P.A. PAULOSE S/O AUGUSTHY vs KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** ## **THURSDAY, THE 15TH DAY OF MARCH 2012/25TH PHALGUNA 1933** ## **RSA.No. 309 of 2012 ()** **-------------------------------AS.57/2008 of I ADDL.SUB COURT,ERNAKULAM OS.451/1997 of MUNSIFF COURT,MUVATTUPUZHA** **..........** ## **APPELLANT(S)/APPELLANT/PLAINTIFF: ---------------------------------------------------------** ## **P.A.PAULOSE S/O.AUGUSTHY, PERUMATTATHIL HOUSE, EDAYAR KARA KOOHATTUKULAM VILLAGE.** ## **BY ADVS.SRI.K.P.SREEKUMAR SRI.V.B.HARI NARAYANAN** ## **RESPONDENT(S)/RESPONDENTS/DEFENDANTS:** **-----------------------------------------------------------------------** **1. KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. THIRUVANANTHAPURAM** **REPRESENTED BY ITS SECRETARY-695 001.** **2. MANAGING DIRECTOR** - **KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. SANTHI NAGAR, THIRUVANANTHAPURAM.695 001.** **3. ESTATE MANAGER** **KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. MUDICAL INDUSTRIES ESTATE, MUDICAL PERUMBAVOOR-683 542.** **4. EMMANUEL SARO PROPRIETOR, WHITEFIELD MINERALS MINI INDUSTRIAL ESTATE, PIRAVOM.686 664.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.309 of 2012 ==================================== Dated this the 15[th] day of March, 2012** ## **J U D G M E N T** This Second Appeal arises from the judgment and decree of learned Munsiff, Muvattupuzha in O.S. No.451 of 1997 declining the prayer of appellant for declaration of title and possession of the suit property - 19 cents and the structures thereon. Learned Sub Judge, Ernakulam refused to interfere with the decision of the trial court and dismissed the appeal – A.S. No.57 of 2008. Hence this Second Appeal urging the substantial questions of law raised in the memorandum of appeal. 2. According to the appellant, he got possession of the suit property and the shed therein on 26.07.1976 and later got title of the property as per Ext.A10, sale deed dated 17.03.1997 executed by C.M. George. He stated that he was conducting an industrial unit in the shed in the suit property having a plinth area of 600 sq.ft. He requested respondents 1 and 2 to increase the area of the shed to 2400 sq.ft. He paid the entire hire purchase amount. Fourth respondent is in possession of the shed situated on the southern side of suit property. Appellant wanted to **R.S.A. No.309 of 2012** -: 2 :- construct a tank in the suit property for industrial purpose which 3[rd] respondent objected. Hence the suit for declaration of title and possession. 3. Respondents 2 and 3, the Managing Director and Estate Manager of the State Small Industrial Development Corporation contended that appellant has no title or possession of the suit property and that one acre in Sy.No.727/1/1 (including the suit property) was transferred to the 2[nd] respondent by 9 persons including C.M. George as per Ext.B2, gift deed dated 12.03.1977. Second respondent constructed shed and other structures in the one acre covered by Ext.B2. It is also contended that the shed referred to in the plaint schedule with 600 sq.ft. was allotted to the appellant for use as per Ext.B1, agreement dated 30.09.1985. According to respondents 2 and 3, appellant has possession of only that area. 4. Trial court negatived the claim of title and possession pleaded by the appellant, held that property including the suit property was gifted to the 2[nd] respondent as per Ext.B2, gift deed dated 12.03.1977 and dismissed the suit. That was confirmed by the first appellate court. 5. It is contended by the learned counsel that courts below were under the impression that appellant got possession of **R.S.A. No.309 of 2012** ## -: 3 :- the shed only as per Ext.B1 dated 30.09.1985 while evidence would show that from 1976 onwards appellant was in possession of the suit property – 19 cents and the structures therein. It is contended that though assignor of the appellant and others executed Ext.B2, gift deed dated 12.03.1977 in favour of the 2[nd] respondent, there is no evidence to show that the said gift was accepted and acted upon by the 2[nd] respondent. It is pointed out that since the suit property was in the possession of the appellant from 26.07.1976 onwards, there was no question of C.M. George and others putting the 2[nd] respondent in possession of the suit property as per Ext.B2, gift deed dated 12.03.1977. It is contended that Ext.A1 would show that in the Thandaper account appellant is shown as the owner of the property. According to the learned counsel, courts below have proceeded as if Ext.A10, sale deed is a bogus document. Reliance is placed on the decisions in **Mathu v. Cherchi** (1990[1] KLJ 265) and **Madhavi Amma v. Karunakaran Nair** (2011[1] KLT SN 89 [Case No.122) to contend that registration of the document is solemn act performed by the authority concerned in accordance with the provisions of the Registration Act and in the circumstances finding of the courts below that the sale deed is a bogus document cannot be accepted. It is further contended that ## **R.S.A. No.309 of 2012** ## -: 4 :- to prove that Ext.B2, gift deed was accepted and acted upon by the 2[nd] respondent, no evidence is adduced and none of the respondents have entered box to give evidence. According to the learned counsel, failure of respondents to mount the witness box and and give evidence should draw adverse inference as regards the case of acceptance of Ext.B2, gift deed. Reliance is placed on the decision in **Man Kaur v. Hartar Singh Sangha** ([2010] 10 SCC 512). 6. I have been given copy of the relevant documents by the learned counsel for perusal. Exhibit A4 is the recommendation dated 16.05.1984 made on behalf of General Manager of the 1[st] respondent to the 2[nd] respondent. There, it is stated that appellant was selected as an entrepreneur of the mini industrial estate for starting a small scale industrial and that “ one shed of 600 sq.ft was allotted to him on 01.11.1976. After prolonged efforts the entrepreneur was compelled to drop the scheme due to technical reasons. Later he changed his project into manufacture of sodium silicate. As per the project report area required is 2400 sq.ft. In the circumstances the General Manager recommended to the 2[nd] respondent that the application of appellant for allotment of additional space of 2400 sq.ft may be considered favourably subject to the rules for allotment of ## **R.S.A. No.309 of 2012** ## -: 5 :- additional space in the mini industrial estate. 7. No doubt in Ext.A4 it is stated that the shed having a plinth area of 600 sq.ft 'was allotted' to the appellant on 01.11.1977 and Ext.A2 receipt dated 07.10.1976 (in the appendix the date is mentioned as 07.10.1996, which according to the learned counsel is a mistake) shows that appellant paid Rs.2,000/- which according to the appellant is the initial deposit for construction of building. Going through Ext.A4, I am unable to say that appellant was in 'possession' of the suit property or even the shed having a plinth area of 600 sq.ft since what is stated in Ext.A4 is only that the said shed was “allotted” to the appellant. That is only a permissive occupation of the shed as per allotment subject to the terms and conditions of allotment. Exhibit A4 does not also indicate that appellant was in possession or even occupation of the suit property – 19 cents. 8. It is not disputed by the appellant also that 9 persons including his assignor, C.M. George executed Ext.B2, gift deed in favour of the 2[nd] respondent on 12.03.1977. In Ext.B2, the donors including C.M. George stated that the property referred therein - as one acre (which includes the disputed 19 cents as well) is gifted to the 2[nd] respondent for industrial purpose and that donors who are in possession of the property have ## **R.S.A. No.309 of 2012** ## -: 6 :- authorised the 2[nd] respondent to possess and enjoy the property, effecting mutation and paying revenue. Exhibit B2 indicates that possession of the suit property (which includes the one acre referred to in Ext.B2) was not given to the appellant and that it remained in the possession of the donors. 9. Then comes Ext.A10, sale deed executed by C.M. George in favour of the appellant on 17.03.1977 concerning the suit property – 19 cents which admittedly take part of the one acre referred to in Ext.B2. 10. May be, there was due execution and registration of Ext.A10, sale deed by C.M. George in favour of appellant. But the question is whether appellant got title and possession of the suit property as per that document. If Ext.B2, gift deed was accepted and acted upon by the 2[nd] respondent, C.M. George had no title or possession of the suit property to be conveyed to the appellant as per Ext.A10. 11. Next question is whether finding of the first appellate court that 2[nd] respondent has accepted and acted upon Ext.B2, Gift deed is correct and involves any substantial question of law. True, none of the contesting respondents mounted the witness box to give evidence. But I must notice whether or not an adverse inference has to be drawn for failure of a party to ## **R.S.A. No.309 of 2012** ## -: 7 :- mount the witness box depends on the facts and circumstance of each case. There could be no straight jacketted rule in that regard. If the case of respondents is proved by the evidence on record, their failure to mount the witness box cannot affect adverse inference. 12. So far as a gift which is not onerous is concerned, settled position of law informs me that only slight evidence is sufficient to prove its acceptance. In appropriate cases even the recital in the document is sufficient to prove its acceptance. Exhibit B2 is not an onerous gift. Exhibit B2 shows that the donors including the assignor of appellant conveyed their right, title, interest and possession in the property to the 2[nd] respondent. That recital itself is sufficient to show that the donors divested themselves of all their right in the one acre. 13. There are other indications even from the evidence let in by the appellant to show that Ext.B2, gift deed was accepted and acted upon by the 2[nd] respondent. Exhibit A4, is the letter dated 16.05.1984 wherein the General Manager of 1[st] respondent recommended to the 2[nd] respondent to allot 2400 sq.ft area to the appellant. If the 2[nd] respondent had no right over the said area and appellant got title and possession as per Ext.A10, there was no necessity for the appellant to request the ## **R.S.A. No.309 of 2012** -: 8 :- 2[nd] respondent to allot more area for his purpose. Thus the request made by the appellant as per application dated 04.05.1984 (referred to in Ext.A4) is by itself an indication that the area which was required by way of additional land belonged to and was in the possession of the 2[nd] respondent. The same is the effect produced by Ex.B1, assignment deed dated 30.09.1985 executed between the appellant and 2[nd] respondent. Appellant was reconigsing the right of 2[nd] respondent in the property stated therein. 14. Exhibit A1, receipt for payment of revenue will not advance the case of appellant for two reasons. Firstly, it is dated 07.05.1997 (i.e. after Ext.A10, sale deed dated 17.03.1997) and hence the revenue authorities on the basis of Ext.A10, issued that receipt. Secondly, revenue records cannot be taken as documents of title though in appropriate cases it may be used as evidence of title. I must also bear in mind that revenue authorities are not concerned with the issue regarding title but only regarding collection of revenue. Therefore that in Ext.A1, appellant is shown as owner of the suit property is of no use. Exhibit A2 as aforesaid only shows that on 07.10.1976 appellant made an initial deposit of Rs.2000/- for construction of the building. **R.S.A. No.309 of 2012** -: 9 :- 15. In the light of what I have stated above, claim of appellant that he is the title holder in possession of the suit property pursuant to Ext.A10 was rightly negatived by the courts below and that does not involve any substantial question of law. 16. Appellant has an apprehension that even the right which he has under the allotment has been negatived by the first appellant court. But on going through the judgment of the first appellate court I do not find any basis for that apprehension. In paragraph 13 of its judgment first appellate court has stated that evidence of appellant as P.W1 would show that he attempted to construct a tank in the suit property after cutting down some trees standing thereon and in the light of Ext.B1, appellant has no right to do so. First appellate court proceeded to say that appellant has only a right to occupy the room as per Ext.B3, agreement. In other words, whatever right appellant has as per Ext.B3, agreement concerning the room referred to therein is guaranteed by the first appellate court. In that circumstance there is no reason why appellant should be apprehensive of his right as per Ext.B1, agreement. 17. Having heard learned counsel and gone through the judgments under challenge and the relevant documents I do not find any substantial question of law requiring admission of this ## **R.S.A. No.309 of 2012** -: 10 :- appeal. Second Appeal is dismissed. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** Vsv