RSA Nos.711/2008 & 1238/2011 (Regular Second Appeal) - T.M. Shafi and others v. G.L. Khaderkunhi and others / C. L. Khaderkunhi v. T.M. Shafi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941 RSA.No.711 OF 2008(B)** **AGAINST THE DECREE & JUDGMENT IN AS 175/2002 DATED 20-06-2007 OF ADDITIONAL DISTRICT COURT (ADHOC), KASARAGOD AGAINST THE DECREE & JUDGMENT IN OS 152/1996 DATED 29-11-1997 OF ADDITIONAL MUNSIFF COURT, KASARAGOD** ## **APPELLANT/SUPPLEMENTAL 2ND RESPONDENT/SUPPL.2ND DEFENDANT:** **1 T.M.SHAFI, AGED 49 YEARS S/O.MOHAMMED, MUSLIM, KOMBAMPARA, KALANAD VILLAGE, KASARAGOD TALUK AND, DISTRICT - 1, P.O.KALNAD.( DIED, LEGAL HEIRS IMPLEADED)** **ADDL. AYSHA, R2 AGED 62 YEARS** **ADDL. MOIDEEN KUNHI K.S., R3 AGED 44 YEARS** **ADDL. FATHIMA, R4 AGED 40 YEARS (ADDL.APPELLANTS 2 TO 4 ARE THE WIFE AND CHILDREN OF LATE T.M.SHAFI THE DECEASED APPELLANT AND ALL ARE RESIDING AT KOMPANPARA IN KALNAD VILLAGE AND POST, KASARAGOD.)** **THE LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL A2 TO A4 AS PER ORDER DATED 22/1/2020 IN I.A 3/19.** ## **BY ADV. SRI.KODOTH SREEDHARAN** RSA Nos.711/2008 & 1238/2011 2 ## **RESPONDENTS/APPELLANT AND 1ST RESPONDENT/PLAINTIFF AND 1ST DEFENDANT:** - **1 G.L.KHADERKUNHI AGED 55 YEARS,S/O.MOHAMMED, MUSLIM, LANDHOLDER, R/AT DESHYATH OF CHEMMANAD VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT.** - **2 N.BABU, AGED 61 YEARS, S/O.CHOMA RESIDING AT PUTHARIYADUKAM, THEKKIL VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. ( DIED, LEGAL HEIRS IMPLEADED)** - **ADDL. CHOMARU,** - **R3 AGED 63 YEARS, W/O.N.BABU, RESIDING AT PUTHARIYADUKAM, THEKKIL VILLAGE AND POST, KASARAGOD DISTRICT.** - **ADDL. SUNDARAN,** - **R4 AGED 45 YEARS,** - **ADDL. GOPIKA, R5 AGED 38 YEARS,** - **ADDL. KESAVAN R6 AGED 36 YEARS,** - **ADDL. SHARADA, R7 AGED 30 YEARS,** - **ADDL. RAVEENDRAN, R8 AGED 27 YEARS,** **(SUPPLEMENTAL RESPONDENTS 4 TO 8 ARE CHILDREN OF N.BABU,RESIDING AT PUTHARIYADUKAM, THEKKIL VILLAGE AND POST, KASARAGOD TALUK.)** **THE LEGAL REPRESENTATIVE OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL R3 O R8 AS PER ORDER DATED 22/1/2020 IN IA 962/11** **ADDL. YOUSUF T.M., R9 AGED 36 YEARS, S/O.T.M.SHAFI, R/AT KOMPANPARA, KALNAD VILLAGE AND POST, KASARAGOD DISTRICT.** RSA Nos.711/2008 & 1238/2011 3 **ADDL. ABDUL AZEEZ, R10 AGED 46 YEARS, S/O.T.M.SHAFI, R/AT KOMPANPARA, KALNAD VILLAGE AND POST, KASARAGOD DISTRICT.** **ADDL. ABDU SALAM, R11 AGED 39 YEARS S/O.T.M.SHAFI, R/AT KOMPANPARA, KALNAD VILLAGE AND POST, KASARAGOD DISTRICT.** **THE LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL R9 TO R11 AS PER ORDER DATED 22/1/2020 IN IA 4/19.** **R1 BY ADV. SRI.V.V.ASOKAN R1 BY ADV. SMT.S.AMINA R2, R3-8 BY ADV. SRI.M.T.MADHAVANUNNI R2, R3-8 BY ADV. SRI.V.A.SATHEESH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2020, ALONG WITH RSA.1238/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA Nos.711/2008 & 1238/2011 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** ## **RSA.No.1238 OF 2011** **AGAINST THE DECREE & JUDGMENT IN AS 225/2002 AND A.S.NO.54/2003 DATED 24-08-2011 OF DISTRICT COURT,KASARAGOD** **AGAINST THE DECREE & JUDGMENT IN OS 153/1996 DATED 31-10-1998 OF PRINCIPAL MUNSIFF COURT, KASARAGOD** **PLAINTIFF/APPELLANT IN A.S.225/2002 AND 1ST RESPONDENT IN A.S.NO.54/2003/ APPELLANT:** **C.L.KHADERKUNHI, S/O.MOHAMMAD, DESHYATH OF CHEMNAD VILLAGE, P.O.CHEMNAD, KASARGODE TALUK.** **BY ADVS. SRI.V.V.ASOKAN SMT.RUKHIYABI MOHD KUNHI** **2ND DEFENDANT AND SUPPLEMENTAL DEFENDANTS 3 TO 7/RESPONDENTS/RESPONDENTS IN A.S.NO.225/2002 AND SUPPLEMENTAL APPELLANTS 2 TO 6 AND 2ND RESPONDENT IN A.S.NO.54/2003/RESPONDENTS:** - **1 T.M.SHAFFI, S/O.MOHAMMED, KOMBAMPANA, KALNAD VILLAGE, P.O.KALNAD,, KASARGODE TALUK-671 121. (DIED LHRS IMPLEADED)** - **2 JANAKI ,W/O.RATNAN ,KANARA OF THEKKIL VILLAGE AND POST, KASARGODE TALUK-671121.** - **3 ASHOKAN , S/O.RATNA, KANARA OF THEKKIL VILLAGE AND POST, KASARGODE TALUK-671121.** - **4 SANTHOSH K., S/O.RATNA** RSA Nos.711/2008 & 1238/2011 5 **KANARA OF THEKKIL VILLAGE AND POST, KASARGODE TALUK-671121.** - **5 PRAMOD, S/O.RATNA, KANARA OF THEKKIL VILLAGE AND POST, KASARGODE TALUK-671121.** - **6 PRASANTH ,S/O.RATNA, KANARA OF THEKKIL VILLAGE AND POST, KASARGODE, TALUK-671121.** - **ADDL. AYSHA, R7 W/O.LATE T.M.SHAFFI, KOMBAMPANA, KALNAD VILLAGE, P.O.KALNAD,, KASARGODE-671 317.** - **ADDL. FATHIMA, R8 D/O.LATE T.M.SHAFFI, KOMBAMPANA, KALNAD VILLAGE, P.O.KALNAD,, KASARGODE-671 317.** - **ADDL. MOIDEEN KUNHI, R9 S/O.LATE T.M.SHAFFI, KOMBAMPANA, KALNAD VILLAGE, P.O.KALNAD,, KASARGODE-671 317.** - **ADDL. YOUSUF, R10 S/O.LATE T.M.SHAFFI, KOMBAMPANA, KALNAD VILLAGE, P.O.KALNAD,, KASARGODE-671 317.** - **ADDL. ABDUL AZEEZ, R11 S/O.LATE T.M.SHAFFI, KOMBAMPANA, KALNAD VILLAGE, P.O.KALNAD,, KASARGODE-671 317.** - **ADDL. ABDU SALAM, R12 S/O.LATE T.M.SHAFFI, KOMBAMPANA, KALNAD VILLAGE, P.O.KALNAD,, KASARGODE-671 317.** - **(ADDITIONAL RESPONDENT NOS. 7 TO 12 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT AS PER ORDER DATED 22.01.2020 IN IA.1/2019.)** **R1 BY ADV. SRI.KODOTH SREEDHARAN R2 TO R6 BY ADV. SRI.AJEESH S.BRITE** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2020, ALONG WITH RSA.711/2008(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA Nos.711/2008 & 1238/2011 6 ## **CR** ## **JUDGMENT** A suit for specific performance of contract for sale was decreed in part by the trial court directing return of advance amount in O.S.No.153/1996 (R.S.A.No.1238/2011). The first appellate court set aside the said decree and dismissed the suit on the ground that Ext.A1 agreement was executed against public policy. The other suit, O.S.No.152/1996 ( R.S.A.No.711/2008) was dismissed by the trial court, but on appeal, the suit was decreed allowing specific performance. 2. Whether a comparison under Section 73 of the Evidence Act will prevail over an opinion given under Section 45 of the Evidence Act is the question that came up for consideration. 3. Some striking similarities were noticed by this court in these two appeals though they arise from two RSA Nos.711/2008 & 1238/2011 7 different suits and its decree and judgment. Hence it is felt prudent to have a common judgment in the matter. 4. The subject of both the suits are immoveable properties which come to 40 cents and 37 cents respectively, given to two landless persons. The plaintiff and the 2[nd] defendant in both the suits are the same persons. The dispute arose at the time of purchase of property by the 2[nd] defendant from the landless persons, the respective first defendant. 5. In both the suits, a sale agreement in anticipation was created between the plaintiff and the respective landless person, the first defendant in both the suits just after the issuance of pattayam obtained under the guise of a landless person. There is a clause in the pattayam preventing alienation for a period of three years. To circumvent the said clause, the period of contract for sale was agreed and fixed just after the expiry of three years ignoring the fact that it was a property given to a landless person. Yet another striking aspect was also noticed by this court RSA Nos.711/2008 & 1238/2011 8 that the balance sale consideration to be paid is only Rs.250/- in both the cases. There is no evidence to reflect the payment of part sale consideration in advance except what has been stated in the agreement. By the creation of the said agreement, the plaintiff effectively manipulated a device to take away the property given to a landless person just on completion of three years from the date of assignment at the risk of payment of Rs.250/- in both the suits. This would certainly engender a reasonable doubt as to the genuineness of creation of an agreement for sale of property in anticipation, that too, close on the heels of issuance of pattayam to a landless person. It is a clear indication regarding the fraudulent device resorted to by the plaintiff to snatch the property given to a landless person at the risk of payment of Rs.250/- in both the cases. The circumstance under which the pattayam was issued reducing the earlier period of seven years into three years becomes seminal at this juncture. If it is actually intended for the benefit of landless person, necessarily, there should RSA Nos.711/2008 & 1238/2011 9 be adequate measure to preserve the same as the property of landless person. But, instead of incorporating adequate measures, a relaxation is seen given to sell the property to strangers just on completion of 36 months ( 3 years). In the instant case, the plaintiff obtained an agreement for sale immediately after the assignment of the property to the landless person for purchasing the same on expiry of 36 months ( 3 years), the period of prohibition against alienation. This would show that the crafty curtailment of period of seven years into three years had facilitated the land mafias to achieve their goal under the guise of a landless person and to snatch the property of state government under that pretext. The minimum period required for safeguarding the property given to a landless person which was earlier fixed as seven years was arbitrarily reduced to three years i.e. just 36 months facilitating this kind of skulduggery in the hands of land mafia. The striking similarity involved in these two cases would certainly show that it is not an exception, but an indication of large RSA Nos.711/2008 & 1238/2011 10 scale manipulation of the property given to a landless person. This goes not only against the state government, but also against the entire society, the public at large. The reduction of period of alienation from seven years to three years would show and speak volumes about this colossal malfeasance. 6. This had come to the notice of this court by the intervention of yet another person, the 2[nd] defendant who obtained sale deeds from the respective first defendant, the landless persons before the expiry of three years period of restriction on alienation. It was not challenged either by the respective first defendant or by the state government. In fact, there is an easy walk over in the matter of property given to landless persons and this will ultimately go to some other person who are engaged in such activities and it is well evident from the fact that the 2[nd] defendant, yet another person purchased the property under two sale deeds, that too, prior to the expiry of prohibited period of three years. But no protest was seen raised against the said document, though it was executed in RSA Nos.711/2008 & 1238/2011 11 contravention of prohibitory period of alienation incorporated in the pattayam. The state government has not so far challenged the said document and no action was taken in that behalf. None has challenged the said document and even the state government has not raised any objection. They have not even challenged the creation of a contract for sale executed in anticipation in favour of the plaintiff and the creation of two subsequent sale deeds in the name of 2[nd] defendant, that too, prior to the expiry of period of prohibition on alienation. The involvement of two rival groups in getting the property in their respective names is well evident and this would show and speak volumes what is going on in our society. The state government is duty bound to protect the interests of landless person and to preserve their property by incorporating sufficient protective measures. The reduction of period of restriction to three years ( 36 months) gives the land mafia a shot in the arm in getting the property of landless person in their name. This would show an illegal nexus between the land mafia RSA Nos.711/2008 & 1238/2011 12 and landless persons in extorting the property belonging to the state government under the facade of a landless person. The reduction of period of alienation into three years further encourages an easy mode to plunder the property of state government. Since it is not an exception, but involves systematic gobbling up of property belonging to the government in large scale under the veneer of landless persons, a detailed enquiry by an independent agency is imperative and the state government is duty bound to conduct such an enquiry to expose the nefarious activities of the land mafia. 7. Regarding the genuineness of the agreement, the first appellate court applied Section 73 of the Evidence Act ignoring the expert opinion adduced under Section 45 of the Evidence Act. It is impermissible to reject the expert evidence under Section 45 of the Evidence Act by a comparison under Section 73 of the Evidence Act and as such the finding rendered by the first appellate court in O.S.No.153/1996 cannot be sustained. RSA Nos.711/2008 & 1238/2011 13 8. The agreement for sale itself would show what is behind it. Both the agreements were executed in anticipation, fixing a period for its performance after the expiry of three year period of restriction imposed. In both the cases, balance sale consideration is only Rs.250/-. The respective first defendant, the landless person sold the property to the 2[nd] defendant prior to the completion of three year period. The involvement of two rival groups and their attempt to wean away the property given to a landless person is well evident and the same would constitute a factor relevant in the exercise of discretion under Section 20 of the Specific Relief Act not to grant specific performance. 9. The suit, O.S.No.153/1996 is for specific performance without seeking possession of property from the second defendant, who obtained possession by virtue of a subsequent sale deed executed by the 1[st] defendant. Since it was executed prior to the expiry of three year period, it was submitted by the plaintiff that the sale deed would stand void ab-initio, but the possession of property was diverted under the guise of that document RSA Nos.711/2008 & 1238/2011 14 to the 2[nd] defendant. The legal position settled by this court in **Muhammed Haneefa v. Radhamani Amma ( 2019 (1)** **KLT 837)** cannot be applied in the instant case. What is dealt with in the above said decision is the liability of a pendente lite transferee, who is bound by the decree under Section 52 of Transfer of Property Act, though there is no privity of contract. It cannot be extended to a person who had obtained possession of property under a document of transfer prior to the institution of the suit, wherein the question of privity of contract or the liability under Section 52 of the Transfer of Property Act would not come into play. But a suit for specific performance of contract for sale should be understood as the one seeking performance of contract inclusive of possession of property which is the subject of contract for sale. As such, a separate relief of possession need not be incorporated when the person who had obtained possession either based on a deed of transfer or otherwise made as a party to the suit. RSA Nos.711/2008 & 1238/2011 15 10. It is strange enough to notice that inconsistent views were taken by the courts below in two identical cases. The suit in O.S.No.152/1996 was dismissed by the trial court, but in appeal the suit was decreed allowing specific performance. But in the suit in O.S.No.153/1996 the first appellate court set aside the decree granted by the trial court for return of the advance amount and dismissed the suit holding that Ext.A1 agreement is opposed to public policy. The grounds raised by this court not to grant specific performance would equally apply to the suit in O.S.No.152/1996. The decree granted for specific performance in O.S.No.152/1996 hence liable to the set aside, subject to the liability of return of the advance amount. 11. The appeal in R.S.A.No.711/2008 is allowed in part accordingly. The decree and judgment of both the courts below in O.S.No.152/1996 will stand set aside allowing a decree of recovery of advance amount of Rs.9750/- with interest @ 6% p.a. from the date of suit till the date of realization from the 1[st] defendant. RSA Nos.711/2008 & 1238/2011 16 R.S.A.No.1238/2011 is allowed in part accordingly. The decree of the first appellate court dismissing the suit in O.S.No.153/1996 is hereby set aside granting a decree of return of advance amount of Rs.11,750/- with 6% interest from the date of suit till the date of realization from the 1[st] defendant. Both the appeals are allowed in part accordingly. No costs. The Registry is directed to send a copy of this judgment to the Chief Secretary, State of Kerala to initiate an enquiry pertaining to the large scale malpractices mentioned above by employing an independent agency. ## **Sd/-** ## **P.SOMARAJAN** sv **JUDGE**