K. Thankachan vs Ambika Kumari
2021 Latest Caselaw 16895 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
            THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
  THURSDAY, THE 12TH DAY OF AUGUST, 2021/21ST SRAVANA, 1943
                   RSA NO. 1066 OF 2018
  [AGAINST THE JUDGMENT AND DECREE DTD.25.10.2018 IN AS
  NO.46/2017 OF SUB COURT AT PUNALUR ARISING FROM THE
 JUDGMENT AND DECREE DTD.19.6.2017 IN OS NO.232/2013 OF
                MUNSIFF'S COURT, PUNALUR]
APPELLANT/RESPONDENT/DEFENDANT:

K. THANKACHAN, AGED 70, S/O KUNJUKUNJU, SHIBU BHAVAN, NJARAKKADU MURI, THALAVOOR VILLAGE, PATHANAMPURAM TALUK. BY ADVS.

V.PHILIP MATHEW BIJU K.MATHEW

RESPONDENT/APPELLANT/PLAINTIFF:

AMBIKA KUMARI, AGED 66, D/O SARASAMMA, KARTHIKA, NJARAKKADU MURI, THALAVOOR VILLAGE.

BY ADV RINNY STEPHEN CHAMAPARAMPIL.

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2021, THE COURT ON 12.08.2021 DELIVERED THE FOLLOWING:

R.S.A.No. 1066 of 2018

..2..

J U D G M E N T 'C.R.'

This second appeal is filed against

the divergent findings in a suit for

declaration that Ext.A1 Sale Deed is void

ab initio and for recovery of possession of

the plaint schedule property having an

extent of 30.35 ares in Thalavoor Village,

Kollam district. The appellant is the

defendant. The suit was dismissed by the

Munsiff's court, Punalur (hereinafter

referred to as 'the trial court') finding

that the suit for declaration was not filed

within the period of three years during

which the right to sue first accrues as

provided under Article 58 of the Limitation

Act, 1963 (for short 'the Limitation Act'). R.S.A.No. 1066 of 2018

..3..

The plaintiff preferred an appeal before

the Sub Court, Punalur (hereinafter

referred to as 'the first appellate

court'). In reversal of the finding, the

first appellate court held that the suit

for declaration and recovery on the

strength of title was filed within 12 years

as provided under Article 65 of the

Limitation Act. Accordingly, the suit was

decreed. Challenging the judgment and

decree of the first appellate court, the

defendant filed this second appeal. For the

sake of convenience and clarity, the

parties are hereinafter referred to as 'the

plaintiff' and 'the defendant' according to

their status in the trial court. R.S.A.No. 1066 of 2018

..4..

2. On 8.3.2019, this Court admitted

the appeal on the following substantial

questions of law:

a) Whether the finding of the first appellate court that the right to sue first accrued only on 12-05-2013 and that the suit is not barred by limitation is correct?

b) Whether Exhibit B1 sale deed is valid?

          c)    What is the effect of not
            filing   a   suit    for   Specific

Performance based on Exhibit A2?

d) Whether respondent could claim any right over the Plaint Schedule property ignoring Exhibit A2?

3. The plaintiff filed O.S.No.

232/2013 before the trial court claiming

that Ext.A1 Sale Deed was executed as a

security for a loan when she borrowed an

amount of Rs.1,50,000/- from the defendant R.S.A.No. 1066 of 2018

..5..

on 20.8.2001. According to her, Ext.A2

agreement for re-conveyance dated 20.8.2001

was also executed simultaneously whereby

the defendant had agreed to sell the

property purchased as per Ext.A1, to the

plaintiff for a sum of Rs.10,00,000/-. The

plaintiff claimed that the defendant had

agreed to return the property when the sum

of Rs.1,50,000/- borrowed by her is repaid

with interest. She maintained that she

never intended to convey any title over the

property to the defendant and the sale deed

was executed only as a security for a debt.

She would claim that she approached the

defendant with a sum of Rs.1,00,000/- on

5.1.2012, but the amount was not accepted R.S.A.No. 1066 of 2018

..6..

by the defendant, saying that he would only

accept the whole amount with interest. She

would further contend that she approached

the defendant with a sum of Rs.3,62,000/-

on 12.5.2013 in full and final settlement

of the amount due to the defendant.

However, the defendant refused to accept

the amount. Thereafter, the plaintiff came

to know that the defendant had no intention

to return the property. Hence the suit was

filed.

4. The defendant filed written

statement contending that the defendant

purchased the property on payment of

consideration to the plaintiff. According

to him, he had taken possession of the R.S.A.No. 1066 of 2018

..7..

property on the date of sale itself and has

been in possession and enjoyment of the

property since 20.8.2001. The property

lies within specified boundaries. After the

execution of the sale deed, the plaintiff

requested the defendant that the property

may be sold to her if the defendant intends

to sell it later. Accordingly, the

defendant informed the plaintiff that the

property was not purchased for sale.

However, he agreed that if it is being sold

within a year, he is ready to sell the

property to the plaintiff. The plaintiff

did not approach him with money on 5.1.2012

and 12.5.2013 as alleged. It is

specifically contended that the attempt of R.S.A.No. 1066 of 2018

..8..

the plaintiff is to grab the property,

which is owned and possessed by the

plaintiff for more than 13 years. He

contended that the suit is barred by

limitation.

5. Based on the above pleadings,

the trial court framed the following issues

for trial:-

1. Whether sale deed No.1455/2001 of Pattazhy,SRO has come into effect?

2. Whether sale deed No.1455/2001 of Pattazhy,SRO is a sham document?

3. Whether plaintiff is entitled to get decree of declaration that sale deed No.1455/2001 of Pattazhy SRO is null and void?

4. Whether plaintiff is entitled to get decree of possession of plaint schedule property from defendant as prayed for?

R.S.A.No. 1066 of 2018

..9..

5. What is the order as to cost?

6. In this connection, it is

pertinent to note that although limitation

was set up as a defence, no specific issue

was framed in this regard. During the

trial, PWs.1 to 4 were examined and marked

Exts.A1 to A3. Dws.1 and 2 were examined

and marked Exts.B1 to B4 on defendant's

side. The defendant produced Ext.B1

original sale deed and the plaintiff

produced copy of Ext.B1 as Ext.A1. The

defendant produced property tax receipts as

Exts.B3(a) and B4 to show that mutation was

effected in his name and he paid tax to the

property.

7. The trial court held that Ext.B1 R.S.A.No. 1066 of 2018

..10..

original sale deed lacked consideration and

it was executed as security for payment of

a debt. However, the suit was dismissed on

the ground that it was barred by limitation

relying on Article 58 of the Limitation

Act.

8. The defendant did not challenge

the trial court judgment and decree

presumably for the reason that the suit was

ultimately dismissed as barred by

limitation. The plaintiff challenged the

trial court judgment before the first

appellate court. The appellant did not

raise any cross-objection in the appeal

instead the appellant raised arguments

before the first appellate court contending R.S.A.No. 1066 of 2018

..11..

that the findings of the trial court

touching Ext.B1 is incorrect. It was

further contended that the suit is barred

by limitation. The first appellate court

agreed with the finding of the trial court

that the document was executed as a

security for payment of debt. In reversal

of the finding of the trial court, the

first appellate court held that period of

limitation for a suit for declaration and

recovery is governed by Article 65 of the

Limitation Act. According to the first

appellate court, the period of limitation

starts only from 12.5.2013, the date on

which the defendant has denied the title of

the plaintiff. The first appellate court R.S.A.No. 1066 of 2018

..12..

further held that the failure of the

plaintiff to sue for specific performance

based on Ext.A2 is of no consequences.

Accordingly, the first appellate court

reversed the judgment and decree of the

trial court. The first appellate court

declared title of the plaintiff over the

plaint schedule property and has allowed

her to recover the plaint schedule property

from the defendant through the process of

court.

9. Heard Adv.Sri.Rinny Stephen

Chamaparampil, the learned counsel for the

appellant and Sri.V.Philip Mathews, the

learned counsel for the respondent.

10. The learned counsel for the R.S.A.No. 1066 of 2018

..13..

appellant contended that Ext.A1 sale deed

has not been set aside by the first

appellate court. The learned counsel for

the appellant further contended that the

respondent has received an amount of

Rs.10,00,000/- from the appellant as per

Ext.A2 and the said amount has not been

returned to the plaintiff. Elaborating on

the submission, the learned counsel for the

appellant contended that there is no order

regarding the manner in which the money has

been dealt with. The learned counsel

further submitted that even if the case

advanced by the plaintiff is true to facts,

she has been unlawfully enriched at the

expense of the defendant. The learned R.S.A.No. 1066 of 2018

..14..

counsel further submitted that the courts

below have erroneously relied on Articles

58 and 65 of the Limitation Act without

framing requisite issue for the said

purpose. It was further contended that the

failure of the defendant to file appeal or

cross-objection is of no consequence as the

trial court judgment was in his favour.

11. Per contra, the learned counsel

for the respondent contended that the cause

of action under Article 58 of the Act

accrues only when the right asserted in the

suit is infringed or there is at least a

clear and unequivocal threat to infringe

that right. Therefore, it is contended that

the mere existence of an adverse entry in R.S.A.No. 1066 of 2018

..15..

the revenue record as per Exts.B3(a) and B4

cannot give rise to a cause of action to

institute a suit. The learned counsel for

the respondent maintained that the cause of

action to institute the suit has arisen

within three years from the date of

infringement as noted in the plaint. The

learned counsel further maintained that the

first appellate court correctly found that

the suit is not barred by limitation as it

is governed by Article 65 of the Limitation

Act. It held that the suit was not a suit

for mere declaration, but a suit for

declaration of title coupled with delivery

of possession. According to the learned

counsel for the respondent, the respondent R.S.A.No. 1066 of 2018

..16..

was made to believe that Ext.A1 was a

security for payment of debt, but in fact

that was a registered sale deed, which was

obtained by the defendant clandestinely.

12. Learned counsel for the respondent

further submitted that the respondent

willingly offered the loan amount to retain

the land and then she came to know later

that the defendant played fraud on the

plaintiff and obtained Ext.A1 for a nominal

consideration though by then the value of

the suit property was more than ten times.

The learned counsel for the respondent

further contended that the omission to

frame an issue as required under Order XIV

Rule 1 and 2 of CPC would not vitiate the R.S.A.No. 1066 of 2018

..17..

trial in a suit where the parties went to

trial fully knowing the rival case and led

evidence in support of their contentions.

It has been pointed out that in the case on

hand, both the trial court and the

appellate court specifically considered the

question of limitation and answered in

favour of the respondent. More so, no

prejudice has been caused to the appellant

as alleged. Last but not the least, the

learned counsel for the respondent

submitted that Ext.A1 sale deed was

executed without any consideration. The

said finding of the trial court was not

challenged in the first appeal. Since the

said finding has become final, the R.S.A.No. 1066 of 2018

..18..

appellant is legally precluded from

contending otherwise before this Court.

13. It is not in dispute that

Ext.B1 sale deed, which is sought to be set

aside has been titled as a sale deed. The

plaintiff is described as a vendor and the

defendant, a vendee. Going by the contents

of Ext.B1, the recitals therein satisfy the

requirements and stipulations of a sale

deed for a total consideration of

Rs.1,50,000/-. On the same date, Ext.A2

agreement for re-conveyance was executed.

It is a fact that as per Ext.A2,the

defendant agreed to sell the property to

the plaintiff for a total consideration of

Rupees Ten lakh only within a year. In R.S.A.No. 1066 of 2018

..19..

Ext.A2, the parties referred to the deed of

sale executed on the same day. In Ext.A2

agreement for re-conveyance, the parties

were described as vendor and vendee. It was

also stated therein that the defendant had

agreed that if the plaintiff or his

successor pay the consideration amount of

Rupees Ten Lakh only within a year, then,

the defendant would execute the deed of

sale to the said property, to the

plaintiff.

14. The question involved in this

case is as to whether Ext.B1 sale deed was

executed by the plaintiff as a sale deed or

Ext.B1 was executed as a security for

payment of a debt. Ext.B1 sale deed is R.S.A.No. 1066 of 2018

..20..

dated 20.8.2001. Ext.A2 agreement for re-

conveyance is also on the same date. The

suit was filed on 03.07.2013 before the

Munsiff's Court, Punalur for a declaration

that Ext.B1 sale deed is null and void and

for recovery of the plaint schedule

property. The trial court entered a

finding that the suit was not filed within

three years as provided under Article 58 of

the Limitation Act. According to the first

appellate court, both Articles 58 and 65 of

the Limitation Act are applicable in this

case and thus, reversed the decree of the

trial court. The first appellate court was

of the view that the period of limitation

under Article 58 starts to run from the R.S.A.No. 1066 of 2018

..21..

date on which right to sue first accrued.

Taking into consideration the pleading that

the defendant denied the plaintiff's title

only on 12.5.2013 thus declining to execute

a re-conveyance deed, the first appellate

court held that the limitation would run

within three years therefrom.

15. The learned counsel for the

respondent contended that as the suit for

declaration of title and consequential

relief of possession was filed within three

years from the date of execution of the

deed, it cannot be held to be barred by

limitation. It was further contended that

different articles of the Limitation Act

will have to be interpreted harmoniously. R.S.A.No. 1066 of 2018

..22..

If the contention of the defendant that

Article 58 applies to a suit for possession

based on title where declaration is also

sought for, is accepted, it was contended

that it would amount to ignoring the relief

for recovery of possession and application

of Article 65 to a suit for possession and

taking away the right of the plaintiff to

prove that suit is within 12 years from the

date when the possession of the defendant

becomes adverse to the plaintiff. Thus,

it was argued that Article 58 applies to a

case where declaration simpliciter is

sought for without possession whereas

Article 65 of the Limitation Act would only

apply where the suit is based on title and R.S.A.No. 1066 of 2018

..23..

consequential relief of recovery of

possession.

16. Section 3 of the Limitation Act

mandates that subject to the provisions

contained in Sections 4 to 24, every suit

instituted,appeal preferred and application

made after the prescribed period is liable

to be dismissed even though the limitation

is not set up as a defence. If, from the

facts pleaded by the plaintiff himself, it

becomes evident that the suit is barred by

limitation, the court is obliged to dismiss

it. However, if the court finds that the

plea as to limitation is to be examined

further, it has to postpone the

consideration thereof to subsequent stages. R.S.A.No. 1066 of 2018

..24..

While dismissing the suit in exercise of

power under Section 3 of the Limitation

Act, the court must be satisfied that the

plea of limitation does not require any

further consideration. In the present

context, the trial court held that Article

58 is applicable whereas according to the

first appellate court both Articles 65 and

58 of the Limitation Act are applicable.

In the case at hand, as noticed, the trial

court omitted to frame an issue regarding

limitation. If it is a pure question of

law, it is within the realm of the

defendant to canvass the issue regarding

limitation though not specifically raised

before the trial court. However, the R.S.A.No. 1066 of 2018

..25..

application of Article 65 of the Limitation

Act cannot be permitted to be raised for

the first time at hearing of the first

appeal by the plaintiff.

17. It is a well settled principle

of law that the issue regarding limitation

is a mixed question of fact. It is to be

considered whether any question of fact is

involved in determination of the issue

regarding limitation for which evidence may

have to be adduced. If the finding on the

issue of limitation depends upon oral

evidence, it may not be desirable to take

up the issue as a preliminary issue and

decide the matter at its threshold without

permitting the parties to adduce evidence. R.S.A.No. 1066 of 2018

..26..

In the present case, the trial court has

not considered the plea of limitation

raised in the written statement. No

specific issue was formulated. However,

the trial court had mentioned in the

judgment that the suit is barred by

limitation. When the plea of limitation was

set up as a defence, it was the duty of the

trial court to frame an issue for the same.

18. In the plaint, Ext.B1 sale deed

is sought to be declared as null and void.

The trial court dismissed the suit as a

whole on the ground of limitation. Before

the first appellate court, the decree was

reversed declaring the title of the

plaintiff over the plaint schedule R.S.A.No. 1066 of 2018

..27..

property. Ext.B1 sale deed was not

declared as null and void. However, the

title was declared and recovery of

possession was granted on the strength of

the title. The first appellate court went

wrong in declaring the title of the

plaintiff over the plaint schedule property

without setting aside Ext.B1 sale deed.

Further, the suit was not filed for

specific performance of contract on the

strength of Ext.A2 contract for re-

conveyance between the parties. The

validity of Ext.A2 agreement for re-

conveyance was not decided by the first

appellate court. What was involved in this

case was sale followed by a contemporaneous R.S.A.No. 1066 of 2018

..28..

agreement for re-conveyance of the

property. Such an agreement to re-convey

is an option contract and the right has to

be exercised within the period of the

limitation provided. In such an agreement

for re-conveyance, it is the duty of the

court to examine as to whether the time is

the essence of the contract. It is also

necessary to examine that when the

plaintiff has not filed the suit within the

time for re-conveyance, it would be

possible for him to seek a declaration that

the transaction of sale entered into

between the parties should be construed in

the light of Ext.A2 agreement for re-

conveyance executed by the defendant. R.S.A.No. 1066 of 2018

..29..

19. The first appellate court got

over the plea of limitation by pointing out

that the plaintiff has set up Ext.A2

agreement for re-conveyance, which was

refused to be performed by the defendant.

However, the suit was not filed for

specific performance. Ext.A2 sale deed

would show that the plaintiff received an

amount of Rupees ten lakh from the

defendant as consideration. The said

amount was admittedly not repaid. No

amount was repaid as stated in Ext.A2

agreement for re-conveyance. The suit was

filed long after the expiry of time

prescribed under Ext.A1.

20. Coming to the question whether R.S.A.No. 1066 of 2018

..30..

the plaintiff is entitled to a declaration

prayed for, as held by the first appellate

court, this Court has no hesitation to hold

that the first appellate court passed a

decree in favour of the plaintiff without

considering all the relevant issues

involved in the case. Even assuming that a

suit for declaration and recovery of

possession on the strength of title is

maintainable, still it is the duty of the

court to peruse the evidence regarding all

issues and pass a decree touching all the

issues involved.

21. Learned counsel for the

respondent contended that the trial court

specifically held that Ext.B1 document is R.S.A.No. 1066 of 2018

..31..

an invalid document executed only as a

security for payment of debt. According to

the learned counsel for the respondent, the

said finding has not been appealed by the

defendant and hence, the said finding has

become final.

22. In Shri Sourav Jain and another

v. M/s.A.B.P. Design and another [Civil

Appeal No.4448 of 2021 dtd.5th August,2021,

reported in 2021 SCC Online SC 552], the

Supreme Court held that a party in whose

favour a court had decreed the suit, can

challenge an adverse finding before the

appellate court without a cross-objection.

It is not necessary that a challenge to the

adverse finding of the trial court needs to R.S.A.No. 1066 of 2018

..32..

be made in the form of a memorandum of

cross objection.

23. In the case at hand, the trial

court dismissed the suit, though it

accepted the plaintiff's contention that

Ext.B1 sale deed was executed as a security

for payment of debt. The question of

validity of Ext.B1 was not considered by

the first appellate court on the ground

that the appellant did not file a cross-

objection against the finding of the trial

court. Referring to Order XLI Rule 22 of

the CPC, it was contended that a party in

whose favour the civil court has decreed a

suit, can raise arguments against the

findings without having to file a cross- R.S.A.No. 1066 of 2018

..33..

objection in the appeal.

            24.Addressing                  the            above

contentions,in           Shri       Saurav       Jain's   case

(supra),the          Supreme       Court     discussed     the

history and scope of Order XLI Rule 22(1)

of the CPC in paragraph 25 of the judgment

as follows:-

"25. It is apparent from the amended provisions of Order XLI Rule 22 CPC and the above authorities that there are two changes that were brought by the 1976 amendment. First, the scope of filing of a cross- objection was enhanced substantively to include objections against 'findings' of the lower court; second, different forms of raising cross-objections were recognised. The amendment sought to introduce different forms of cross-objection for assailing the findings and decrees since the amendment separates the phrase "but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour" from "may also take any cross-objection to the decree" with a semi colon. Therefore, the two parts of the sentence must be read disjunctively. Only when a part of the decree has been assailed by the respondent, should a memorandum of cross-objection be filed.

R.S.A.No. 1066 of 2018

..34..

Otherwise, it is sufficient to raise a challenge to an adverse finding of the court of first instance before the appellate court without a cross objection."

25. In view of the above, though

the appellant did not assail the findings

of the trial court on the issue of Ext.B1

sale deed before the first appellate court,

under order XLI Rule 22 either by filing a

memorandum of cross-objection or otherwise,

he is not precluded from raising an

argument before this Court, particularly

when mixed questions of facts and law arise

pursuant to the execution of Ext.B1 sale

deed and Ext.A2 contract for sale. Hence,

this contention is unsustainable.

26. The substantial questions of

law formulated for decision in this appeal R.S.A.No. 1066 of 2018

..35..

are thus answered as above.

For the foregoing reasons,this

second appeal is allowed. The impugned

judgment and decree of the first appellate

court are set aside and the suit is

remitted to the trial court for fresh

disposal. The trial court is directed to

frame additional issues regarding

limitation and validity of Ext.A2 agreement

for re-conveyance and decide the suit after

giving the parties an opportunity to adduce

evidence. The trial court is directed to

dispose of the suit finally within six

months from the date of receipt of a copy

of this judgment uninfluenced by the

observations and findings contained in this R.S.A.No. 1066 of 2018

..36..

judgment. There will be no order as to

costs. Pending applications, if any, stand

disposed of.

Sd/-

(N.ANIL KUMAR) JUDGE

MBS/=

CONTINUED AT PAGE 37 R.S.A.No. 1066 of 2018

..37..

RSA 1066/2018(B)

As per order dated 23.09.2021 in IA No.2/2021 in RSA 1066/2018(B), Paragraph No.9 of judgment dated 12.08.2021 in RSA 1066/2018(B) is corrected as 'Heard Adv.Sri.V.Philip Mathews, the learned counsel for the appellant and Adv.Sri.Rinny Stephen Chamaparambil, the learned counsel for the respondent'.

Sd/-

JOINT REGISTRAR