Devasia @ Kutty and Sunny v Jose, Mathew and Chacko

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **THURSDAY, THE 7TH DAY OF AUGUST 2014/16TH SRAVANA, 1936** ## **RSA.No. 1268 of 2012 ()** **-----------------------AS.NO. 23/2011 OF SUB COURT, PALA OS.NO. 227/2008 OF MUNSIFF COURT, PALA** **---------------------** ## **APPELLANTS/RESPONDENTS/DEFENDANTS :** **-------------------------------------------------------------------** ## **1. DEVASIA @ KUTTY** - **KULATHARA HOUSE, NEELOOR P.O., NEELOOR KARA KADANADU VILLAGE.** ## **2. SUNNY** - **S/O. KURIAN, KULATHARA HOUSE, NEELOOR P.O. NEELOOR KARA, KADANADU VILLAGE.** **BY ADVS.SRI.S.DILEEP SRI.GEORGEKUTTY MATHEW** ## **RESPONDENTS/APPELLANTS/PLAINTIFFS :** **---------------------------------------------------------------** ## **1. JOSE** **S/O. DEVASSIA, POOVELIL HOUSE, PANATHOOR KARA PANATHADI VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT PANATHOOR P.O., PIN-671532, FROM POOVELIL HOUSE NEELOOR KARA, KADANADU VILLAGE KOTTAYAM DISTRICT, PIN-686 651.** ## **2. MATHEW** **S/O.DEVASIA, POOVELIL HOUSE, PANATHOOR KARA PANATHADI VILLAGE, HOSDURG TALUK, KASARGODU DISTRICT FROM POOVELIL HOUSE, NEELOOR KARA, KADANADU VILLAGE KASARGODU, PANATHOOR P.O., PIN-671 532.** ## **3. CHACKO** **S/O. DEVASIA, POOVELIL HOUSE, NEELOOR KARA KADANADU VILLAGE, NEELOOR P.O., KOTTAYAM DISTRICT PIN-686 651.** **R1 TO R3 BY ADVS. SRI.MANUEL KACHIRAMATTAM SMT.MERRY GEORGE** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## **P.BHAVADASAN, J.** **------------------------------------------------Regular Second Appeal No.1268 OF 2012 ------------------------------------------------Dated this the 7[th] day of August, 2014.** ## **J U D G M E N T** This appeal is by the defendants in O.S.No.227/2008 who succeeded before the trial court but suffered a decree at the hands of the lower appellate court for permanent prohibitory injunction. The plaintiffs claimed title to the suit property which is over 7 and odd acres by virtue of Exts.A1 and A2 documents. According to them, the defendants tried to trespass into the suit property and that made them file a suit. 2. The defendants resisted the suit by pointing out that even though the property was acquired by the plaintiffs 1 and 2, there was an oral agreement for sale in the year 1994 whereby the plaintiffs 1 and 2 agreed to sell the entire property for a total consideration of Rs.1,20,000/-. The last instalment of Rs.20,000/- was paid and thereafter the defendants demanded the plaintiffs to execute sale deed in their favour. It was at that **R.S.A No.1268/2012** **2** point of time it was revealed to the defendants that the property was mortgaged with Neeloor Service Co-operative Bank and unless the debt is cleared, they will not be able to execute the deed. While so, according to the defendants, the Bank proceeded against the defendants and they paid the dues of the loan availed of by the plaintiffs and got the original documents released to them. They, therefore, contended that from 1994 onwards, in pursuance to the oral agreement, they have been in absolute possession and enjoyment of the property and the plaintiffs had no possession as on the date of the suit. On the basis of these contentions, they prayed for dismissal of the suit. 3. On the basis of the above pleadings, issues were raised. The evidence consists of the testimony of PWs 1 and 2 and the documents marked as Exts.A1 to A6 from the side of the plaintiffs. The defendants had DWs 1 to 4 examined and Exts.B1 to B19 marked. Ext.C1 is the commission report. 4. The trial court, on appreciation of evidence, came to the conclusion that the plaintiffs had no idea about the lie of the **R.S.A No.1268/2012** **3** property and there are sufficient evidence to show that they were not in possession of the property as on the date of the suit. Accordingly, the suit was dismissed. The defeated plaintiffs carried the matter in appeal as A.S.No.23/2011. The lower appellate court on the principle that possession follows title and also on the presumption that the defendants were claiming title over the suit property on the basis of oral sale went on to hold that the defendants had no manner of right over the suit property and reversed the finding of the trial court and decreed the suit as prayed for. 5. At the time of admission of R.S.A, the following substantial questions of law were raised for consideration. 1. Is the lower appellate court justified in reversing the finding of the trial court without valid reasons? 2. Whether the reasoning adopted by the lower appellate court to reverse the finding of the trial court is grossly erroneous? **R.S.A No.1268/2012** **4** 6. Sri.Dileep, learned counsel appearing for the appellants contended that the lower appellate court has misdirected itself both on facts and in law and the lower appellate court was under the false impression that the defendants had claimed title to the suit property by means of oral sale. At no point of time, according to the learned counsel, the contesting defendants had a case that they were in possession of the property in pursuance to the oral sale. Their case, according to the learned counsel, was that there was an oral agreement for sale and in pursuance to that, entire sale consideration had been paid and further in pursuance to the said oral agreement, they were put in possession of the property. Learned counsel relied on the evidence in the case to the effect that the original of the documents namely, Exts.A1 and A2 were produced by the defendants in the suit and so also the receipts for having discharged the loan availed in the name of the plaintiffs were produced by the defendants. It was also pointed out by the learned counsel that even though in the plaint it was stated that **R.S.A No.1268/2012** **5** the properties owned by plaintiffs 1 and 2 are lying contiguous, it is belied by Exts.A1, A2 and B2 documents which would show that in between the properties of the plaintiffs, there were property owned by the 3[rd] plaintiff. Learned counsel went on to point out that being a suit for injunction, the only question that needs to be considered is as to who was in actual possession of the property as on the date of the suit and the question of title was totally irrelevant. 7. In support of his contentions, learned counsel appearing for the appellants relied on the decision in _**Dharmarajan and others** vs._ _**Valliammal and others**_ ((2008) 2 Supreme Court Cases 741). Learned counsel went on to contend that the plaintiffs had no explanation as to how the original of the title deed relating to the plaint schedule property came into the possession of the defendants and also how the receipts for having paid the amount of the loan availed of by the plaintiffs came to be in possession of the defendants. It was also contended that it was the defendants who had produced the original of documents **R.S.A No.1268/2012** **6** of title of the property belonging to the 3[rd] plaintiff for which also the plaintiffs had not given any valid explanation. The lower appellate court had grievously erred in decreeing the suit based on the presumption that the defendants were claiming title to the suit property and the consequent possession thereon. According to the learned counsel, the lower appellate court had not understood the case pleaded and proved by the defendants and that has resulted in a wrong decree being passed. 8. Learned counsel appearing for the respondents, on the other hand, pointed out that the lower appellate court has considered the evidence in considerable detail and had come to the conclusion that the possession is with the plaintiffs. The mere fact that the defendants have produced the original of documents of title of the property belonging to the plaintiffs is not a ground to hold that they are in possession of the property. It is pointed out that when the plaintiffs went to the Bank in 1998 to enquire about the loan, they came to know that the documents have already been released to the defendants. It was further **R.S.A No.1268/2012** **7** contended that if, as a matter of fact, as claimed by the defendants, they had discharged the loan and had obtained the original of the title deed in 1998, nothing prevented the contesting defendants from proceeding against the plaintiffs in law to get the document of title executed in their favour. In the absence of such an action being taken, according to the learned counsel, it can be presumed that the case put forward by the appellants is false. Learned counsel placed reliance on Exts.A3 and A4 to prove that land tax has been paid by them. Accordingly, it is contended that there is no ground to interfere with the judgment and decree of the lower appellate court and the appeal is only to be dismissed. 9. In the decision relied on by the learned counsel for the appellants, it has been categorically held that in a suit for injunction, the only question is as to who is in actual physical possession of the property as on the date of the suit. If the plaintiffs are unable to establish the said fact, the suit will have to necessarily fail. Keeping in view this principle, an attempt **R.S.A No.1268/2012** **8** shall now be made to decide whether the lower appellate court is justified in its approach. 10. The trial court has found that, going by Ext.B2 which is the title document of the 3[rd] plaintiff, it is clear that his property was sandwiched between the property of the plaintiffs or in other words, property in the middle portion of the properties of plaintiffs belonged to the 3[rd] plaintiff and the properties of the plaintiffs 1 and 2 were on the northern and southern side of the property owned by the 3[rd] plaintiff. This was taken aid of by the trial court to hold that the plaintiffs had no idea about the lie of the property. It has also referred to two old documents of title whereby the adjacent properties were sold, to come to the conclusion that the lie of the property as spoken to by PW1 is not correct. More important thing is that the trial court has found that there was no explanation offered as to how the original document of title namely, Exts.B5 and B6 and also Ext.B2 came into the possession of the defendants. Exts.B5 and B6 corresponds to Exts.A1 and A2. Ext.B2 is the document of title of **R.S.A No.1268/2012** **9** the 3[rd] plaintiff. 11. It must be noticed here that the defendants have no case that the 3[rd] plaintiff was a party to the oral agreement or that he had agreed to sell his property to the defendants. Still, it is significant to notice that the original document of title of the property belonging to the 3[rd] plaintiff is also in the possession of the defendants. The trial court also found that the receipts for having paid the amount due on the loan said to have been availed of by the plaintiffs were in the possession of the defendants. No explanation was offered by the plaintiffs in respect of that also. These were the facts which persuaded the trial court to hold in favour of the defendants. The lower appellate court, as rightly pointed out by the learned counsel for the appellants, proceeded on the presumption that the claim of the defendants is based on oral sale of the property in pursuance to which they claimed to be in possession. Obviously, it is not so. 12. The defendants have no case that they are in possession of the plaint schedule property in pursuance to an oral **R.S.A No.1268/2012** **10** sale in their favour. Their case, on the other hand, is that there was an oral agreement for sale in pursuance to which they were put in possession and that they have paid the entire sale consideration i.e. Rs.1,20,000/-. Their further case is that when they demanded execution of sale deed, they were informed that the properties were mortgaged to Neeloor Service Co-operative Bank and unless that debt is discharged, they will not be able to execute the document of title. The defendants have adduced evidence to show that further payments were made by them and they obtained receipts for making payments in respect of the debt due from the plaintiffs. These are evidenced by Exts.B7 to B10. They have also produced tax receipts to show that they have paid land tax. What is more significant is that they have produced Exts.B5 and B6 which are original sale deeds of the property which belonged to the plaintiffs 1 and 2, the certified copy of sale deeds which are Exts.A1 and A2. The defendants have claimed that these documents were released to them by the Bank when the debt was discharged. **R.S.A No.1268/2012** **11** 13. It is contended on behalf of the respondents that normally, if the claim of the defendants is found true, there would have been a release deed executed by the Bank and there is no such deed executed. Their further case was that the documents of title were fraudulently obtained by the defendants from the Bank. 14. Except saying so, there is absolutely no evidence in that regard. If, as a matter of fact, the documents were fraudulently obtained, there would have been some steps taken by the plaintiffs against the Bank for having fraudulently released the documents to the defendants. Apart from the said fact, they have offered no explanation as to how the receipts for the amount paid for the loan came into the hands of the defendants. It is true that the payments have been effected in the name of the plaintiffs. That can only be so because the loan was availed of by the plaintiffs. The plaintiffs do not appear to have a case that they have discharged the loan and they have claimed document of title from the Bank. **R.S.A No.1268/2012** **12** 15. PW1 has attempted to offer an explanation for the possession of Ext.B2 title deed by the defendants. He points out that the 1[st] defendant obtained the document of title of the 3[rd] plaintiff representing that it is necessary for making certain changes in the revenue records. Obviously, the best person to speak about the said claim is the 3[rd] plaintiff who has not been examined at all. It is also significant to notice that even, according to the plaintiffs, 3[rd] plaintiff was entrusted with the management of the property and he was managing the property. Still the plaintiffs did not feel it necessary to examine him. 16. The question is as to who is in possession of the property as on the date of the suit. The lower appellate court does not appear to be justified in drawing a presumption that the possession follows title. That principle is usually adopted in cases where it is not independently possible to prove possession due to the nature of the property or due to the extent of the property available for determination of the issue. In cases where there is larger extent of property and where can be evidence of **R.S.A No.1268/2012** **13** independent possession, the principle cannot be invoked and in the case on hand, it more so because the defendants do not claim title to the suit property at all. They only claim possession in pursuance to an oral agreement for sale. 17. Learned counsel appearing for the appellants seems to be fully justified in the submission that the lower appellate court has not correctly understood the pleadings in the case and the case set up by the defendants. As rightly pointed out by the learned counsel for the appellants, it is not a case of defendants claiming possession on the basis of oral assignment deed but one based on oral agreement for sale and also on the basis of proof of having discharged the loan that was availed of by the plaintiffs. 18. One must remember that the lower appellate court is the final authority of fact and the said court was bound to re-appreciate the evidence and consider the matter independently. Unfortunately, the lower appellate court has proceeded on the premises that the defendants claim title to the suit property. **R.S.A No.1268/2012** **14** 19. It is felt that in the above circumstances, a re-determination of the issue at the hands of the lower appellate court is absolutely necessary in the interest of justice and it is only appropriate to send back the matter to the lower appellate court for fresh consideration. For the above reasons, this appeal is allowed. The judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court to determine the issues afresh in accordance with law and in the light of what has been stated above. The parties shall appear before the lower appellate court on 28.08.2014. The lower appellate court may make every endeavour to dispose of the appeal as expeditiously as possible, at any rate, within a period of three months from the date of appearance of the parties. Registry is directed to send back the records to the lower appellate court forthwith. There will be no order as to costs. ## **P.BHAVADASAN JUDGE** smp