Nirmala and N.K. Babu v. Rameshan and Rema

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 11TH DAY OF JULY 2014/20TH ASHADHA, 1936** ## **RSA.No. 1418 of 2012 ()** **-----------------------AS. NO.107/2009 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM. OS. NO.491/2007 OF I ADDITIONAL SUB COURT, ERNAKULAM.** **........** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** **-------------------------------------------------------------** **1. NIRMALA, W/O.N.K. BABU, AGED 41 YEARS, ALINKAL PARAMBIL HOUSE, HOUSE NO.2432, KALOOR, COCHIN-17, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **2. N.K. BABU, S/O.KRISHNAN, AGED 47 YEARS, ALINKAL PARAMBIL HOUSE, HOUSE NO.2432, KALOOR, COCHIN-17, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.A.X.VARGHESE, SRI.A.V.JOJO.** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **----------------------------------------------------------------------** **1. RAMESHAN, S/O. KRISHNAN, AGED 40 YEARS, ALINKAL PARAMBIL HOUSE, HOUSE NO.2432, KALOOR, COCHIN-17, KANAYANNUR TALUK, ERNAKULAM DISTRICT- 682 017.** **2. REMA, W/O. RAMESHAN, , AGED 28 YEARS, ALINKAL PARAMBIL HOUSE, HOUSE NO.2432, KALOOR, COCHIN-17, KANAYANNUR TALUK, ERNAKULAM DISTRICT- 682 017.** **BY ADV. SRI.P.BABU KUMAR.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 1418 of 2012 - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of July, 2014. ## **JUDGMENT** Two suits, namely O.S. 491 of 2007 which was a suit for cancellation of Ext.A5 which is alleged to be a fraudulent document said to have been executed by the first defendant in favour of the second defendant and O.S. 460 of 2008 which was a suit for cancellation of Ext.A2 document which is alleged to have been executed by the second plaintiff in favour of the first plaintiff in O.S.491 of 2007 were jointly tried and disposed of by a common judgment. Both the suits were decreed. However, the prayer for injunction made in O.S.491 of 2007 was declined. In appeal, the appellate court declined to interfere with the judgment and decree of the trial court. R.S.A. 1418 of 2012 is against the judgment and decree in O.S. 491 of 2007. Since that alone survives for consideration, the parties and facts are referred to as they are available in the said suit. RSA.1418/2012. 2 2. The plaintiffs in O.S.491 of 2007 are a couple. The first defendant is the brother of the second plaintiff and the second defendant is the wife of the first defendant. 3. The father of the second plaintiff and the first defendant died in 1980 without leaving any estate. At the relevant time the first defendant was studying in the 5[th] standard and the second plaintiff who was the elder brother and the eldest member in the family had purchased three cents of property in Karnakodom by document dated 12.7.1987 for a sum of Rs.3,000/-. On 4.8.1988 the second plaintiff married the first plaintiff. According to the plaintiffs, on 25.1.1993 as per Ext.A1, the second plaintiff purchased 4 cents at Kaloor for a consideration of Rs.45,000/-. It was averred that Rs.20,000/- was contributed by the brother of the first plaintiff. The condition was that Rs.20,000/- would be returned when the 3 cents of property at Karnakodom could be sold. RSA.1418/2012. 3 4. The first defendant, according to the plaintiffs, after marriage shifted his residence to house No.19 of Karithala Colony. The plaintiffs would say that on 17.10.2002 the defendants came to the house of the plaintiffs and sought permission to reside therein for a short while due to the renovation work in their house at Karithala. They were permitted to do so. However, they did not leave the premises and the second plaintiff happened to see an assessment notice issued from the Corporation of Cochin to the second defendant in respect of the building in the plaint schedule property. On enquiry, the second plaintiff came to know that the document Ext.A5 has been fraudulently executed by the first defendant as if the second plaintiff had assigned the property in favour of the second defendant. In fact the tax and all other dues in respect of the plaint schedule property and building had been paid by the second plaintiff. Since the RSA.1418/2012. 4 defendants refused to vacate the building inspite of demands made by the plaintiffs, the suit was laid for cancellation of the document and for injunction. 5. The defendants resisted the suit. They feigned ignorance about Ext.A5 document. It was contended that the property at Karnakodom and the plaint schedule property were purchased with the joint funds of the second plaintiff in O.S.491 of 2007 and the first defendant therein and their mother. The property happened to be purchased in the name of the second plaintiff since he was the eldest male member of the family. Eversince the purchase, the members of the family have been residing together. Till the marriage of the first defendant, everything went well. Disputes arose soon thereafter which resulted in a police complaint and a compromise was reached at the North Police Station, Ernakulam wherein it was agreed that the property at Karnakodom would be deemed to be one belonging to the first RSA.1418/2012. 5 defendant and the property at Kaloor as that of the second plaintiff. These terms were recorded in the General Diary. However, soon thereafter, the second plaintiff complained about police harassment and sold the property at Karnakondom for Rs.1,80,000/- and deposited the amount in the name of the first plaintiff. They also disputed the claim of the second plaintiff that the plaint schedule property was purchased for Rs.45,000/-. In fact, according to them, the sale consideration was Rs.80,000/- and funds were contributed by the mother and the first defendant as well. They disputed that they were residing in the property as a result of the permission granted by the plaintiffs. According to them, they were residing as a matter of right since they had contributed money for the purchase. They therefore prayed for a dismissal of the suit. 6. Since the facts in O.S. 460 of 2008 are not necessary for the disposal of this appeal, they are not being RSA.1418/2012. 6 referred to. Issues were raised in both the suits and the parties went to trial. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts.A1 to A6 from the side of the plaintiffs. The defendants had D.Ws.1 and 2 examined and had Exts.B1 to B7 marked. Both the courts below found that both the documents Exts. A2 and A5 assailed in the respective suits are null and void. It was also found that the plaint schedule property was purchased with the joint contribution of the members of the family, namely, the second plaintiff, first defendant and their mother, and each of them had a right to reside in the building and therefore O.S.491 of 2007 was dismissed. 7. Since the parties have entered appearance on issuance of notice before admission, it is felt that the matter could be disposed of on merits before admission after calling for the records and perusing the same. Accordingly, it was so done. RSA.1418/2012. 7 8. Learned counsel appearing for the appellants contended that the courts below had erred both on facts and in law in dismissing O.S.491 of 2007. It was pointed out by the learned counsel that if as a matter of fact funds were contributed by all the members of the family, there was no hindrance in purchasing it in the joint names and it was not necessary for the second plaintiff in O.S. 491 of 2007 to purchase the property in his own name. Referring to the evidence of D.W.1, the mother, it was pointed out that she has no case that she had contributed any fund for the purchase of the property. Learned counsel also relied on the decision reported in Maria Margarida Sequeira Fernandez v. Erasmo Jack De Sequeira ((2012) 5 SCC 370) and contended for the position that as long as the title holder of the suit property is the second plaintiff in O.S.491 of 2007, the burden is on the defendants to show that they have acquired a right to reside in RSA.1418/2012. 8 the property. Learned counsel went on to point out that the courts below have dismissed the suit based on conjectures and surmises and not based on the evidence adduced in the case. Accordingly, it is contended that the injunction sought for in O.S.491 of 2007 ought to have been granted. 9. After having heard counsel for the appellants, and having perused the records and the decision relied on by the learned counsel for the appellants, this Court finds little merit in the contention raised by the learned counsel for the appellants. Both the courts below came to the conclusion that the properties were purchased with the joint contribution of the members of the family and the second plaintiff alone could not take credit of the purchase of the properties. It was found by the courts below that the first defendant had started earning from a very young age and in all probability, he too would have contributed for the purchase of the property. There is nothing to show that the fund was contributed by the RSA.1418/2012. 9 second plaintiff's brother-in-law for purchase of the property. The courts below were of the opinion that the said story of borrowal would indicate that the second plaintiff did not have sufficient funds to purchase the property and he had to seek contribution. In the absence of any evidence to show that the brother-in-law of the second defendant had contributed for the said purchase, the courts below came to the conclusion that funds must have been contributed by the mother and the first defendant brother. 10. It is true that when the mother was examined as D.W.1 she in her cross-examination had stated that she had not contributed any amount. But the evidence of D.W.2, the first defendant would show that the property was purchased for much higher amount and substantial contributions were made by him and his mother. 11. It cannot be disputed that the parties have been residing together for a long time. The claim made by the RSA.1418/2012. 10 plaintiffs was that the defendants were residing in the building in the plaint schedule property as a result of the permission granted by the plaintiffs and not as a matter of right. The courts below have noticed that basic tax for the building, electricity charges and water charges have been paid by the first defendant in the suit and there is no payment effected by the second plaintiff for those amenities. 12. When the first defendant was examined as D.W.2, there was no suggestion to him that the claim made by him that he had contributed for the purchase is false and that he had not contributed any amount for the purchase. It is also not suggested to him that he was residing along with the plaintiffs on permission granted by the plaintiffs. 13. In the decision relied on by the learned counsel for the appellants, the sister was the title holder of the property and the brother was allowed to reside in the property. When the sister asked them to vacate the premises, the RSA.1418/2012. 11 brother filed a suit for injunction. The High Court decreed the suit. The Apex Court reversed the judgment of the High Court and held that normally if the title the property is established, the possession or occupation of the property by a person other than the title holder will be presumed to have been under and in subordination to title holder and it will be for that person to show the right under which he occupies the premises. Learned counsel placed considerable reliance on paragraph 97 of the decision, which reads as follows: “97. Principles of law which emerge in this case are crystallized as under:- 1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. 2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. RSA.1418/2012. 12 3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. 4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour. 5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.” 14. One can have no quarrel with the above proposition. But the question is how far the principle applies to the facts of this case. There it was found that the plaintiff was only had the status of a care taker and he had no more rights. In the case on hand, it has been found that there is sufficient material to presume that the first defendant as well as the mother must have contributed funds for the purchase of the property and that the claim made by the plaintiff that RSA.1418/2012. 13 the defendants in the suit were in permissive occupation was not substantiated. One may remember here that in the evidence furnished by P.W.2, the second plaintiff, he would say that he did not have sufficient funds to purchase the property and in fact he borrowed amounts from the brother-in-law for which there is no evidence. It is also not disputed that there was a compromise talk in the police station when the parties fell out though the documents regarding the same had not been produced. Whatever that be, merely because the title to the suit property stands in the name of the second plaintiff, on facts, it cannot be said that the defendants had no manner of right to reside in the property. 15. True, Ext.A5 was found to be an invalid document. It has been found that the claim made by the plaintiffs that the first defendant had not contributed any amount as if he had no right in the property cannot be easily countenanced. The versions given by the mother that the first RSA.1418/2012. 14 defendant had started earning at very young age and all of them were residing together were not specifically disputed by the plaintiff in O.S. 491 of 2007. It is true that the defendants in the said suit have not been able to produce any document to show that they have actually contributed any amount for the purchase. But the circumstances would reveal that the second plaintiff was not so financially sound so as to individually raise funds for the purchase. In the light of the above fact, since the evidence shows that all the members were residing together, and it is only reasonable to presume that the first defendant must have also contributed funds for the purchase of property. 16. For the above reasons, the courts below had declined to grant injunction in favour of the plaintiffs in the suit. It could not be said that the courts below have grossly erred in law or the findings are so perverse or contrary to the evidence on record. It is a possible and probable view. If that RSA.1418/2012. 15 be so, in exercise of jurisdiction under Section 100 of C.P.C., this Court may not be justified in interfering with the judgment and decree. This appeal is without merits and it is accordingly dismissed. P. BHAVADASAN, JUDGE sb.