IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 RSA.No. 993 of 2007() -------------------------- AS.49/2002 of PRL.SUB COURT,IRINJALAKUDA OS.234/2000 of ADDL.M.C.,IRINJALAKUDA .................... : APPELLANT(ADDL.APPELLANT NO.2 IN THE FIRST APPEAL AS IMPLEADED BEING THE LEGATEE OF THE ORIGINAL PLAINTIFF LATE NARAYANAN ------------------------------------------------------------------------------------ UNNICHEKKAN, S/O. LATE THUPRATH NARAYANAN, ALOOR VILLAGE, KAROOR DESOM, MUKUNDAPURAM TALUK, KAROOR P.O., PIN-680 683. BY ADV. SRI.S.VINOD BHAT RESPONDENTS: (1ST RESPONDENT HEREIN IS THE SOLE DEFENDANT IN THE TRIAL COURT AND THE 1ST RESPONDENT IN THE FIRSTAPPEAL;RESPONDENTS 2 TO 4 HEREIN ARE IMPLEADED BEING LEGATEES OF THE ORIGINAL PLAINTIFF LATE NARAYANAN. RESPONDENT ------------------------------------------------------------------------------------- 1. PRAJEESH, S/O. LATE THUPRATHU VASU, ALLOOR VILLAGE, KAROOR DESOM, MUKUNDAPURAM TALUK, KAROOR P.O., PIN-680 683. 2. AJI, S/O. THUPRATHU VASU, ALLOOR VILLAGE, KAROOR DESOM, MUKUNDAPURAM TALUK, KAROOR P.O., PIN-680 683. 3. RAJANI, D/O. THUPRATHU VASU, ALLOOR VILLAGE, KAROOR DESOM, MUKUNDAPURAM TALUK, KAROOR P.O., PIN-680 683. 4. MALLIKA, W/O. THUPRATHU VASU, ALLOOR VILLAGE, KAROOR DESOM, MUKUNDAPURAM TALUK, KAROOR P.O., PIN-680 683. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.214/2007 IN R.S.A.NO.993/2007 23.1.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO.993 OF 2007 =========================== Dated this the 23rd day of January, 2008 JUDGMENT The son of the original plaintiff who got himself impleaded on the strength of a will executed by deceased plaintiff, the appellant in the first appeal, is the appellant herein. First respondent is the defendant. Plaint schedule property admittedly originally belonged to deceased plaintiff under registered settlement deed 2218/1988. Plaintiff gifted the property in favour of his son Madhavan. Subsequently contending that Madhavan executed original of Ext.B2 registered agreement dated 27.1.1990 whereunder plaint schedule property was agreed to be sold to the first respondent, he instituted O.S.1453/1998 against Madhavan before Munsiff Court, Irinjalakuda for specific performance of Ext.B2 agreement. Admittedly Madhavan did not contest the suit and first respondent obtained a decree. A sale deed was R.S.A.993/2007 2 got executed in execution of the decree from court. The plaintiff cancelled Ext.B1 settlement deed by executing Ext.A1 cancellation deed on 22.10.1998. On the strength of that cancellation deed he instituted O.S.234/2000 before Additional Munsiff Court, Irinjalakuda contending that under Ext.A1, the settlement deed executed in favour of his son Madhavan was cancelled and as per a will executed on 27.10.1989 he bequeathed 20 cents of that property to the appellant herein and five cents to the legal heir of deceased Vasu and it was also provided that in case Madhavan comes back within twelve years, that property shall be given to Madhavan. Plaintiff contended that first respondent obtained the decree in O.S.1453/1998 creating forged documents and Madhavan did not execute any agreement and did not agree to sell any property and the summons in that suit was not served on Madhavan but on Krishna C. Nair and Madhavan was not heard of during the last more than twenty years and therefore the decree obtained by R.S.A.993/2007 3 first respondent is not valid and binding on the plaintiff or the plaint schedule property and first respondent has no right to the plaint schedule property. Relief sought for was to set aside the decree obtained by first respondent in O.S.1453/1998 as well as the registered sale deed executed in execution of that decree and for a permanent prohibitory injunction restraining respondents from trespassing into the plaint schedule property. 2. Respondents resisted the suit contending that plaintiff has no right to institute the suit. It was contended that in 1988 plaintiff transferred his right in favour of Madhavan and the gift deed was accepted and acted upon and thereafter plaintiff is not entitled to cancel the same and under Ext.A1 plaintiff is not entitled to claim any right in the property. It was contended that Madhavan subsequently under Ext.B2 registered agreement agreed to sell plaint schedule property and for specific performance of the agreement R.S.A.993/2007 4 O.S.1453/1998 was instituted by first respondent and the decree is valid and binding on Madhavan and not vitiated on any ground and plaintiff is not entitled to the decree sought for. 3. Learned Munsiff on the evidence of Pws.1 to 5, Dws.1 to 6 and Exts.A1 to A3 and Exts.B1 to B9 (a) and Exts.X1 to X2(a) dismissed the suit holding that the decree obtained in O.S.1453/1998 is not vitiated and registered sale deed 4951/1999 executed through court in execution of the decree cannot be challenged and the plaintiff is not entitled to the decree sought for. Plaintiff challenged the judgment before Sub Court, Irinjalakuda in A.S.49/2002. On the death of plaintiff on the strength of the will executed by the deceased plaintiff appellant herein was impleaded. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellant was R.S.A.993/2007 5 heard. 5. The argument of the learned counsel is that courts below did not properly appreciate the evidence. It was argued that evidence establish that Madhavan was not heard of for more than seven years prior to the institution of the suit and evidence of PW1 along with Pws. 2 to 4 establish that he was not heard of for the last twenty years and therefore he is presumed to be dead and evidence establish that in O.S.1453/1998 summons was not served on Madhavan but on K.C. Nair and the said suit was obtained on a forged document and the agreement for sale was not executed by Madhavan and therefore courts below should have found that decree obtained in O.S1453/1998 or the sale deed obtained through court in execution of decree is not valid and binding on the plaint schedule property or the plaintiff and as the gift deed executed in favour of Madhavan was not accepted by him and it was cancelled under Ext.A1, courts below should have found that plaintiff has title to R.S.A.993/2007 6 the property and the decree in O.S.1453/1998 as well as sale deed executed pursuant to the decree should have been set aside. 6. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 7. It is admitted case that deceased plaintiff executed a registered settlement deed in 1988 whereunder plaint schedule property was gifted to his son Madhavan. The case of the plaintiff was that the said gift deed was cancelled under Ext.A1 and therefore he has title to the property. It was also contended that Madhavan was not heard of for more than twenty years prior to the institution of the suit and the gift deed was not accepted and therefore he is competent to cancel the gift under Ext.A1. The case of plaintiff was that though first respondent obtained a decree in O.S.1453/1998 for specific performance of agreement for sale, Ext.B2 was not executed by Madhavan and it was a document R.S.A.993/2007 7 fradulently created by first respondent and the decree in O.S.1453/1998 was obtained without service or summons on Madhavan and summons was served not on Madhavan but K.C. Nair and therefore decree is not valid and binding on the plaintiff and courts below should have granted the decree. 8. The original gift deed was executed by deceased plaintiff in 1988. If the case of plaintiff is true and Madhavan did not accept the said gift deed and for that reason Ext.A1 cancellation deed was executed, cancellation deed would have been executed immediately after execution of settlement deed in 1988. Ext.A1 shows that it was executed on 22.10.1998. O.S.1453/1998 was instituted in October, 1998. Therefore it is clear that Ext.A1 was executed, because of the institution of O.S.1453/1998 by first respondent on the strength of Ext.B2 agreement for sale. Ext.B2 is a registered agreement for sale. If the plaintiff was aware that Madhavan did not execute Ext.B2 and on the R.S.A.993/2007 8 strength of a fradulent document, first respondent instituted the suit claiming specific performance of the agreement for sale, one would naturally expect the father plaintiff to approach the court to prevent granting of a fradulent decree in favour of first respondent. Neither the father nor appellant brother approached the court stating that Madhavan is not heard of. Instead Ext.A1 cancellation deed was executed. The argument of learned counsel is that though O.S.1453/1998 was decreed, the decree was ex parte and no summons was served on Madhavan and instead summons was served on K.C. Nair. Learned counsel made available a copy of the plaint in O.S.234/2000 as well as copy of plaint in O.S.1453/1998 which was produced along with the second appeal. Plaint in O.S.234/2000 does not disclose the details of any fraud or that the decree was fraudulently obtained. It was only contended that agreement was fradulently created and summons was not served on Madhavan. A decree passed by the civil court, R.S.A.993/2007 9 even if an ex parte decree, cannot be challenged by filing a separate suit by the defendant or a third party disputing the validity on the ground that there is no proper service of summons or the document relied in the suit are forged. These are facts to be agitated before that court and in a separate suit and that too without an allegation of fraud. On the evidence courts below found that decree in O.S.1453/1998 is not vitiated and pursuant to the decree for specific performance of the agreement a sale deed was executed through court and it is valid and binding on the plaintiff as well as the plaint schedule property. As the evidence establish that pursuant to the acceptance of the settlement deed executed by plaintiff in 1988, Madhavan the donee executed Ext.B2 registered agreement for sale in 1990. Evidence was also adduced to prove that Madhavan had received part of the sale consideration evidenced by money order receipts produced. Trial court and first appellate court on the evidence disbelieved the R.S.A.993/2007 10 case of plaintiff that Madhavan was not heard of either on the date of execution of settlement deed or Ext.B2 or the date when the decree was obtained. These factual findings arrived at by courts below on the basis of appreciation evidence cannot be interfered by reappreciating the evidence in exercise of the powers of this court under section 100 of Code of Civil Procedure. The appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006