R.F.As. 308 & 355/2008

R.F.As. 308 & 355/2008 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942** ## **RFA.No.308 OF 2008** **AGAINST THE JUDGMENT IN OS 706/1995 DATED 22-10-2007 OF III ADDITIONAL SUB COURT, ERNAKULAM** ## **APPELLANT/PLAINTIFF:** **VASUDEVA PAI, AGED 60 YEARS, S/O.LATE VAMANA PAI, SOUTH MUNDASSERY HOUSE,, SRTEENIVASA MALLAN ROAD, PADMA THEATER, KOCHI-16.** **BY ADVS. SRI.A.X.VARGHESE SRI.A.V.JOJO** ## **RESPONDENT/DEFENDANT:** **JAIKUMAR PAI, AGED 54 YEARS, G.C.D.A COLONY, VADUTHALA, COCHIN-21.** **R1 BY ADV. SRI.PRAVEEN K. JOY R1 BY ADV. SRI.S.SREEKUMAR SR.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2019, ALONG WITH RFA.355/2008, THE COURT ON 19-05-2020 DELIVERED THE FOLLOWING:** R.F.As. 308 & 355/2008 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942** ## **RFA.No.355 OF 2008** **AGAINST THE JUDGMENT IN OS 175/1996 DATED 22-10-2007 OF III ADDITIONAL SUB COURT, ERNAKULAM** ## **APPELLANT:** **VASUDEVA PAI AGED 60 YEARS S/O. LATE VAMANA PAI, SOUTH MUNDASSRY HOUSE, SREENIVASA MALLAN ROAD, KOCHI-16. 682016** **BY ADVS. SRI.A.X.VARGHESE SRI.A.V.JOJO** ## **RESPONDENT:** **JAYAKUMAR PAI AGED 54 YEARS G.C.D.A COLONY, VADUTHALA, COCHIN 21. 682021** **R1 BY ADV. SRI.S.SREEKUMAR (SR.) R1 BY ADV. SRI.PRAVEEN K. JOY** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2019, ALONG WITH RFA.308/2008, THE COURT ON 19-05-2020 DELIVERED THE FOLLOWING:** R.F.As. 308 & 355/2008 3 ## **JUDGMENT** ## **[ RFA.308/2008, RFA.355/2008 ]** ## **Dated this the 19th day of May 2020** Challenging the common judgment in O.S. Nos. 706 of 1995 and O.S 175 of 1996, the appellant has filed these appeals. As per the impugned judgment and decree dated 22[nd] October, 2007, O.S. No. 706 of 1995, the suit for partition, was dismissed by the learned Additional Sub Judge,Ernakulam and O.S. No. 175 of 1996, suit for recovery of possession and injunction, was decreed. O.S. No. 706 of 1995 was filed by the plaintiff for partition of an extent of 7.114 cents of land and claimed to be the coowner of the entire extent of property. On the other hand, the defendant in O.S. No. 706 of 1995 has filed O.S. No. 175 of 1996 for recovery of possession of the same property of 1.500 cents in extent. The court below had disposed of both the suits treating the suit for partition as the main case. For the sake of convenience the parties are referred to as per their status and ranking in the main case before the trial court . 2. The brief facts required for the disposal of these appeals are as follows: The plaintiff/appellant is the elder brother of the defendant. It is his case that a total extent of 7.114 cents was allotted to the defendant, his brother, in a partition effected in the family. The defendant was having an R.F.As. 308 & 355/2008 4 intention to construct a building in the property, but he was not having sufficient funds to meet the expenses and thus to materialize his desire. So, he approached the plaintiff with a proposal to make construction of the building with co-ownership and joint possession and also agreed to alienate 1.500 cents of land to the plaintiff and thereby sale deed No. 1976/87 was executed for valid consideration. Though the building was constructed with the funds of the plaintiff, the defendant was not willing to allot the share of the plaintiff even after repeated requests. The defendant had even approached the Munsiff Court, Ernakulam by filing O.S. No. 917 of 1993 and obtained an ex-parte injunction order against the plaintiff. But the said order was modified on appearance of the plaintiff before the court below. When the defendant tried to throw out the plaintiff and his family who were occupying a portion of the building, he had approached the court below for partition. 3. The claim was resisted by the defendant/respondent contending that in the family partition, 4.594 cents of land in Sy. No. 615/7 and 2.5 cents of land in Sy. No. 615/4 of Ernakulam Village were allotted to the share of the defendant. He never sold 1.500 cents of land to the plaintiff as alleged. In fact, after partition, the intention of the defendant was to construct a building. When he started construction, he found paucity of funds to proceed with the work. So, he approached the plaintiff, his elder brother, for a loan, for which he agreed on furnishing security. When the defendant accepted the proposal, a document was prepared by the plaintiff at his instance and styled it as a sale deed. It was of course protested by the defendant, but he was made to believe that on repayment, the plaintiff R.F.As. 308 & 355/2008 5 would re-convey the land to him. On believing his words, such a document was executed. But it was never intended to be acted upon. The possession of the property was never parted with the plaintiff and the defendant continued in possession. The allegation that there was an understanding in the agreement to construct a building in the property with equal rights is absolutely false and baseless. The entire construction was effected by the defendant by getting the necessary documents from the authorities. At the beginning of the construction, he was a student, but later he started his practice as a Homoeo practitioner after completing his course and picked up good practice with sufficient income. Except the receipt of Rs.30,000/- as loan from the plaintiff for construction of the building, nothing else was taken by the defendant and he repaid the loan amount by way of installments. The allegation raised by the plaintiff that the installments received by him was sharing of rent received from the rooms rented out after construction, as profits is absolutely false. In fact the plaintiff had insisted for occupation of three rooms as further security till repayment of the loan in full and agreed to vacate on discharge of the loan amount. The defendant though repaid the entire loan amount by way of monthly installments and requested the plaintiff to vacate the rooms occupied by him, he rejected the request and continued there and started to do all sorts of illegal and unauthorized activities in the building and that was the reason for filing of O.S. No. 917 of 1993 before the Munsiff's Court. The plaint schedule property is not liable to be partitioned is the definite case of the defendant in the suit for partition. R.F.As. 308 & 355/2008 6 4. Subsequently, O.S. No. 175 of 1996 was filed by the defendant for injunction and later the plaint was amended and recovery of possession was sought for. In the amended plaint, it was further contended that actually room with Door No. XL/5773 was allowed to be used by the plaintiff and as he was not prepared to vacate the same, his possession could only be treated as illegal in the eye of law and hence recovery is sought for. 5. The plaintiff refuted the allegations raised against him in the suit for recovery of possession by raising the very same contention that is, he is a co-owner entitled for partition and allotment of his separate share. 6. The court below, while treating the partition suit as the main case, examined PWs. 1 and 2 on the side of the plaintiff apart from marking documents as Exts. A1 to A13. On behalf of the defendant, he himself was examined as DW 1 and Dws 2 to 4 were examined and Exts. B1 to B19 were marked. Exts. C1 and C2 were also marked. On a consideration of the entire materials on record, the court below, by the impugned judgment and decree, dismissed the suit for partition without costs and decreed the suit for recovery of possession directing the plaintiff (defendant in O.S. No. 175 of 1996) to surrender vacant possession of Door No. XL/5773 of Corporation of Cochin. 7. Heard Adv. A.V. Jojo, the learned counsel for the appellant/plaintiff and Adv. S. Sreekumar, the learned Senior Counsel appearing for the respondent/defendant. 8. The plaintiff and the defendant are brothers. The plaint schedule property in the main suit, i.e., the partition suit, is the entire 7.114 R.F.As. 308 & 355/2008 7 cents with a two storied concrete building bearing Nos. XL/5770, XL/5771, XL/5772, XL/5773 and XL/5774 in Ernakulam Village. At the outset, it is to be noted that though the entire property is scheduled as C in the partition deed dated 28.4.1986 and set apart to share of the defendant, the plaintiff is claiming right over 1.500 cents of land on the basis of sale deed No. 1976/87 dated 29.4.1987. The original sale deed was produced by the defendant and marked as Ext.B19 and the plaintiff had produced the copy of the same as Ext.A2. Admittedly, 7.114 cents of land was allotted to the share of the defendant including the suit property as C schedule in Ext B1. The pleading is to the effect that out of the said property, the defendant had executed sale deed for 1.500 cents of land as per Ext.B19 on 29.4.1987. But the pleadings in the plaint would show that the plaintiff is claiming half right over the plaint schedule property which includes a two storied building having 5 rooms. 9. The plaintiff as PW 1 had deposed before the court below that after partition of the property, the defendant, though had an intention to construct a building, was not having sufficient funds with him to effect the construction work and so, he approached him with an offer to alienate a portion of the property having an extent of approximately two cents and to construct a building in the entire 7 cents . But he further agreed to alienate 1.500 cents due to the intervention of a builder and construct building including that plot also and thus he agreed to purchase the property having an extent of 1.500 cents for a sum of Rs.8,000/-. The further case of the plaintiff before the court below is that, the defendant agreed to allot the portion of the building being constructed in 1.500 cents to use the same as R.F.As. 308 & 355/2008 8 the owner of the property and thus the building plan (Ext.A1) was prepared by the builder with estimate. Thus the sale deed was executed is the definite case of the plaintiff. As mentioned earlier, at the time of the filing of the written statement itself the defendant had disputed the title of the plaintiff over the disputed extent of 1.500 cents which forms part of 7.114 cents. 10. The Commission Report would give a lucid picture of the plaint schedule property. A two storied building facing towards east is situated in the property and the courtyard of the entire property is roofed with tin sheet. The ground floor consists of three rooms and a staircase room numbered as XL/5776, 5777 and 5778 respectively. There is another room on the north western portion of the building which is numbered as XL/ 5774. In the first floor there is another room, bearing No. 5773 A and another hall with number 5773. 11. The plaintiff contended that the entire construction was made by him by spending his money though the documents stand in the name of the defendant. Ext.B2 building permit and as well Ext.B3 building plan stands in the name of the defendant. Exts.B4 to B9 the property tax assessment list and receipts of property tax also stands in the name of the defendant. Ext.B11 series of electricity bills and receipts; also stand in the name of the defendant. Of-course certain receipts marked as Exts.A4 to A8 were issued in the name of the plaintiff. The plaintiff is relying on those documents in order to substantiate his case that the expenses for the building construction were met by him. Exts. A4 series, A5 and A7 series are certain receipts issued in favor of the plaintiff in the year 1987 and 1990 R.F.As. 308 & 355/2008 9 for purchase of cement and iron etc, it is pertinent to note that the plaintiff admitted that his another brother namely Sadanada Pai had constructed a building in his property lying on the southern side adjacent to the plaint schedule property and the construction work was made by him. Though he pretended ignorance about the year of construction before the court, he did not deny the suggestion of the learned counsel for the defendant that the said construction was in the year 1990. The plaintiff though claimed that in fact he had spent a sum of Rs.2,00,000/- for construction of the building Ext.B2 permit dated 28.1.1987 was valid upto 27.1.1990 and the documents produced by the plaintiff as Exts. A4 series, A5 series, A6 and A7 series as well Ext.A8 series are of the year 1990. Since the permit was valid only upto 27.1.1990, production of bills of subsequent dates will not improve the case of the plaintiff that he had spent an amount of Rs.2,00,000/- for the construction work of the entire building in the plaint schedule property. More over it was admitted by him as PW1 that he was getting only a meager income from his shop and that was only sufficient for his daily requirements that too, to pull on his family. His admission itself would establish the fact that he had no bank balance or surplus income to meet expenses for the construction work of a double storied building. On the other hand, the defendant had admitted of having received Rs.30,000/- from the plaintiff as loan and he had a case that the balance amount was adjusted by him with the financial assistance of his wife as well her family. So, the production of these documents by the plaintiff will not any way establish his case that he had spent the money. Of course, he had produced another receipt, marked as Ext.A9 evidencing return of R.F.As. 308 & 355/2008 10 Rs.25,000/- to his brother Sadananda Pai dated 15.10.1992. The person who had issued the same was not examined as a witness. But, in Ext.A9 it was mentioned that the plaintiff had received from him in total an amount of Rs.25,000/- on various dates during 1989, however he discharged his debt and Ext.B9 receipt was issued for the same. The only conclusion that could be drawn from this evidence is that, he was not having surplus amount with him so as to meet expenses for the construction of a two storied building. Though PW 2, the builder of the property was examined his evidence would only shows that he had drawn the plan for construction. He had also admitted that in Ext.B2 plan the defendant had signed as the land owner of the property and permit was also granted in favour of the defendant as the owner of the entire property. So also, the evidence of DW3 who had effected the wiring works of the building deposed that he had issued Ext.A15 series in favour of the defendant for wiring/electric works performed by him. Therefore, it could be safely concluded that there was no scope for the plaintiff to advance the entire funds required to effect construction of the building . 12. The defendant as DW 1 adduced evidence to the effect that he had full faith on the plaintiff being his brother, and thus he approached him for financial assistance and received a loan of Rs.30,000/- agreeing to the terms dictated by him. According to him, when the plaintiff insisted for security for the loan amount, he agreed for the same as he made him to believe that Ext.B19, sale deed for 1.500 cents was executed only as security for the amount advanced by him. But he never intended to alienate the property and the plaintiff had not paid the amount of Rs.8,000/- R.F.As. 308 & 355/2008 11 mentioned as sale consideration in the document apart from the loan of Rs.30,000/-. In Ext.A2/B19 sale deed dated 29.4.1987, only 1.500 cents of land had been scheduled. The plaintiff had admitted that while executing Ext.B19 the construction of the building on the ground floor reached up to lintel level but, a perusal of the deed would reveal that there was absolutely no reference of any construction in the property. If construction was there which reached up to the lintel level, definitely it would have been mentioned in the document. But it is conspicuously absent in the document. It is contended by the defendant that when he repaid the loan amount of Rs.30,000/- to the plaintiff, he received back the document which was executed as security for the loan transaction and thus the original sale deed happened to be in his possession. That means, though the plaintiff claims to be the owner of the land, he is not holding possession of the original title deed and the original document is in the possession of the defendant. It is worthwhile to mention that though there was an attempt on the side of the plaintiff to show that the defendant might have taken the document from his possession behind his back, he could not substantiate the same. That is also a strong circumstance to conclude that the execution of the document was not intended to be acted upon and it might have been created as a security for the loan amount advanced by him to the defendant for construction of the building. 13. Another circumstance to show that this document was not intended to be acted upon is the admission of the plaintiff himself that the property is lying as a single plot without any demarcation or separation with the property covered under Ext.B19/Ext.A2 document. The Commission R.F.As. 308 & 355/2008 12 Report would also support the case of the defendant that the entire property is lying as single plot covered with a two storied building. Normally, if the plaintiff had spent money for construction reliable documents would be available and independent and credible witnesses would have been produced before the court and cogent evidence would have been adduced by him. It cannot be lost sight that construction of a two storied building need the work and effort of so many persons. None of them were examined to substantiate the case advanced by the plaintiff. Therefore, his statement cannot be taken as gospel truth. If the entire circumstances are seen in totality what emerges is that, the case of the defendant that he had borrowed a sum of Rs.30,000/- and as security for the loan transaction, Ext.B19/Ext.A2 was executed and the plaintiff was never put in possession of the property scheduled in the document. It is pertinent to note that though the plaintiff had claimed partition of the entire property having an extent of 7.114 cents and the building therein and to allot half share, had submitted at the time of evidence that he was claiming only 1.500 cents of land included in B19/Ext.A2 document. But no amendment was made to the plea to that effect and the pleadings were also not definite . As stated earlier though the title of the property is in dispute, the burden of proving title has not been discharged by the plaintiff. 14. In **Nagar Palika** v. **Jagat Singh** ((1995) 3 SCC 426), the Apex Court observed that in a suit based on title, the burden is upon the party claiming title, to prove the same. When the title is disputed, granting a decree merely on the basis of the entries in the revenue records in favour of the party, is not correct. It is observed in para 11 as follows: R.F.As. 308 & 355/2008 13 “11. On behalf of the respondent, reference was made to the case of Chhote Khan v. Mal Khan, where it was said by this Court that entries in jamabandis fall within the purview of the record of rights under Section 31 of the Punjab Land Revenue Act and as such are to be presumed to be true until the contrary is proved. Reference was also made to the case of Durga Singh v. Tholu where it was said that in an ejectment suit a finding by the District Judge on the question whether the defendants were the tenants of the plaintiff arrived at, on the consideration of all evidence, oral and documentary, adduced by the parties, was a finding of fact and could not have been set aside in second appeal by the High Court. Reliance was also placed on the case of Vishwa Vijay Bharati v. Fakhrul Hassan in which this Court held that the finding of lower appellate court on the question whether entries in revenue record were genuine or fraudulent was a question of fact and could not be set aside in second appeal. It has already been pointed out that the court of appeal without considering the question whether the plaintiff-respondent had proved his title to the property in dispute proceeded to examine whether the said respondent was in possession thereof. In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the respondent. The court of appeal never inquired or investigated that question which was at issue saying that the title of the plaintiff-respondent was admitted by the appellant. This was a serious error of record. The title and possession of the respondent had always been disputed by the appellant from the stage of the written statement. In this background, suit of the respondent could not have been decreed merely on the basis of entries in the revenue records during the pendency of the earlier suit filed in the year 1971. As such the cases relied upon on behalf of the respondent have no bearing on the facts of the present appeal. A substantial question of law was involved in the second appeal presented before the High Court against the judgment of the court of appeal and the High Court ought to have interfered and set aside the judgment of the court of appeal.” R.F.As. 308 & 355/2008 14 15. A defendant can raise any legitimate contention to defeat the suit of plaintiff. But the plaintiff is supposed to adduce reliable evidence based on the pleading. The learned counsel for the defendant has also argued that the plaintiff has admitted that the main contest in the suit is with respect to the recovery suit filed by the defendant and not the partition suit filed by the plaintiff. From the events narrated above it is so evident that the defendant had vehemently denied the title of the plaintiff as well the claim of the plaintiff that the expenses for construction were met by the plaintiff. If there was a sale the defendant cannot retain any part of his interest or right in the property. But what could be gathered from the conduct of the parties is that the title/ownership has not been passed in favour of the plaintiff on execution of Ext.B19/A2. 16. DW 4 is a tenant who is occupying one of the rooms in the building. He deposed that he is paying the rent of the room in which he is occupying as a tenant to the defendant. He would say that though he intervened in the dispute between the parties for a settlement as suggested by the mother of the plaintiff and the defendant, the plaintiff put forth a claim for an amount of Rs.5,50,000/- so as to vacate the room in his possession. But as the demand made by him was for an exorbitant amount, the settlement was not materialized and thus his attempt turned futile. In short, the clear and vivid picture that emerges from the evidence on record is that, the building permit was obtained in favour of the defendant as the owner of the land, the assessment was made in his favour and that the building was constructed by him and some of the rooms were rented out by R.F.As. 308 & 355/2008 15 him and he is collecting the rent from the tenants as the landlord. In the light of the surrounding circumstances it is clear that the intention of the parties was to create a security for the loan advanced and not an absolute sale as claimed by the plaintiff and no money was tendered as sale consideration. Evidence is totally lacking to show that the plaintiff is having title over any portion of the property as the owner and his possession is only as permitted by the defendant as he is his elder brother. Therefore, his claim that he is entitled to get partition of the property is without any legal support. Undoubtedly the materials on record strengthen the claim of the defendant that he is entitled to recover possession of the property from the plaintiff and therefore, there is no merit in the appeals. Hence, I find no reason to interfere with the judgment and decree under challenge. In fact, the learned Sub Judge obviously taking into consideration of all the above aspects dismissed the suit filed by the plaintiff and decreed the suit filed by the defendant. For the aforesaid reasons, both the appeals will stand dismissed. Parties shall bear their respective costs. ## **Sd/-** ## **SHIRCY V.** **JUDGE** **sb**