IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 RSA.NO. 4 OF 2010() ----------------------------- AS.23/2002 OF SUB COURT,ATTINGAL OS.17/1998 OF MUNSIFF COURT,ATTINGAL .................... APPELLANTS - RESPONDENTS 2 AND 3 – DEFENDANTS 2 AND 3: ---------------------------------------------------------- 1. ABDUL HAQUE, S/O. MOHAMMED ABDULLA, AGED 45 YEARS, FROM KUZHIVILAKOM THERUVIL VEEDU, PERUMATHARA DESOM, SARKARA VILLAGE NOW RESIDING AT WORKING IN ALAIN, U.A.E, POST BOX NO. 16021. 2. NASSAR, S/O. MOHAMMED ABDULLA, FROM KUZHIVILAKOM THERUVIL VEEDU, PERUMATHARA DESOM, SARKARA VILLAGE (THE FIRST APPELLANT IS REPRESENTED BY IS POWER OF ATTORNEY HOLDER, THE 2ND RESPONDENT) BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI. M.AJAY RESPONDENT(S): RESPONDENTS 1 AND 4 AND APPELLANT/DEFENDANTS 1 & 4 & PLAINTIFF: ------------------------------------------------------------------- 1. ABDUL HAJI,S/O. MOHAMMED ABDULLA, RESIDING AT KUZHIVILAKOM THERUVIL VEEDU, REPRESENTED BY POWER OF ATTORNEY HOLDER MOHAMMED RAFI, S/O. MOHAMMED KUNJU, RESIDING A.M.R. MANZIL, KANIYAPURAM, PALLIPURAM VILLAGE 2. MOHAMMED ABDULLA, AGED 75 YEARS, RESIDING AT HILL PALACE, CHITTATUMUKKU, KADINAKULAM VILLAGE 3. SEMINA, D/O. MOHAMMED ABDULLA, RESIDING AT KUZHIVILAKOM THERUVIL VEEDU, PERUMATHARA DESOM, SARKARA VILLAGE NOW RESIDING AT AGATHIL VEEDU, MADAMVILA DESOM, AZHOOR VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.4 OF 2010 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of January, 2010 J U D G M E N T --------------------- Second Appeal at the instance of defendant Nos.2 and 3 arises from judgment and decree of learned Sub Judge, Attingal in A.S.No.23 of 2002 reversing judgment and decree of learned Munsiff, Attingal in O.S. No.17 of 1998. Parties are referred to as plaintiff and defendants as in the trial court. 2. Suit is in respect of 7½ cents over which plaintiff claimed title and possession as per sale deed No.2693/1984. There is a two storied building in the said property occupied by the plaintiff and family. According to him in the year 1985 when he was hard pressed for money he borrowed certain amount from defendant No.4, his sister and executed a document styled as a sale deed (document No.322 of 1985 dated 5.2.1985 – Ext.A4 is its copy) in respect of 5 cents out of the said 7½ cents. At the time of execution of the sale deed it was agreed between them that the property will be re-conveyed on payment of the amount. Notwithstanding the sale deed, plaintiff continued to be in R.S.A. NO.4 of 2010 -: 2 :- possession and enjoyment of the entire suit property. He went abroad in connection with job. He has been sending money to defendant No.1, his father to discharge the liability of defendant No.4. Plaintiff was under the impression that it was so done by defendant No.1. In 1988 defendant No.1 informed him that liability has been discharged and that sale deed has been executed as agreed. According to the plaintiff he was under the impression that sale deed was executed in his name. But in the year 1997 defendant No.1 demanded partition of the suit property. On enquiry plaintiff learnt that the document was executed by defendant No.4 as if conveying one cent to the plaintiff and two cents each to defendant Nos.2 and 3 as per sale deed No.516 of 1988 (Ext.A5 is its copy). Defendant No.1 had no right to execute any sale deed in favour of defendant Nos.2 and 3. According to the plaintiff he is the title holder in possession of the entire suit property and accordingly prayed for a declaration and injunction and to set aside assignment deed No.516 of 1988. Defendant No.1 filed written statement contending that there was an outright sale of 5 cents in favour of defendant No.4 as per Ext.A4, assignment deed, possession of the 5 cents was given to defendant No.4 who became the absolute owner and possession and she in turn executed Ext.A5, assignment deed No.516 of 1988 as per which one cent was assigned to the plaintiff himself and the remaining 4 cents were R.S.A. NO.4 of 2010 -: 3 :- assigned to defendant Nos.2 and 3 equally. Defendant No.1 denied that there was any such money transaction between the plaintiff and defendant No.4 and that money was sent to him for payment to defendant No.4. Other defendants adopted the contentions of defendant No.1. In the trial court Advocate Commissioner inspected the properties and submitted Exts.C1 and C1(a), report and sketch. Trial court was of the view that in the light of the recitals in sale deed No.322 of 1985 (Ext.A4) plaintiff is precluded from contending that there was no sale but there was only a money transaction with an agreement to re-convey the property. Trial court resorted to Section 92 of the Indian Evidence Act (for short, “the Act”) to hold so. Suit was dismissed. Plaintiff took up the matter in appeal. First appellate court held that Sec.92 of the Act is no bar to the plaintiff setting up a collateral agreement for re-conveyance of property and contending that there was in fact no sale of property to defendant No.4 as per Ext.A4. First Appellate court also held from the circumstances that case of plaintiff is proved and accordingly granted a decree as prayed for. That is under challenge in this Second Appeal. 3. Substantial questions of law framed for a decision are whether the first appellate court has misapplied Sec.92 of the Act in view of the facts admitted in Ext.A4, whether case of plaintiff that Ext.A4 was not intended to be acted upon and that the sale deed R.S.A. NO.4 of 2010 -: 4 :- was a sham document could be raised in view of the said provision and whether on the evidence on record first appellate court was justified in deciding the suit in favour of the plaintiff. Learned counsel for defendant Nos.2 and 3 would contend that findings entered by the first appellate court are erroneous on law and on facts. 4. Section 92 of the Act precludes a party from adducing oral evidence as against the terms of the contract, grant or other disposition reduced into the form of a document. In this case it is not as if plaintiff is adducing oral evidence as against the terms of Ext.A4. Recitals in Ext.A4 as to transfer of title or possession is not a term of the contract and hence plaintiff is not precluded from adducing oral evidence against that. It is open to the plaintiff to adduce evidence regarding existence of a collateral agreement between himself and defendant No.4 as per which the latter was to re-convey the property to the former on payment of the amount allegedly due to the latter. It is also open to the plaintiff to show that Ext.A4 was not intended to take effect as a sale deed, nor has it taken effect and instead it was only a security for the amount borrowed by him from defendant No.4. Trial court misread the provisions of Sec.92 of the Act while the first appellate court has correctly answered the point and held that contention raised by the plaintiff is not hit by Sec.92 of the Act. R.S.A. NO.4 of 2010 -: 5 :- 5. Then the next question is whether case of plaintiff regarding the circumstances in which Ext.A4, sale deed was executed is proved? It is pointed out by learned counsel that plaintiff himself has not gone into the witness box and instead his Power of Attorney who has no direct information about the transaction has given evidence. Evidence required to prove the circumstances in which the sale deed was executed need not be direct. Circumstances can be brought in to show that document was not intended to take effect and in fact was executed only as a security. P.W.1, the Power of Attorney holder and P.W.2 have given evidence on behalf of the plaintiff. It is not disputed that plaintiff and defendant No.4 are direct brother and sister and defendant No.1 is their father. It is pertinent to refer to the circumstances under which Ext.A4 was executed. It is not disputed that immediately after execution of Ext.A4 plaintiff went abroad and has been working there. Exhibit A4 states that of the 7½ cents (described in the plaint schedule) what is assigned to defendant No.4 is only 5 cents excluding 2½ cents towards the eastern portion and the building situated thereon. In other words what is purported to be assigned to defendant No.4 as per Ext.A4 is only 5 cents excluding 2½ cents and the two storied building. But Exts.C1 and C1(a) which are not shown to be incorrect show that the said building is situated almost towards the middle of the entire 7½ cents . The building is R.S.A. NO.4 of 2010 -: 6 :- not confined to the 2½ cents allegedly retained by the plaintiff as per Ext.A4 but is towards the middle portion of the entire 7½ cents. In the light of Ext.C1(a), the sketch there is absolutely no possibility of carving out 2½ cents towards east with the building situated therein. In the eastern portion of the 7½ cents what is available is only an old foundation. The pump set and septic tank of the house are situated towards the extreme west of the entire 7½ cents. There is no case for defendant No.4 that any portion of the building was assigned to her as per Ext.A4. A reading of Ext.C1, report and perusal of Ext.C1(a), sketch show that building is situated towards the middle portion of the entire 7½ cents and access to the building is from the eastern side of the 7½ cents. It is also pertinent to note that while executing Ext.A4 no provision is made for access through the 2½ cents described in Ext.A4 as situated on the eastern side to the remaining 5 cents allegedly sold to defendant No.4 as per Ext.A4. Exhibits C1 and C1(a) cut at the root of the case of defendants that the 5 cents excluding 2½ cents and building have been assigned and possession was transferred to defendant No.4. Commissioner has reported that the entire 7½ cents is situated within well defined boundary wall on all sides and that it is lying contiguous. Further fact reported by the Commissioner is that family of plaintiff is residing in the building which I stated is situated in the middle of the entire 7½ cents. There is no case for any of the R.S.A. NO.4 of 2010 -: 7 :- defendants that after Ext.A4 there was any trespass by the plaintiff or family into the 5 cents or the building situated therein. The sale purported to be made as per Ext.A5 is also equally strange. As per Ext.A5, one cent towards east of the 5 cents (it should be on the immediate west of the 2½ cents referred to in Ext.A4) is assigned to the plaintiff. Going by Ext.A4 that one cent cannot take in any portion of the building. The remaining 4 cents is equally assigned to defendant Nos.2 and 3 and that should come on the west of the said one cent. The said 4 cents also cannot take in the building but going by Exts.C1 and C1(a) the major portion of the building must fall in that 4 cents. No such division is possible. In the way the building is situated and occupied by plaintiff and family neither defendant No.4 nor defendant Nos.2 and 3 under her could get possession of the respective portions allegedly assigned to them as per Exts.A4 and A5, respectively. Mere payment of revenue cannot prove title or possession. These circumstances have been taken note of by the first appellate court. First appellate court also has taken note of the close relationship between the parties and held that there was in fact no sale of the property to defendant No.4 as per Ext.A4 and preponderance of probability is in favour of the plea of the plaintiff that Ext.A4 was executed merely as security for due repayment of the loan taken from defendant No.4 6. Learned counsel for appellants lastly argued that R.S.A. NO.4 of 2010 -: 8 :- assuming that plaintiff was to discharge the liability of defendant No.4, there is no evidence that plaintiff discharged that liability. Assuming that any amount is due to defendant No.4, that is no ground to resist the suit for declaration of title, possession and injunction. Remedy of defendant No.4 if at all she is entitled to any amount is elsewhere. 7. On going through the judgment under challenge, Exts.C1 and C1(a) and hearing counsel for defendant Nos.2 and 3/appellants I do not find any substantial question of law involved requiring admission of this Second Appeal. Second Appeal is dismissed in limine. Interlocutory Application No.6 of 2010 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.4 of 2010 -: 9 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO. 4 of 2010 =================== J U D G M E N T 5TH JANUARY, 2010 R.S.A. NO.4 of 2010 -: 10 :-