is seen that the parties are living not in a very affluent circumstances. The contention that the said amount was sent for family expenses is without substance. The plaintiff, who was examined as PW1, testified that these amounts were sent for Ext.A1 transaction. There is no contra evidence on the side of the defendants except the testimony of DW1, who is the power of attorney holder of the defendants. DW- 1 testified before the court below that he had no idea about what transpired between the plaintiff and his father or between the plaintiff and the defendants during 1992-1993. 12. The sale deed was executed on 30/12/1992. The plaintiff came back to Kerala in March, 1993. As PW-1 the plaintiff testified before the court below that he first went to the -12- R.F.A.No.420/03 Gulf country in the year 1978. His last visit to Kerala was in 1987. For a period of six years he remained in Gulf country without visiting his native place. Thus, the assertion made by PW-1 is not specifically denied by DW1 in evidence. The plaintiff returned to Kerala in 1993. On his return the plaintiff asked his father to hand over the title deed; but it was not handed over to him in spite of request. Original title deed was necessary for the purpose of completing the formalities in the village office. On enquiry the plaintiff came to know that the 2nd defendant-father fraudulently get the sale deed executed in the name of the lst defendant as well. According to the plaintiff, he was convinced that execution of sale deed in the name of the lst defendant is a fraudulent act done by his father. PW1 testified that the 2nd defendant-father has done the unauthorised act with the connivance of the lst defendant. The plaintiff sent Ext.A2 lawyer notice informing the defendants that legal action will be initiated against them. The plaintiff, at the time of his visit to Kerala in March, 1993, believed that his father -13- R.F.A.No.420/03 executed the sale deed in the name of the plaintiff alone. In that belief he made improvements in the plaint schedule property. He attended repairs of the building, constructed pump house, installed pump sets etc. in the property. The residential building situated in the property was fairly old. Therefore, major repair works were done on the building. Plaint C schedule property in the name of the lst defendant is the southern one half and the B schedule property in the name of the plaintiff is the northern one half. The property was divided and allotted in such a way that the residential building is located in plaint C schedule property, which is in the name of the lst defendant. If the plaintiff has any idea regarding the fact that plaint C schedule stands in the name of the lst defendant, normally the plaintiff will not spent any amount for the improvement of plaint C schedule property. The improvement was done after March, 1993 on his return from Gulf. If he was any information regarding the execution of a part of the property in the name of the lst defendant, the plaintiff would not have effected -14- R.F.A.No.420/03 any improvements in the plaint C schedule property. The Commissioner in Ext.C1 reported the details of repairs done to the residential building and construction of well, pump house, pump sets etc. in the plaint C schedule property. 13. The evidence tendered by the plaintiff regarding the circumstances leading to the execution of Ext.A1 sale deed, details of the money sent to the 2nd defendant-father for the purpose of purchase of the property in his name and other relevant circumstances were not controverted by the lst defendant. The lst defendant did not mount the box either to deny the positive assertions of the plaintiff or to give evidence in terms of his written statement and counter claim. For and on behalf of him DW1, his brother-in-law, was examined. He is the power of attorney holder of the lst defendant. DW1, the power of attorney holder of the lst defendant, admitted that he has only hear-say knowledge regarding the matters prior to 1993. Apart from the hear-say knowledge, there is no satisfactory evidence adduced to prove the lst -15- R.F.A.No.420/03 defendant's case. Apart from the bald averments in the written statement and counter claim the lst defendant failed to adduce evidence to prove the liability of the plaintiff or the nature of the transaction as asserted by him in the written statement and counter claim. A person, who has no idea or knowledge about the real transaction taken place during 1992, has been examined on behalf of the lst defendant. Considering the evidence adduced by PW1 regarding the payment made by him, it is also proved that a cheque for Rs.50,000/- issued by Shajahan to the plaintiff encashed by the lst defendant is also towards the part-payment of Ext.A1 sale consideration. The contention that the cheque issued to the lst defendant was for discharging the plaintiff's liability to him is not acceptable for want of proof. The oral and documentary evidence tendered by the plaintiff in support of the plaint averments stand proved. 14. The written statement does not contain sufficient pleadings regarding Ext.A1 transaction and does not contain the -16- R.F.A.No.420/03 details of the amounts paid by the lst defendant towards sale consideration. It is also not pleaded as to who paid the amount, on what dates, through whom the payments were made etc. It has come out in evidence that both the plaintiff and the lst defendant were not in Kerala at the time of execution of Ext.A1. In the written statement it is pleaded that there is an agreement for sale. On what date the agreement for sale was executed, the details regarding the consideration, the amount paid as advance etc. are not stated in the written statement. DW1 admitted that he has only hear-say knowledge about what transpired in between the plaintiff and the defendants. It is the settled principles of law that the courts cannot examine the questions not supported by pleadings, even though some evidence was adduced. The learned counsel for the plaintiff/lst respondent brought to the notice of this Court the specific attention to paragraph 9 of the decision reported in Rajagopal (dead) by L.Rs. v. Kishan Gopal and another (AIR 2003 SC 4319) in support of the above proposition of law. -17- R.F.A.No.420/03 15. The courts below after weighing evidence adduced by both sides held that the plaintiff had paid various amounts mentioned in the plaint to the 2nd defendant and that the said amounts were sent to him for purchasing the plaint schedule property in his name. The contention of the lst defendant that the amounts were sent by the plaintiff to the 2nd defendant only for the expenses of the family was not accepted by the trial court. The trial court also observed that in normal course for the purpose of a family expenses such huge amount will not be sent to the father. The lst defendant contended that the entire amount for purchasing Ext.A1 property was paid by him and nothing was contributed by the plaintiff. Though it is stated in the written statement that he paid the advance amount to the assignor, it is not disclosed or stated about the actual amount paid by him as advance. It is not disclosed in the written statement or in evidence as to how much amount he has paid to the 2nd defendant for purchasing the property. In evidence DW1 deposed that the value of the property -18- R.F.A.No.420/03 is Rs.5,95,000/- and that he has paid Rs.1,50,000/- as advance. If Rs.1,50,000/- was paid as advance and if the value of the property was Rs.5,95,000/-, there is no reason why these facts were not stated in the written statement. Therefore, the details as stated above about the transaction by DW1 cannot be accepted. The trial court also noted these facts and circumstances and held that the lst defendant has not paid any amount for purchasing the property. The evaluation of the evidence adduced by both sides leads to the conclusion that the lst defendant did not contribute money towards Ext.A1 transaction. The lst defendant also contended that Rs.1.5 lakhs was paid by him by two cheques to the assignor. He relied on the entries in Ext.X1 ledger extract. It is seen in Ext.X1 that two cheques for Rs.75,000/- each issued in the name of Kunhiraman Nair have been encashed from the account of the lst defendant on 10/7/1992. In the written statement the lst defendant has no case that he paid Rs.1.5 lakhs to the assignor by way of two cheques for Rs.75,000/- each. -19- R.F.A.No.420/03 16. At the appellate stage, the counsel for the appellant produced a photocopy of the agreement for sale dated 3/7/1992. In the alleged agreement produced it is recited that Rs.1.5 lakhs was paid as advance and the total consideration for sale of the property is Rs.5.95 lakhs. The lst defendant has no case in the written statement that the agreement for sale was executed on 3/7/1992. The written statement also does not contain any pleading to show that the price of the property is not Rs.1,90,000/- as pleaded by the plaintiff; but it is 5.95 lakhs. If the date of agreement and payment of advance are on 3/7/1992 as stated in the photocopy of the agreement produced before the Appellate Court, the records does not disclose for what purpose 1.5 lakhs was paid as shown in Ext.X1 ledger. Therefore, I am unable to believe that the alleged payment of Rs.1.5 lakhs by way of two cheques to one Kunhiraman Nair as shown in Ext.X1 is towards Ext.A1 transaction. The date of Ext.X1 is very important. The encashment shown in Ext.X1 is 10/7/1990. As I said earlier, there was no -20- R.F.A.No.420/03 occasion to make payment to the assignee Kunhiraman Nair on 10/7/1992. Nobody pleaded 10/7/19092 as the date of execution of agreement for sale. Even according to the DW1, the date of agreement for sale is 3/7/1992. The recitals in the photocopy of the agreement show that Rs.1.5 lakhs was received on that day. The contention raised by the lst defendant is contrary and mutually conflicting to the pleadings in the case. Therefore, his contention based on Ext.X1 cannot be accepted. Moreover, it is very important to note that the lst defendant has not chosen to examine the assignor Kunhiraman Nair to prove the alleged payment of advance amount as contended during trial. In the absence of the pleadings and evidence, the claim of the lst defendant regarding the payment stands rejected. 17. Admittedly, the lst defendant was employed in gulf Country during the period of Ext.A1 transaction. If he has made any payment, as rightly observed by the trial court, the entire sale consideration have been paid by him by way of cheque or drafts or -21- R.F.A.No.420/03 by cash sent through somebody, the written statement and the evidence of DW1 are silent on all these aspects. Absolutely, there is no evidence to show that the lst defendant has paid anything towards Ext.A1 transaction. The trial court also rightly discussed the circumstances which caused suspicion of the claim of the lst defendant on the ground of inclusion of the plaintiff's name in Ext.A1. If his case is true, it is not known for what purpose one half of the property was purchased in the name of the plaintiff. Exts.B1 to B12 vouchers and bills were produced by the lst defendant in order to show that he had made some improvements in the plaint schedule property. The trial court did not accept the said contention finding that DW1 admitted that he did not know the genuineness of the vouchers and bills produced by him. The trial