K Chandran and others v. Subhadra and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 31[ST] DAY OF OCTOBER 2022 / 9TH KARTHIKA, 1944 RSA NO. 399 OF 2022** **AGAINST THE JUDGMENT AND DECREE IN AS 41/2019 DATED 22.01.2022 OF III ADDITIONAL DISTRICT COURT, PALAKKAD AND THE JUDGMENT AND DECREE DATED 21.12.2018 IN OS 249/2014 OF MUNSIFF COURT, ALATHUR, PALAKKAD DISTRICT** ## **APPELLANTS/PLAINTIFFS:** 1 K CHANDRAN AGED 62 YEARS S/O.LATE KUTTIRAMAN,CHITTAM HOUSE THENKURUSSI AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT- 678671. 2 JEEVAJYOTHI, AGED 53 YEARS W/O.LATE KESAVAN, CHITTAM HOUSE, THENKURUSSI AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT-678671. 3 JISHA, AGED 31 YEARS D/O.LATE KESAVAN, THENKURUSSI AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT-678671. 4 JIJIN, AGED 25 YEARS S/O.LATE KESAVAN, THENKURUSSI AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT-678671. BY ADVS. GIRIJA K GOPAL T.JAGAL BOSE K.N.VIGY ## **RESPONDENTS/SUPPLENTAL DEFENDANTS 2 TO 4:** 1 SUBHADRA AGED 49 YEARS, W/O.LATE SADANANDAN, PLAKKAL HOUSE, MARUVAPPADAM, KANNADI AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT -678701. 2 R.S.A.No.399/2022 2 AKHIL, AGED 28 YEARS S/O.LATE SADANANDAN, PLAKKAL HOUSE, MARUVAPPADAM, KANNADI AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT -678701. 3 AKHILA, AGED 25 YEARS D/O.LATE SADANANDAN, PLAKKAL HOUSE, MARUVAPPADAM, KANNADI AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT -678701. BY ADV P.K.MOHANAN(PALAKKAD) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A.No.399/2022 3 ## **M.R.ANITHA, J** ****************** R.S.A.No.399 of 2022 ---------------------------------------------Dated this the 31[st] day of October, 2022 ## **JUDGMENT** This R.S.A has been directed against judgment and decree in A.S.No.41 of 2019 on the file of District Court, Palakkad which in turn arise out of the judgment and decree in O.S.No.249 of 2014 on the file of Munsiff's Court, Alathur. 2. Plaintiffs are the appellants. Defendants are the legal heirs of deceased original defendant. Suit is one for permanent prohibitory injunction. (Parties will hereinafter be referred as per their status before the trial court). Plaint schedule property belong to first plaintiff and husband of second plaintiff late Kesavan. Kesavan died on 10.11.2010 and his legal heirs are plaintiffs 2 to 4. Plaintiffs are in exclusive possession and enjoyment of plaint schedule property and is cultivating the same. First plaintiff and late Kesavan entered into an agreement for sale with the original defendant on 30.05.2008. But the original R.S.A.No.399/2022 4 defendant was not ready and willing to perform his part of the contract and sale deed could not be executed. Later, original defendant filed O.S.No.535/2010 before Sub Court, Palakkad for specific performance of the contract. Suit was dismissed and specific performance was refused and return of advance money was ordered. 3. After the judgment, original defendant is trying to trespass upon the plaint schedule property. Since the plaintiffs are residing away from the plaint schedule property they could not restrain the trespass. On 24.05.2014, defendant tried to trespass upon the property and it was intervened by the plaintiffs and apprehending future trespass, suit has been filed. 4. Defendant filed written statement contending that he was put in possession of the plaint schedule property as per the agreement for sale on 30.05.2008 and thereafter he is in possession and enjoyment of the property. Against the judgment and decree, R.F.A.No.719/2014 was filed before the High Court and that is pending. Since the plaintiffs are not in possession of R.S.A.No.399/2022 5 the property they are not entitled to get the injunction. 5. PWs 1 to 3 examined. Exts.A1 to A9 marked from the side of the plaintiffs. There was no evidence from the side of the defendant. 6. Trial Court found that though the plaintiffs alleged to be in possession of the plaint schedule property, no evidence could be adduced to prove the possession. PW1, during crossexamination admitted that possession has been given to the defendant on the date of Ext.A2 agreement for sale even though it is contended that the suit for specific performance is dismissed and the return of advance money alone was awarded, appeal is pending against that judgment. So, the original defendant cannot seem to have exhausted the remedy in continuing the possession though no title is passed on to him and accordingly the suit was dismissed. Against which appeal was filed and the learned Additional District Judge reiterated the finding that the suit being one for injunction simplicitor and the records show that the first defendant is in possession of the property by virtue of the R.S.A.No.399/2022 6 agreement for sale and he continued to be in possession though the defendants are not entitled for protection of Section 53A of the Transfer of Property Act, 1882 unless they are evicted from the property by due process of law, they cannot be injected from entering into the property. They came into possession by legal means, their entry cannot be said to be trespass as alleged by the plaintiffs. It is also found that though decree for specific performance of the contract was rejected by the trial court and appeal is alleged to be pending, no document is produced regarding the pendency of the appeal. So, all those factors lead the first appellate court to confirm the judgment and decree passed by the trial court. 7. Aggrieved by the concurrent findings by both courts, the plaintiffs approach this Court in this R.S.A. 8. Notice was issued to the respondents. Respondents appeared through P.K.Mohanan. Lower court records were called for and both sides were heard. R.S.A.No.399/2022 7 9. According to the learned counsel for the plaintiffs, courts below went wrong in finding that the defendants are in possession of the plaint schedule property on the basis of Ext.A2 agreement for sale. According to her, specific performance of contract has already been refused by the trial court. Apart from a stray sentence during the evidence of PW1, an old lady, there is no material whatsoever to prove that the predecessor of the defendants are in possession of the plaint schedule property in pursuance of Ext.A2 agreement. It is also her contention that the defendants failed to mount the box and adduce evidence to prove the possession and enjoyment of the plaint schedule property. So, the courts below went wrong in dismissing the suit merely for a wording in Ext.A2 agreement regarding handing over possession and a statement during cross-examination by the plaintiff which is subsequently amended by her by stating that they are in possession and enjoyment of the property and hence the concurrent findings have been entered into on clear misappreciation of evidence. She would also contend that the R.S.A.No.399/2022 8 benefit under Section 53A of part performance cannot be sought in aid by the defendants in a suit for injunction filed by the plaintiffs since the agreement itself is an unregistered document. Section 17(1)(a) of the Registration Act expressly provides that an unregistered document for sale shall have no effect for the purpose of Section 53A of the Transfer of Property Act. 10. Learned counsel for the defendants, on the other hand, would contend that both courts dismissed the suit finding that defendants are in possession of the property. It is a question of fact and hence this Court cannot interfere with the said finding in this second appeal and there is no substantial question of law emerges for consideration, the learned counsel contends. 11. Based on the above, the following substantial question of law has been formulated: _“Whether the judgment and decree passed by the courts below is perverse due to misappreciation of evidence?”_ R.S.A.No.399/2022 9 12. On going through the judgments passed by the trial court as well as the first appellate court, it is clear that admission of PW1 during cross-examination and the wordings in Ext.A2 that possession was handed over to the original defendant on the date of agreement has led the courts below to conclude that the original defendant is in possession of the plaint schedule property. Admittedly, no oral or documentary evidence has been adduced by him to prove his possession of the plaint schedule property. Suit for specific performance of the contract has been refused by the trial court and R.F.A.No.719/2014 filed against the same has been heard simultaneously with this appeal and that also stands dismissed confirming the judgment and decree passed by the trial court. So, the crucial question is whether the recital in Ext.A2 agreement which is an unregistered agreement for sale and statement of PW1 on one occasion during crossexamination that defendants are in possession will disentitle the plaintiffs to get a decree for injunction. R.S.A.No.399/2022 10 13. During the evidence of PW1, when she was asked about Ext.A2 agreement in chief examination, she specifically stated that the possession was not handed over to the defendant as per Ext.A2 agreement on 30.05.2008 and it is also stated that even after the agreement for sale, plaintiffs are in possession and enjoyment of the property. A specific question was put to her that apart from plaint schedule property, another 4 Acres of property has also been sold to the defendants. That has been admitted by her. It is also stated that the terms of agreement with respect to Ext.A2 and that of the 4 Acres were talked together. Then she stated that on the date of Ext.A2 agreement itself, plaint schedule property was given in possession to the original defendant, but in the very next sentence, she stated that, that is the paddy land and apart from that, she has no paddy cultivation and the paddy received from the cultivation is being supplied to private mills and the paddy land is in their possession. So, a stray sentence during cross-examination of PW1 that defendant was given possession on the date of agreement alone, is not sufficient R.S.A.No.399/2022 11 to efface her entire testimony regarding the possession of the property. That is more so because the defendant did not mount the box and states his case on oath and does not offer himself to be cross-examined by the other side. So, the presumption would arise that the case set up by him is not correct. (See **Sardar Gurbakhsh Singh v. Gurdial Singh : AIR 1929 PC 230; Vidhyadhar v. Manikrao and Another : (1999) 3 SCC 573; AIR 1999 SC 1441** ). Ext.A2 is also not a document coming within the purview of Section 92 of the Indian Evidence Act so as to exclude statement for the purpose of subtracting or varying its terms. So the findings of the courts below that the defendant is in possession of the property is due to misappreciation of evidence. 14. With regard to the recital in Ext.A2 that possession was handed over to the defendant on the date of agreement which would have enabled the defendant for getting a decree for specific performance if at all the agreement was an enforceable agreement as well as a registered one. R.S.A.No.399/2022 12 ## 15. Section 17(1)(a) of the Registration Act specifically provides that : _“The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.”_ 16. Section 53A of the Transfer of Property Act, 1982 which deals with part performance also provides that _“Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,_ _and the transferee has. in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,_ R.S.A.No.399/2022 13 _and the transferee has performed or is willing to perform his part of the contract,_ _then, notwithstanding that [***], or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:"_ 17. So, by the Amendment Act, 48 of 2001 which came into force on 24.09.2001, the words “the contract though required to be registered has not been registered” was omitted from the provision. So, by express omission of the words which previously enables a party to seek the benefit of part performance though the contract is not registered has been taken away by Act 48 of 2001. So, once the contract is not registered, after the Amendment, the benefit under Section 53A will not be available to transferee and that is why a corresponding Amendment to the Registration Act has been effected by R.S.A.No.399/2022 14 inserting Section 17(1A) which has already been referred to. So, recital in Ext.A2 regarding giving possession has no legal effect. But the learned Munsiff proceeded on a wrong notion that agreement in this case is prior to Amendment Act, 48 of 2001 and non-registration of the agreement is of no help to the plaintiffs. 18. Learned counsel for the defendants would vehemently contend that the suit has been dismissed by both fact finding courts finding that defendant was in possession of the plaint schedule property in pursuance of Ext.A2 agreement. So, this Court while sitting in second appeal, cannot interfere with the finding of fact regarding possession entered into by both courts. It has already been found that the finding so made by the courts below is based on misappreciation of evidence. But it has to be taken into account that, at that time the decree passed against the defendant refusing specific performance of contract was pending before this Court and the trial court expressly stated that, that judgment is under challenge and the first appellate R.S.A.No.399/2022 15 court found that no document has been produced about the pendency of the appeal. 19. As stated earlier, along with this appeal, R.F.A.No.719/2014 has also been heard and that has been dismissed confirming the findings of the trial court refusing the specific performance of contract. So, once the specific performance of contract is refused and defendants could not bring in any material to prove his actual possession of the plaint schedule property, the refusal of relief of injunction to the plaintiffs would unnecessarily lead to a next litigation of recovery of possession, whether that is necessary in the facts and circumstances, is the crucial question. In this context, learned counsel bring to my notice that during the pendency of the case, the defendants filed I.A.No.1260/2014 seeking permission for cultivation but no order has been passed by trial court and subsequently during the pendency of the appeal I.A.No.1416/2018 was filed. In that also, no order has been passed. So, according to her, no cultivation is being done by the R.S.A.No.399/2022 16 defendants in the plaint schedule property and there is nothing in evidence to prove the defendant's possession over the plaint schedule property. Admittedly, plaint schedule property is a paddy field. It has also come out in evidence that 4 Acres of property belonging to the plaintiffs has already been purchased by the defendants as per an agreement entered into between the parties on the date when Ext.A2 agreement was entered into. Moreover, no evidence whatsoever has been adduced by the defendant to prove his possession either oral or documentary. A sentence in Ext.A2 agreement for sale stating about the handing over of possession of scheduled property which itself is unenforceable since the agreement is not a registered one and further a stray sentence during the evidence of PW1 which she herself varied in subsequent questioning ought not have been relied on by the courts below to deny the relief of injunction to the plaintiffs in a case where specific performance of contract has been refused to the defendant. Absence of any evidence on the part of the defendants to prove possession also has not been R.S.A.No.399/2022 17 weighed properly by the courts below. So, dismissal of the suit by the courts below is due to misappreciation of evidence and hence is perverse which would enable this Court to make interference in this second appeal. (See: **Illoth Valappil Ambunhi (D) By LRs v. Kunhambu Karanavan [2019 SCC OnLine SC 1336; Azgar Barid (D) by LRs and others v. Mazambi @ Prayambi and Others : AIR 2022 SC 1304 : (2022) 5 SCC 334** ). 20. In the result, appeal allowed, the judgment and decree passed by the courts below are reversed and the suit decreed restraining the supplemental defendants from trespassing into the plaint schedule property and committing any waste and disturbing the peaceful possession of the plaint schedule property by the plaintiffs. In the facts and circumstances, parties shall bear their respective costs. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge