IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 RSA.No. 1214 of 2009() ---------------------- AS.403/2005 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.1795/2001 of II ADDL.MUNSIFF COURT.,TRIVANDRUM .................... APPELLANT/APPELLANT/SECOND DEFENDANT -------------------------------------------------------- SHYAMLAL, AGED 39, S/O.DIVAKARAN, T.C.28/802, LAL BHAVAN, PUNNAPURAM, FORT, THIRUVANANTHAPURAM. BY ADV. SRI.P.S.BIJU SRI.SAJI VARGHESE KAKKATTUMATTATHIL RESPONDENTS/RESPONDENTS/PLAINTIFF / THIRD DEFENDENT AND 1st DEFENDANT -------------------------------------------------------- 1. M.BIJU, AGED 33 YEARS, S/O.N.MANI, TAX PRACTITIONER, RESIDING AT T.C.41/2658, THIRUVATHIRA, MANACAUD.P.O, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM (PLAINTIFF). 2. VIJAYAKUMAR, AGED 39 YEARS, S/O.KUNJUKRISHNAN PILLAI, RESIDING AT VADAKKEPIRAPPANVEEDU, PRAVACHAMBALAM, THIRUVANANTHAPURAM. (THIRD DEFENDANT). THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1214 of 2009 --------------------------------------- Dated this 22nd day of January, 2010 JUDGMENT The second appeal arises from judgment and decree of learned 3rd Additional District Judge, Thiruvananthapuram in A.S.No.403 of 2005 confirming judgment and decree granted by learned Second Additional Munsiff, Thiruvananthapuram in O.S.No.1795 of 2001. Respondent No.1 filed the suit seeking decree for prohibitory injunction against appellant, respondent No.2 and defendant No.1 in respect of the property scheduled, 1.665 cents in Sy.No.786 and the building situated thereon bearing door No.T C No.43/1072(U). According to respondent No.1, 5 cents including the suit property originally belonged to defendant No.1 (she remained ex parte in the trial court and died pending suit) as per assignment deed No.3636 of 1979. She settled the suit property in favour of appellant/defendant No.2, her son as per Ext.B1, settlement deed No.2497 of 1999 (Ext.B1 is its copy). Appellant in turn sold the suit property to respondent No.2/defendant No.3 as per Ext.A2(a), sale deed No.65 of 2000 (Ext.A2 is its copy). Respondent No.2 sold the property to respondent No.1/plaintiff as per Ext.A1(a) sale deed No.3224 of 2001 (Ext.A1 is its copy). Thus, respondent No.1/plaintiff claimed to be the absolute owner of the said property. He apprehended trespass at the hands of appellant, R.S.A.No.1214 of 2009 2 respondent No.2 and defendant No.1 and hence the suit. Respondent No.2/deceased defendant No.1 remained ex parte. Appellant contented that respondent No.1 has no title or possession of the suit property and that building in the suit property does not bear any door number. Appellant got title and possession of the suit property as per Ext.B1 settlement deed No.2497 of 1999. While so he borrowed Rs.20,000/- from respondent No.2 and as a security executed Ext.A2(a) sale deed No.65 of 2000. Respondent No.2 had agreed to re-convey the property to the appellant on repayment of loan. Respondent No.2 started harassing deceased defendant No.1 who was occupying the building in the suit property. Thereon deceased defendant No.1 filed O.S.No.1111 of 2001 against appellant and others claiming right of residence in the building (No.T C 38/802) in the suit property (learned counsel tells me that the said suit ended in dismissal for default). It is also the contention of appellant that he has cancelled Ext.A2(a), sale deed No.65 of 2000 as per Ext.B2, cancellation deed No. 3690 of 2001. At any rate, Ext.A2(a), sale deed No.65 of 2000 is a sham document which has not taken effect. Appellant also made a counter claim for a declaration that document No.3224 of 2001 (Ext.A1 executed by respondent No.2 in favour of respondent No.1) was sham, a declaration that Ext.A2(a), sale deed No.65 of 2000 is executed only as security for the loan availed from respondent No.2 and a direction to respondent R.S.A.No.1214 of 2009 3 No.2 to execute a deed of re-conveyance in favour of the appellant. Trial court found that respondent No.1 has title over the suit property, he was in possession of the same as on the date of the suit but, he was dispossessed during the pendency of the suit. Taking note of the subsequent event learned Munsiff held that it is the duty of court to grant relief and accordingly granted a decree for recovery of possession of the suit property. That judgment and decree were challenged by the appellant before the first appellate court. Learned III Additional District Judge found that there is no reason to interfere with the judgment and decree of the trial court and dismissed the appeal. Hence the second appeal urging by way of substantial question of law whether courts below are justified in not granting declaratory decree that Ext.A2(a) sale deed is intended only as security for loan transaction and whether decree for recovery of possession could be granted without a specific prayer for the same. Learned counsel referring to the said points contended that the finding of the courts below are not sustainable. 2. There is no dispute about the documents executed between defendant No.1, appellant and respondent No.2 which I have stated above. There is also no dispute that respondent No.2 executed Ext.A1(a), sale deed No.3224 of 2001 in favour of respondent No.1 which purported to convey title and possession of the suit property in R.S.A.No.1214 of 2009 4 his favour. Contention advanced by the appellant is that Ext.A2(a), sale deed No.65 of 2000 executed by him in favour of respondent No.2 was only as a security for the loan transaction and that Ext.A1(a), sale deedNo.3224 of 2001 executed by respondent No.2 in favour of respondent No.1 is a sham transaction. Going by the recitals in the documents, it is not disputed that it revealed a sale of the property. The contention is only that Ext.A2(a), sale deed No.65 of 2000 was executed as security with a condition for its re-conveyance. Regarding that what is available is only evidence of appellant as DW1. It is true that even as against the recitals in the documents it is open to the parties to adduce evidence that the document is sham. But there should be convincing evidence in that regard. There is no such evidence in this case. It is revealed by Ext.A9 that respondent No.1 had, on the security of the suit property and on deposit of the original title deed availed loan from the State Bank of Hyderabad. Evidence revealed that mutation of the property was effected in the name of respondent No.2 on the strength of Ext.A2(a), sale deed No.65 of 2000. On the evidence on record, the courts below are justified in holding respondent No.1 has title over the suit property. 3. Then the question is whether the suit being one for injunction alone, trial court was justified in granting decree for recovery of possession. Trial court granted that relief on the finding R.S.A.No.1214 of 2009 5 consequent to the suit, respondent No.1 was dispossessed from the suit property. Trial court referred to the decision in Lakshmikutty Amma Vs. Krishna Pillai (1992(2) KLT 256) as to the duty of court to mould relief in such a situation. Trial court was of the view that since respondent No.1 was dispossessed after institution of the suit the court has a duty to restore possession of the property to respondent No.1 as it was on the date of suit. It was accordingly that decree for recovery of possession was granted in favour of respondent No.2. On going through judgment and decree under challenge and hearing learned counsel I do not find any substantial questions of law involved in the second appeal requiring interference. The second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/