IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 AS.No. 558 of 1996() -------------------- OS.638/1992 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT(S): PLAINTIFF: ------------------------------------------ GEORGEKUTTY, S/O.THOMAS, PLAMMOOTTIL HOUSE, VEROOR, CHETHIPUZHA VILLAGE, CHANGANACHERRY TALUK. BY ADV. MR.JOHN JOSEPH RESPONDENT(S): DEFENDANT: ------------------------------------------------ ANIAMMA, W/O.DEVASSIA, KALLANCHIRA HOUSE, MADAPPALLY VILLAGE, CHANGANACHERRY TALUK. BY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K.SURENDRA MOHAN, J. ------------------------------------------- A.S.No.558 of 1996 ------------------------------------------- Dated this the 23rd day of June, 2009 JUDGMENT The plaintiff in a suit for recovery of money is the appellant. As per judgment and decree dated 30.10.1995, the suit has been dismissed by the Principal Sub Judge, Kottayam, with costs. The said judgment and decree are under challenge in the above appeal. 2. The suit was filed in the following facts and circumstances: The respondent - defendant is the owner in possession of an extent of 30 cents of land comprised in Sy.No.776/1A of Madappally Village. On 10.8.1990, the defendant is alleged to have entered into an agreement conveying to the plaintiff the right to quarry granite from the said land for a period of three years. The agreement was on condition that the plaintiff paid royalty at the rate of Rs.25/- per lorry load of granite extracted. The plaintiff further alleged that he had paid an amount of A.S.No.558 of 1996 2 Rs.20,000/- towards the value of granite expected to be mined. It is further stipulated in the agreement that if the plaintiff was not able to extract granite worth Rs.20,000/-, the defendant should return the amount paid by the plaintiff after deducting the value of the quantity of granite actually removed by him. Pursuant to the agreement, the plaintiff is alleged to have constructed a road from the nearby main road up to the property for transporting the granite. It is further stated that a shed was also put up for the workers to stay and for keeping the tools of the plaintiff. For the above construction, an amount of Rs.6,000/- was spent by the plaintiff. The plaintiff further alleges that in the above circumstances, on 22.9.1990, the defendant caused an agent of her husband to file a suit before the Munsiff's Court, Changanassery as O.S.No.504 of 1990 and an order of injunction was obtained restraining the plaintiff from quarrying granite from her property. Thereafter, the defendant is alleged to have demolished the shed and taken away his tools. Though a demand was made A.S.No.558 of 1996 3 by issuing a registered notice on 20.3.1991, the defendant had failed to return the amount of Rs.20,000/- received by her or to pay the amount of Rs.6,000/- spent by the plaintiff. Therefore, he prayed for recovery of the said amount with interest thereon at the rate of 18% per annum from 22.3.1991 till the date of realisation. 3. The suit was contested by the respondent - defendant denying the allegations in the plaint. According to her, the property in question was not in her ownership and possession. It belongs to her husband and the mother of the respondent has life interest in the property, in exercise of which she is taking income from it. The husband of the defendant is in Military service. In 1987, the defendant's husband had permitted the plaintiff to quarry granite from the property. When he came on leave, the plaintiff approached him again for permission to continue to quarry granite from his property, which was refused by him. The defendant denied that she had entered into an agreement on A.S.No.558 of 1996 4 10.8.1999 agreeing to permit the plaintiff to quarry granite from the property. According to her, the document produced by the plaintiff was a fabricated one. She has not received the amount of Rs.20,000/- or any other amount from the plaintiff. When the plaintiff attempted to quarry granite from the property by force and to put up a shed, the defendant informed her husband about it. Since her husband was away in connection with his employment, he executed a power of attorney in favour of one Lalan, who filed O.S.No.504 of 1990 against the plaintiff. The court granted an order of temporary injunction against the plaintiff. She denied the assertion of the plaintiff that he had put up a shed in the property. The allegation that she had demolished the shed of the plaintiff was also denied. Therefore, according to her, the plaintiff was not entitled to recover any amount from her. 4. On the above pleadings, the court below framed four issues and tried the suit. They are the following:- A.S.No.558 of 1996 5 1) Has there been an agreement between the Plaintiff and the defendant to quarry granite? 2) Whether the defendant has received Rs.20,000/- from the plaintiff ? 3) What is the damages, if any, to which the plaintiff is entitled? 4) What is the order as to costs? 5. The evidence in the case consists of the oral evidence of PWs.1 to 4 and DW1, besides, Exts.A1 to A7 documents. After a careful consideration of the evidence on record and the rival contentions of the parties, the court below dismissed the suit with costs. According to the trial court, the agreement dated 10.8.1990 which has been marked as Ext.A1 during the trial was not a genuine document executed between the plaintiff and the defendant. Therefore, the claim of the plaintiff for return of the amount that is alleged to have been paid pursuant to the said agreement also has been found against. The trial court has therefore, proceeded to dismiss the suit with costs. This appeal is filed A.S.No.558 of 1996 6 challenging the said judgment and decree. 6. According to the learned counsel for the appellant Mr.John Joseph, the conduct of the defendant in the present case was absolutely unreasonable. She had entered into Ext.A1 agreement and had also received the amount of Rs.20,000/-, which is acknowledged receipt of, in the agreement itself. Pursuant to the agreement, the appellant had expended money for conducting quarrying operations in the property. However, the entire amount was lost because of the default on the part of the defendant. After having entered into an agreement, she had caused the institution of a suit through her husband and had obtained an order of temporary injunction against him. Subsequently, the suit was dismissed for non- prosecution, as evidenced by Ext.A3. 7. Further, according to the counsel for the appellant, the case pleaded by the defendant was full of inconsistencies which show her absolute lack of good faith. Though her case in the written statement is that A.S.No.558 of 1996 7 no agreement was executed between her and the plaintiff on 10.8.1990, she admits when examined as DW1 that the signature in which Ext.A1 was hers. However, she puts forward a new case that she was coerced into affixing her signature on Ext.A1 by the Sub Inspector of Police, Changanassery and that the agreement was executed at the Changanassery Police Station. Though in her reply notice Ext.A5, her case is that she is in joint possession and ownership of the property with her husband, in her written statement she says that the property belongs to her husband. According to the counsel for the appellant, the property is her 'Sthree dhanam' property and even if it is in the name of her husband, it belongs to her, as held by this Court in the decision reported in Vedamani Palavva v Ummini Nadar Kochukrishnan and another (AIR 1974 Kerala Page 11). It is pointed out by the learned counsel that the execution of Ext.A1 agreement is proved by the evidence of PW1, who is the plaintiff, PW2 who is the scribe and PW3 who is a witness to the said A.S.No.558 of 1996 8 document. The court below has wrongly discarded the evidence of the above witnesses as unreliable. Regarding the amount of Rs.20,000/- that is alleged to have been spent by the plaintiff, the counsel for the appellant relies on Ext.A7 bill and the evidence of PW4, who is a labourer. Since the above items of evidence clearly establish the case of the appellant - plaintiff, it is pointed out that the judgment and decree of the court below are unsustainable and liable to be set aside. 8. As noted above, the case of the plaintiff is that on 10.8.1990, the plaintiff and defendant had entered into an agreement permitting the appellant - plaintiff to quarry granite from an item of property belonging to the respondent - defendant. Ext.A1 is the agreement. The agreement is disputed by the respondent and according to her, it is a fabricated document. When the respondent was examined as DW1, what she has stated is that at the instance of the plaintiff, she was taken to the Police Station and was coerced into affixing her signatures on two sheets of paper. What she has stated A.S.No.558 of 1996 9 is that they were white papers and that only the bottom portion was shown to her. Ext.A1 document shows that it is on stamp paper. This is pointed out by the counsel for the appellant as a major discrepancy for the reason that the stamp paper is not 'white paper', as commonly understood. However, it is worth noticing that the respondent - defendant is not an educated person as is evident from a perusal of her signature itself. She is also a house wife. It is a common usage to refer to any blank sheet of paper as 'white paper' (വളകടലസ ), in Malayalam. An understanding of the subtle difference between a 'white paper' and 'stamp paper' in the manner understood by persons in the know of things cannot be attributed to a rustic lady and a house wife with little or no education. To attribute distinctions that are understood in the legal parlance to the testimony of a villager and house wife and to interpret the evidence of such a person on the basis of such nice distinctions would not be appropriate. A.S.No.558 of 1996 10 Therefore, the evidence of DW1 cannot be found fault with for the above discrepancy. 9. The reliability of Ext.A1 would depend entirely on proof regarding its execution. As noted above, the signatures of the respondent-defendant in Ext.A1 are admitted, but, according to her, the said signatures were forcibly affixed on blank papers by the Sub Inspector at the Changanassery Police Station. The defendant also has a case that the plaintiff had been granted permission to quarry granite from the property during 1987 by her husband and that he had refused to renew the permission later on. Consequently, the plaintiff, who was not on good terms with the defendant for the said reason, had instituted the suit on the basis of Ext.A1 agreement. The evidence on the side of the plaintiff has to be considered in the back ground of the above contentions. The plaintiff, who was examined as PW1, has deposed that he has never requested the defendant to permit him to quarry granite from her property. According to him, the transaction was brought about A.S.No.558 of 1996 11 through one Thomas. He pretends ignorance about any of the details of the defendant or of the property. He even says that he does not know whether the defendant was residing with only her mother and children, since her husband is not in station. He pleads ignorance about an earlier agreement of 1987 pursuant to which he is alleged to have quarried granite from the same property. It is pertinent to note that there is no evidence of any such agreement available in the case. However, when he was questioned whether anyone else had blasted granite from the property before the execution of Ext.A1 agreement, he says he does not know anything about that. It is difficult to believe that a person would have agreed to blast rocks from a property without visiting the same, ascertaining the quality of the rock available and assessing the quantity thereof. It is to be noted that the period mentioned in Ext.A1 is three years, which cannot be stipulated without any such previous assessment. The plaintiff has gone to the extent of saying that the property was not visible while A.S.No.558 of 1996 12 passing along the road, which clearly indicates that he was only evading the question. He has been questioned by the Court also and he admitted that he has never gone to the residence of the plaintiff at any time. The evidence of PW1 shows that he does not know where the plaint property is and has no idea about the nature of the property or the condition thereof. He has also not gone to the residence of the defendant at any time. 10. According to the plaintiff, Ext.A1 agreement was executed in the office of one Mathews. He has not been examined in the case. The identity or whereabouts of the said person is also not available. There is only some indication that he is a document writer at Changanassery. Therefore, there is no evidence regarding the circumstances under which Ext.A1 was executed. PW2 claims to be a document writer. He started his deposition by saying that he was in Changanassery Town during 1990, close to the Sub Registrar's Office. However, in cross examination, he says that from 1986 onwards, he was having an office at A.S.No.558 of 1996 13 Thengana, 3 kms. away from Changanassery, where he was functioning as a document writer with five assistants in his office. If he was having an office at Changanassery or at Thengana, it is difficult to understand why Ext.A1 was prepared and executed by him in the office of another person, Mr.Mathew referred to above. He further deposes that the recitals in Ext.A1 were drafted by him and that no one had supplied any details regarding the same. It is difficult to understand how a document writer at Changanassery or Thengana could prepare a document like Ext.A1 without any details being supplied by the parties. PW3 is a witness to Ext.A1. He is a person involved in the same work as the plaintiff, in quarrying operations. His evidence does not inspire any confidence and appears to be loyally reproducing the case of the plaintiff. It is worth noticing that the court below that had the benefit of seeing the witnesses and watching their conduct and demeanour in court has found them unreliable and unworthy of credence. In a case like the present one where the issue A.S.No.558 of 1996 14 turns entirely on the acceptability of the oral evidence, it is not safe for an appellate court to dislodge the findings of the trial court. The trial court has noticed the fact that the written statement in the present case does not contain an averment that Ext.A1 is a fabricated document. However, the Court has found that such a case had been put forward even in Ext.A5 reply notice and therefore, no prejudice is caused to the plaintiff by the omission of the defendant to plead the said fact in her written statement. Since the evidence relating to the execution of Ext.A1 is unsatisfactory, it has been found that the plaintiff has not been successful in proving the execution of Ext.A1. In the absence of proof regarding the execution of Ext.A1, the plaintiff also has no right to recover any amount from the defendant. 11. The question as to whether the property actually belongs to the defendant or to her husband or whether the same is 'Sthreedhanam' property are issues that do not arise for consideration, since the execution of Ext.A1 has not been proved, as found above. The A.S.No.558 of 1996 15 counsel for the appellant has also sought to make much of the fact that the defendant has not taken any action to nullify Ext.A1, though the same was actually executed by her. Especially so, when even according to her a copy thereof had been given to her. A person who fabricates a document would never take the risk of handing over a copy thereof to the victim, it is pointed out. There is no evidence in the present case to show whether there was any copy of Ext.A1 agreement available with the defendant, as alleged. True, she has deposed that a copy thereof had been given to her. Her explanation is that she had informed her husband about the execution of the agreement in the Police Station. Thereupon, he had instituted a suit against the plaintiff as O.S.No.504 of 1990 through his power of attorney. Considering the situation of the defendant in life and her lack of education, the explanation can be considered to be reasonable. It is further pointed out that under Section 19 of the Contract Act, the agreement Ext.A1 was voidable at the option of the defendant. Since she A.S.No.558 of 1996 16 had not taken any action to avoid the agreement, it was capable of enforcement. The present suit and appeal are proceedings for enforcement of the agreement Ext.A1. The contentions of the defendant clearly show that her object is to avoid the agreement. Therefore she has exercised her option under Section 19 of the Contract Act. It is certainly with her rights to put forward her contentions to avoid the contract in the present suit, as she has done. For the foregoing reasons, it is found that the judgment and decree under appeal are justified in the facts and circumstances of the case. The judgment and decree of the court below are confirmed. The appeal is dismissed. No costs. K.SURENDRA MOHAN Judge css/ A.S.No.558 of 1996 17 K.SURENDRA MOHAN JUDGE --------------------------------------- AS.N0.558 OF 1996 --------------------------------------- JUDGMENT 23.06.2009