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PARAMU versus KALLYANI

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PARAMU v. KALLYANI - SA No. 242 of 1992(D) [2007] RD-KL 10489 (18 June 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA No. 242 of 1992(D)

1. PARAMU
... Petitioner

Vs

1. KALLYANI
... Respondent

For Petitioner :SRI.MPR.NAIR

For Respondent :SRI.V.BHASKARA MENON

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :18/06/2007

O R D E R

M.SASIDHARAN NAMBIAR,J.


===========================
S.A. NO.242 OF 1992
===========================

Dated this the 18th day of June, 2007



JUDGMENT

First defendant in O.S.354/1983 on the file of Munsiff Court, Irinjalakuda is the appellant. On the death of the first appellant, respondents 5 and 7, who were the original defendants 2 and 5 were transposed as additional appellants. On the death of second respondent, respondents 4 to 14 were impleaded as the legal heirs. Plaint schedule property is 27 = cents in survey No.469/2 of Kalloor Thekkummury Village. It admittedly originally belonged to Govindan. First respondent is the wife and second respondent her brother and third respondent, the son of another brother of the first respondent. Respondents claim title to the plaint schedule property under Ext.A1 settlement deed executed by Govindan in their favour on 26.8.1970. They contended that respondents have no manner of right over the plaint schedule property S.A.242/1992 2 but taking advantage of the absence of respondents, defendants trespassed into the plaint schedule property and forcibly put a hut therein and they have no right to do so and therefore they are entitled to get a decree for recovery of possession with mesne profits. The defendants in the written statement admitted the title of Govindan but contended that under Ext.A1 settlement deed plaintiffs did not derive any right or title to the property. It was contended that Govindan had entered into an oral agreement for sale with the first defendant and after receiving Rs.1000/- as part of the sale consideration, Ext.B1 the original title deed of the plaint schedule property was handed over to the first defendant and put him in possession of the property and eversince 1969 first defendant has been in possession of the plaint schedule property. It was further contended that as per the agreement for sale, sale price was fixed S.A.242/1992 3 at Rs.56/- per cent and it was agreed that after measuring the property and paying the balance sale consideration the sale deed will be executed and defendants are in possession of the property under the agreement for sale and plaintiffs are not entitled to the decree sought for.

2. Learned Munsiff framed the necessary issues. On the side of the plaintiffs, third plaintiff was examined as PW1 and Advocate Commissioner who submitted Ext.C1 report was examined as PW2. Ext.A1 registration copy of the settlement deed was also marked. On the side of the defendants, first defendant was examined as DW1 and three witnesses who were the alleged mediator and person allegedly present at the time of oral agreement for sale were examined. Ext.B1 was also marked. Learned Munsiff on the evidence found that plaintiffs have no valid explanation as to how first defendant came into custody of Ext.B1 if not under the oral agreement S.A.242/1992 4 for sale set up by him. Learned Munsiff also found that evidence of Dws. 2 to 4 probabilise the case of oral agreement for sale spoken to by DW1. It was then held that Ext.A1 settlement deed was executed thereafter fraudulently by Govindan and plaintiffs did not derive any title to the property and therefore the plaintiffs are not entitled to the decree for recovery of possession sought for. The suit was dismissed. Plaintiffs challenged the decree and judgment before Sub Court, Irinajalakuda in A.S.29/1986. Learned Sub Judge on reappreciation of evidence found that Ext.A1 settlement deed establish title of the plaintiffs. Learned Sub Judge on reappreciation of evidence found that the oral agreement for sale pleaded and sought to be proved are different and the defendants cannot resist the claim for recovery of possession under Section 53A of Transfer of Property Act also. A decree for recovery of S.A.242/1992 5 possession as sought for was granted. It is challenged in the Second Appeal.

3. The Second Appeal was admitted formulating the following substantial questions of law. 1) Are not the plaintiffs in a suit for recovery of possession bound to produce the original of the title deed on the basis of which they claim title to the property? 2) Are the plaintiffs in a suit based on title entitled to the relief for recovery of possession on the basis that plaintiffs have a better title than that of the defendants? 3) Is not the possession of the original title deed with the defendants conclusive evidence of possession on the strength of title?

4. Learned counsel appearing for the appellants and respondents were heard.

5. The argument of the learned counsel appearing for the appellants was that the first S.A.242/1992 6 appellate court did not properly appreciate the evidence and the fact that there is no valid explanation for the plaintiffs as to how the defendants came into custody of Ext.B1 otherwise than by the agreement for sale set up by them was not appreciated. It was argued that evidence of Dws.2 to 4 who were present at the time of the oral agreement by the first defendant with Govindan, establish that defendants were put in possession of the property after receiving part of the sale consideration of Rs.1000/- and thereafter Govindan is not entitled to execute Ext.A1 settlement deed in favour of the plaintiffs and eventhough it was fraudulently executed, plaintiffs did not derive any title to the property. It was vehemently argued by the learned counsel appearing for the appellants that the evidence on record establish that defendants have been in possession of the property from 1969 S.A.242/1992 7 onwards and in such circumstances, a decree should not have been granted by the first appellate court.

6. Learned counsel appearing for the contesting respondent argued that the first appellate court has appreciated the evidence in the proper perspective and an oral agreement for sale as alleged in the plaint is different from the oral agreement sought to be proved by the evidence of Dws.1 to 4 and there is no evidence to establish oral agreement for sale. It was also argued that Ext.A1 settlement deed executed by Govindan establish the title of appellants and as the defendants are only claiming that there is an agreement for sale which was not established, plaintiffs are entitled to the decree for recovery of possession granted by the first appellate court and no substantial question of law in fact arises in the appeal and the Second Appeal is only to be dismissed. S.A.242/1992 8

7. It is admitted case that plaint schedule property originally belonged to Govindan. It was specifically contended in the plaint that Govindan executed Ext.A1 settlement deed whereunder he transferred his rights in favour of his wife, the first plaintiff and second plaintiff her brother and third plaintiff their nephew and plaintiffs have thus title to the plaint schedule property. There was no specific denial of execution of Ext.A1 settlement deed. Even when DW1 was examined, there was no case that Govindan did not execute Ext.A1 settlement deed. On the other hand, what was contended was that Ext.A1 was fraudulently executed by Govindan, after he entered into an alleged agreement for sale with the first defendant. Even if Govindan had entered into an agreement for sale, that will not vitiate Ext.A1 settlement deed so long as no sale deed was executed in favour of first defendant. Though it S.A.242/1992 9 was vehemently argued by learned counsel appearing for the appellants that the non-production of original of Ext.A1 is fatal, in the facts and circumstances of the case, I do not find that non- production of the original of Ext.A1 is relevant or material. As the plaint schedule property admittedly belonged to Govindan and Govindan executed Ext.A1 settlement deed in favour of his wife and brother-in-law and their nephew and execution of the settlement deed was not disputed in the written statement, non-production of the original of Ext.A1 is not at all material. As rightly found by first appellate court, the production of Ext.A1 and the oral evidence establish that the title of Govindan in the plaint schedule property was transferred in favour of the plaintiffs under Ext.A1. Therefore plaintiffs have title to the plaint schedule property.

8. When the plaintiffs have title to the S.A.242/1992 10 property, the only question is whether the defendants have got better title to the plaint schedule propety. The only defence raised in the written statement was that there was an oral agreement for sale by Govindan in favour of the first defendant and pursuant to the oral agreement for sale after receiving part of the sale consideration of Rs.1000/-, Ext.B1 title deed was handed over to the first defendant and the plaint schedule property was also put in the possession of the first defendant and thus the plaintiffs are not entitled to the recovery of possession sought for. Even if there was an agreement for sale, so long as no sale deed is executed, the title continues with Govindan subject to the right if any, of the first defendant under the oral agreement for sale. When the agreement for sale did not materialise and no sale deed was executed, and Ext.A1 the title was transferred in favour of S.A.242/1992 11 plaintiffs and on the strength of the title recovery of possession is sought for, defendants can only resist the claim either basing on Section 53A of Transfer of Property Act if it is available or by adverse possession and limitation if such a plea is raised and sustainable. Both the pleas are absent in the written statement.

9.The crucial question then is whether defendants have established the oral agreement for sale. The pleading with regard to the oral agreement for sale was that on 25.2.1969 Govindan agreed to sell the plaint schedule property to the first defendant fixing the value at Rs.56/- per cent and Rs.1000/- was received towards the sale consideration and Govindan promised to execute the sale deed in the name of the first defendant or his son second defendant after receiving the balance consideration and Ext.B1 the original title deed was handed over and put the first defendant in S.A.242/1992 12 possession of the property. There was no case that at the time of oral agreement for sale, first plaintiff Kalliani was present or that she was also a party to the agreement for sale as deposed by DW1. The only case pleaded in the written statement about the oral agreement for sale was that Velayudhan, son of Chathan had intervened. When evidence was let in the oral agreement for sale spoken to by DW1 is different. According to DW1, it was Govindan and his wife the first plaintiff, who agreed to sell the property and put first defendant in possession of the property. The case of an oral agreement wherein the first plaintiff was also a party was not the oral agreement set up in the written statement. Eventhough it was pleaded in the written statement that DW2 Velayudhan was the mediator, when examined as DW1 case of the first defendant was that apart from Velayudhan, Parameswaran and Kochappu were S.A.242/1992 13 also intervened who were examined as Dws.3 and 4. The first appellate court appreciated the evidence of Dws.2 to 4 in the light of the case set up in the written statement and rightly disbelieved the case of oral evidence. The appreciation of evidence which was proper cannot be interfered in exercise of the powers of this court under section 100 of the Code of Civil Procedure. Even if the evidence of Dws. 1 to 4 are reappreciated, the finding on the question of oral agreement for sale cannot be different from what was arrived at by the first appellate court. First appellate court rightly found that there was no agreement for sale as claimed by the appellants. The trump-card of the appellants was that the custody of Ext.B1, the original title deed. True, plaintiffs did not explain how defendants came into custody of Ext.B1. But by the production of Ext.B1 alone, we cannot come to a conclusion that there was an oral S.A.242/1992 14 agreement for sale as claimed by the defendants. If that be so, the plaintiffs are entitled to get a decree for recovery of possession on the strength of tile, unless the defendants are protected by any statute or adverse possession. There was no plea of adverse possession. As there is no written agreement, even according to the defendants, they cannot claim protection under section 53A of Transfer of Property Act. In such circumstance, first appellate court rightly granted a decree for recovery of possession.

10. When the plaint schedule property admittedly originally belonged to Govindan and Govindan had executed Ext.A1 settlement deed in favour of the plaintiffs and execution of Ext.A1 settlement deed was not disputed, the fact that the original of Ext.A1 was not produced will not disentitle the plaintiffs to get a decree for recovery of possession on the strength of title. S.A.242/1992 15 When plaintiffs have established their title and defendants have no right to continue in possession of the property, plaintiffs are entitled to the decree sought for. The custody of Ext.B1 the anterior title deed by itself will not establish any right on the defendants to continue in possession of the property and it will not prevent the plaintiffs from getting a decree for recovery of possession on the strength of title. The substantial questions of law are answered thus. As there is no merit in the Second Appeal, it is dismissed. M.SASIDHARAN NAMBIAR

JUDGE

tpl/-

M.SASIDHARAN NAMBIAR, J.

S.A..NO.242 /92

JUDGMENT

18TH JUNE,2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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