T.A. George v. T.M. KuriaKose and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942** ## **RFA.No.192 OF 2012** **AGAINST THE JUDGMENT AND DECREE IN OS 8/2007 DATED 15-102011 OF SUB COURT,THODUPUZHA** ## **APPELLANT/DEFENDANT:** **T.A.GEORGE AGED 45 YEARS S/O.ABRAHAM,THAYYIL HOUSE, K.D.H.VILLAGE,MUVATTUPUZHA TALUK** **BY ADVS.** **SRI.FRANCIS J.VATTAKUZHI SRI.ARUN MATHEW VADAKKAN** ## **RESPONDENTS/PLAINTIFF:** **1 T.M.KURIAKOSE S/O.MATHAI, THAYYIL HOUSE, KDH VILLAGE, MUNNAR-685612. 2 STATE OF KERALA REP. BY THE SECRETARY, GOVERNMENT OF KERALA, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **(IS IMPLEADED IN THE PARTY ARRAY AS ADDL.2ND RESPONDENT VIDE ORDER DT.26.3.2018 IN IA 560/18) R1 BY ADV. SRI.P.CHANDY JOSEPH ADV. SRI.C.K.VIDYASAGAR R2 BY ADV.SRI.HASHIR K.M., GOVERNMENT PLEADER** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2020, THE COURT ON 22-12-2020 DELIVERED THE FOLLOWING:** ## **R.F.A.(Indigent)No.192 of 2012** ## **:-2-:** ## **Dated this the 22[nd] day of December, 2020** ## **J U D G M E N T** Being aggrieved by the impugned judgment and decree of the Sub Court, Thodupuzha, in O.S.No.8/2007, granting specific performance of agreement for sale and perpetual injunction, the sole defendant preferred this appeal. While ordering the plaintiff/respondent to pay the balance amount of Rs.5 lakhs as per the terms of contract of sale, the court below directed payment of additional amount of Rs.4 lakhs also exercising its discretion. This part of the decree is not challenged by the respondent and has become final. 2. The plaint schedule 8.75 cents of land and the residential building owned by the appellant is comprised in Kannan Devan Hills Village (KDH Village) and is part of 10½ cents obtained by him under Ext.A1 patta dated 30.04.1999. The ## **R.F.A.(Indigent)No.192 of 2012** ## **:-3-:** respondent's case is that the appellant agreed to transfer plaint schedule property for a total sale consideration of Rs.18 lakhs as per Ext.A4 unregistered agreement for sale dated 19.02.2004 and also give advance possession immediately on receipt of a sum of Rs.8 lakhs within four months of Ext.A4 and received an advance amount of Rs.25,000/- on the date of agreement itself. The respondent claims to have paid Rs.13 lakhs before the stipulated four months and got possession of plaint property on 17.04.2004. 3. During the relevant period, there were allegations of corruption against the Additional Tahsildar of Devikulam village that he had issued large number of fake pattas including Ext.A1 to ineligible persons and following this controversy, the State Revenue Department had undertaken official enquiries to identify and cancel such ## **R.F.A.(Indigent)No.192 of 2012** ## **:-4-:** bogus pattas in accordance with law. In this connection, IG of Registration issued a circular debarring registration of lands comprised in KDH Village without obtaining prior permission from the Revenue authorities. 4. In Ext.A4, a stipulation was therefore made by the parties that the buyer needed to pay balance amount of Rs.5 lakhs to the vendor only upon the latter procuring an NOC from Revenue authorities before registration. According to the respondent, the appellant was not prepared to go ahead with the contract of sale and obtain NOC as agreed and was not willing to perform his part of the contract, though the respondent was always ready with balance purchase money for payment. It was in this background, the suit for specific performance and perpetual injunction was filed. 5. The appellant opposed the suit before the ## **R.F.A.(Indigent)No.192 of 2012** **:-5-:** court below denying execution of Ext.A4 and contended that it was not executed for any consideration. It was also contended in the written statement that the respondent who is a professional money lender and also politically influential, obtained Ext.A4 under threat, coercion and undue influence using muscle power and therefore, the agreement for sale was not enforceable under law. The appellant out of his dire necessity to raise funds for treating his wife, received some loan amounts on various occasions agreeing to return the same with interest. Neither the appellant nor the witnesses voluntarily subscribed their signatures in Ext.A4. The appellant also denied having put the respondent in possession of suit property and alleged that respondent encroached into the property using his muscle power. Another contention is that the plaint property is in fact a co-ownership ## **R.F.A.(Indigent)No.192 of 2012** ## **:-6-:** property held by his mother and brothers though patta was issued in his sole name and therefore also Ext.A4 is vitiated. Suit property is contended to be an inalienable land under law and therefore in the eyes of law a decree for specific performance is incapable of being passed. 6. The court below framed requisite issues and answered all of them against the appellant. Ext.A1 to Ext.A32 were admitted on the side of the respondent and he was examined as PW1. Appellant examined himself as DW1 and his witnesses as Dws.2 to 5. No documents were produced on his side. He relied on Exts.X1 to X3 medical records produced from hospitals through DWs.2 and 5. 7. On appreciating the contentions of parties and evidence on record, the court below entered into the following findings; 1)the appellant voluntarily executed Ext.A4 for ## **R.F.A.(Indigent)No.192 of 2012** **:-7-:** consideration and agreed to sell plaint property. - 2)The transaction under Ext.A4 is not the outcome of a debtor-creditor relationship as contended by the appellant. - 3)The respondent was ready and willing to perform his part of the contract and was in possession of requisite funds. - 4)Respondent is in possession and enjoyment of suit property and is therefore entitled to decree for permanent injunction, and, **==> picture [416 x 139] intentionally omitted <==** **==> picture [399 x 12] intentionally omitted <==** **==> picture [434 x 12] intentionally omitted <==** ## **R.F.A.(Indigent)No.192 of 2012** ## **:-8-:** counsel for the appellant and the respondent. 9. The points that arises for consideration in this appeal are the same as considered by the trial court. (i) Is Ext.A4 agreement for sale vitiated by coercion, undue influence or other causes ? - (ii) Whether the agreement for sale is legally enforceable under law ? (iii) Is respondent is ready and willing to perform his part of the contract ?, and, **==> picture [366 x 12] intentionally omitted <==** the Act was lawfully exercised by the court below ? 10. The factual finding entered into by the court below that Ext.A4 was not vitiated by threat or coercion, is fully in consonance with the evidence on record. The contention of appellant ## **R.F.A.(Indigent)No.192 of 2012** ## **:-9-:** that document was executed under coercion, was not proved by any evidence. The plea of coercion put forward in paragraph No.4 of the written statement seems to have been given a go-bye at the stage of evidence. No police complaint was ever preferred against the alleged coercion. The mother and brothers of appellant who attested Ext.A4 were not summoned to speak to the alleged coercion or compulsion. 11. The appellant in his testimony developed a new case that while receiving loan amounts from the respondent in connection with treatment expenditure of his wife, he had signed a few blank stamp and other papers and handed over Ext.A1 patta and tax receipt as security documents but they were later misused and converted by the respondent as an agreement for sale. This statement in the evidence was developed for the first time and does not find ## **R.F.A.(Indigent)No.192 of 2012** **:-10-:** any place in the pleadings. Whatever it be, the self-serving evidence of the appellant was not corroborated by any independent evidence. Further, PW1 denied that Ext.A4 was the outcome of the loan transaction. 12. The best witnesses to speak to truth were the attestors who were not examined for no good reasons. The appellant developed a version in his chief examination itself that he was badly in need of money for treatment of his wife as well as mother. But the court below found it very difficult to accept this plea to be convincing since Exts.X1 to X3 treatment records brought from hospitals showed that the persons who took treatment were actually suffering from deceases different from those alleged by DW1 in the box. It was also found by the court below that the appellant and his mother were treated for periods subsequent to ## **R.F.A.(Indigent)No.192 of 2012** ## **:-11-:** execution of Ext.A4. 13. The circumstances thus clearly show that execution of Ext.A4 was quite voluntary and appellant affixed his signatures in the document acknowledging it as agreement for sale. DW1 admitted that endorsements on the reverse side of Ext.A4, acknowledging receipt of purchase money on various dates, were made in his own hand. The learned appellant's counsel argued that plaint property was owned by co-owners who are his mother and brothers and their non joinder in Ext.A4 indicated that appellant had no intention to execute an agreement for sale and it was not a voluntary execution. This argument does not merit acceptance since Ext.A2 sale deed dated 14.07.2000 shows that the appellant himself sold 1.75 cents of land out of 10½ cents obtained under Ext.A1 patta claiming himself to be the exclusive owner of the ## **R.F.A.(Indigent)No.192 of 2012** **:-12-:** property. Therefore, he cannot conveniently turn round and now contend that his mother and brothers are also co-owners of suit property. 14. It is not disputed that respondent is in possession of suit property. Appellant's sole contention is that respondent encroached into the property and put up structures. Relying on various documents produced by the respondent, the court below, in my opinion, rightly found that respondent is in actual possession of the property and is conducting lodges therein. 15. It is true that the respondent cannot rely on recitals in Ext.A4 to contend that he was put in possession in part-performance of contract for sale since Ext.A4 was not registered as required by law. There is bar under Section 49 of the Registration Act, 1908, against unregistered document being admitted in evidence of possession taken in part ## **R.F.A.(Indigent)No.192 of 2012** **:-13-:** performance of contract and used in proof of claim under Section 53A of the Transfer of Property Act. Nonetheless _de hors_ Ext.A4, the court below was satisfied that there was sufficient evidence which proved that during the currency of agreement for sale, the respondent came into possession of property in lawful manner. The appellant filed O.S.No.142/2006 before Munsiff's court, Devikulam, for injunction against the respondent denying execution of agreement for sale. The court dismissed petition for temporary injunction by a considered order and later dismissed the suit also for non prosecution. This is also a circumstance relied on by the court below as evidence showing that appellant came into possession of suit property in lawful manner during currency of Ext.A4. 16. Ext.A4 shows that the respondent paid Rs.13 ## **R.F.A.(Indigent)No.192 of 2012** **:-14-:** lakhs out of total sale consideration of Rs.18 lakhs even before the stipulated time and he was waiting for the appellant to obtain NOC from the Revenue officials. The court below rightly believed the evidence given by PW1 and correctly found that the respondent was ready and willing to perform his part of the contract. The said finding of the court below is, in my opinion, not worth interfering. Moreover, the appellant who was all through out interested in denying execution of Ext.A4 did not have any contention that he had taken steps to obtain NOC from the Revenue authorities as required by Ext.A29 circular issued by the Registration Department and was prepared and willing to perform his part of the contract. 17. The learned counsel for the appellant raised legal contentions assailing the validity and enforceablility of Ext.A4 for three reasons, ## **R.F.A.(Indigent)No.192 of 2012** ## **:-15-:** (I) The revenue officials did not issue NOC as mandated by Ext.A29 and in the absence of such NOC, Ext.A4 is hit by Section 32 of the Indian Contract Act which renders a contingent contract void under law. (II)The patta lands in KDH village being inalienable for 12 years as laid down by Rule 8 of Kannan Devan Hills (Reservation and Assignment of vested lands) Rules, 1977 (for short, 'the Rules, 1977), Ext.A4 agreement for sale executed within the prohibited period itself is void, and, (III) the revenue authorities have not finalised the on going enquiries as to the existence of fake pattas issued by Additional Tahsildar, Devikulam and before the proceedings attaining finality, it was not fair for the court below to have ## **R.F.A.(Indigent)No.192 of 2012** ## **:-16-:** exercised discretion under Section 20 of the Act and granted a decree for specific performance. In this connection, the learned counsel for the appellant relied on decisions reported in **Lalithambika v. Varghese (2005(1) KLJ 11)** , **Baij Nath v. M/s.Ansal and Saigal Properties Pvt.(Ltd.) (1993 KHC 1549)** , **K.Narendra v. Riviera Apartments (P) Ltd. (AIR 1999(SC) 2309)** and **Tejram v. Patirambhau (1997 KHC 1174).** 18. The contention that in the absence of NOC being obtained from the District Collector, execution of sale deed pursuant to Ext.A4 agreement is quite impossible cannot survive for the reason that this Court itself had made it clear in the decision reported in **Selvam v. State of Kerala (2010(1) KLT 508)** that Ext.A29 cannot stand in the way of holders of land registering deeds ## **R.F.A.(Indigent)No.192 of 2012** **:-17-:** relating to the properties in KDH village. Following this decision, difficulty for registration of deeds in KDH village has already been removed. Therefore, it is futile for the appellant to contend that Ext.A4 being a contingent contract, is unenforceable. 19. It is true that Rule 8 of the Rules, 1977 provides that lands assigned for personal cultivation and residence are inalienable for a period of 12 years and Ext.A4 agreement for sale was executed within the prohibited period. It is, however, to be noted that Ext.A1 patta does not contain any clause or condition prohibiting the assignee for alienating the land. The learned counsel for the appellant in this context submitted that Ext.A1 patta itself is under scrutiny of the revenue officials since it was not issued by competent authority as envisaged by the Rules, ## **R.F.A.(Indigent)No.192 of 2012** **:-18-:** 1977. I am not able to find out from the pleadings of the appellant or from the contentions raised in the appeal memorandum that he ever raised a specific plea that Ext.A4 was unenforceable under law for the reason that it was inalienable. As I said earlier, Ext.A1 does not contain any clause prohibiting alienation. In any view of the matter I do not think that bar placed by Rules as against alienation, could now operate since the prohibited period of 12 years had already been over even before the institution of this appeal. 20. In the course of the appeal, the Secretary to Revenue Department was impleaded in the appeal as additional second respondent and was called upon to submit the steps taken by the Government to finalise the enquiry into the fake pattas issued by the Additional Tahsildar in Devikulam village during the relevant period. In paragraph No.3 of ## **R.F.A.(Indigent)No.192 of 2012** **:-19-:** the affidavit dated 05.08.2020 submitted by the Government, it was represented that the genuineness of Ext.A1 patta is yet to be verified. If patta is found to be genuine on enquiry, it would be cancelled and a fresh patta would be issued as per the assignment rules. If, on the other hand, patta is found to be irregular, it will be cancelled once and for all and the property will be resumed by the Government. After hearing the learned counsel for the appellant, I am of the opinion that merely because enquiry is yet to be finalised, it may not be proper or fair to refuse a decree for specific performance, since appellant does not have a case that he did not get the title by assignment nor patta issued to him is either fake or irregular. Since there is evidence that Ext.A4 was voluntarily executed by the appellant agreeing to transfer the suit land, he is bound to execute the sale deed on ## **R.F.A.(Indigent)No.192 of 2012** ## **:-20-:** receipt of the balance sale consideration. He cannot delay performance of his part of the contract nor disown his liability contending that enquiry as to the genuinity of Ext.A1 patta is not yet over. 21. I am quite aware that if Ext.A1 happens to be cancelled by Revenue authorities after decree for specific performance has came into vogue, it may not be possible for appellant to ask for enforcement of the decree. The learned counsel for the appellant realising the true legal position submitted he is prepared to take the risk and in the event of Ext.A1 patta happening to be cancelled and the suit land reverting back to the Government, he may not proceed to raise legal rights in the property at all. The submission made is recorded. 22. Keeping this in view, I am of the opinion that the court below rightly exercised discretion ## **R.F.A.(Indigent)No.192 of 2012** **:-21-:** available under Section 20 of the Act in favour of the respondent and awarded decree for specific performance and consequential injunction. It is a fact that appellant is conducting lodge for home stay in the property for several years pursuant to agreement for sale and thus weighing the comparitivity of hardships also, I am satisfied that the decree for specific performance granted cannot be said to be against the true spirit of Section 20 of the Act. The impugned judgment and decree are therefore confirmed. 23. Incidentally, it is also to be noticed that this Court while hearing the appeal on an earlier occasion, passed an order on 13.12.2017 recording the submission made by the learned counsel for the appellant that his party was willing to make payment of additional amount of Rs.6 lakhs over and above the decree amount which he already deposited ## **R.F.A.(Indigent)No.192 of 2012** **:-22-:** before the trial court. Resultantly, the impugned decree requires a slight modification in favour of the appellant. In the result, confirming the judgment and decree and subject to the modifications above, appeal is dismissed. The respondent/plaintiff shall deposit within a period of one month from today an additional amount of Rs.6 lakhs also as undertaken before this Court and recorded by order dated 13.12.2017 and on such deposit, the appellant shall execute sale deed in the name of the respondent forthwith. If no such sale deed is executed, the respondent will apply to the court below under Section 20 of the Act for necessary reliefs. The parties shall suffer costs. It is made clear that decree passed in favour of the respondent shall be subject to the final result of on-going enquiries at Government level as to the genuineness of Ext.A1 ## **R.F.A.(Indigent)No.192 of 2012** **==> picture [44 x 9] intentionally omitted <==** patta. The appellant shall be liable to pay court fees payable under law. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/ **CONTINUED AT PAGE NO.24** ## **R.F.A.(Indigent)No.192 of 2012** ## **:-24-:** The order dated 14/07/2021 in RFA (Indigent) 192/2012 that "Time was sought for payment of court fee on last posting date and this court has directed the appellant to file appropriate applications. No such application is forthcoming. No representation also for the appellant. Therefore the section shall proceed to realise the court fee from the appellant, by appropriate proceedings." is incorporated to the judgment dated 22/12/2020 in RFA (Indigent) 192/2012. Sd/- ## **DEPUTY REGISTRAR**