Kerala High Court
Abdul Rahiman V.K vs Sebiyulla on 25 September, 2024
RSA 60/2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946
RSA NO. 60 OF 2017
AGAINST THE JUDGMENT & DECREE DATED 30.7.2016 IN AS
NO.182/2013 OF ADDITIONAL DISTRICT COURT-I, PALAKKAD ARISING
OUT OF THE JUDGMENT & DECREE DATED 23.10.2013 IN OS NO.293 OF
2011 OF MUNSIFF COURT, ALATHUR
APPELLANT/RESPONDENT/DEFENDANT:
ABDUL RAHIMAN V.K.
AGED 51 YEARS, S/O.LATE KABEER,
KOTTAPARAMBIL HOUSE, CHANDAPURAYIL,
VADAKKANCHERRY P.O., VADAKKANCHERRY AMSOM & DESOM,
ALATHUR TALUK, PALAKKAD DISTRICT.
BY ADVS.
SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
RESPONDENT/APPELLANT/PLAINTIFF:
SEBIYULLA
AGED 39 YEARS,
S/O.LATE MUHAMMED IBRAHIM RAVUTHER,
BUSINESS,RESIDING AT TAJ MANZIL,
PULIKKODE PARAMBU, VADAKKANCHERRY AMSOM, DESAM &
POST,ALATHUR TALUK, PALAKKAD DISTRICT - 678101.
BY ADVS.
SRI.K.S.BHARATHAN
SRI.ABEL ANTONY
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
06.09.2024, THE COURT ON 25.09.2024 DELIVERED THE FOLLOWING:
RSA 60/2017
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C.PRATHEEP KUMAR, J.
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R.S.A.No.60 of 2017
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Dated : 25th September, 2024
JUDGMENT
This Second Appeal has been preferred by the respondent in
A.S.182/2013 on the file of the District Court, Palakkad against the judgment
and decree dated 30.7.2016 allowing the appeal and decreeing the Suit,
O.S.293/2011 on the file of the Munsiff's Court, Alathur. The appellant who is
the plaintiff filed the suit for a declaration that document No.2711/2011 of SRO,
Vadakkanchery was executed only as security towards the chitty amount due to
the defendant and that the defendant did not get any right, title or interest in
respect of the property therein and also for an injunction restraining the
defendant from trespassing into the plaint schedule property and from
committing waste therein etc.
2. The case of the plaintiff is that he had joined in three tickets of the
kuri conducted by the defendant for a total sum of Rs.1,50,000/-. He had bid the
kuri and received a sum of Rs.1,00,000/- being the value of two tickets, after
deducting the commission due to the defendant, on condition that he shall remit
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the future instalments within a period of 350 days. As security for prompt
repayment of the instalments, as demanded by the defendant, and having no
other alternative, he had executed document No.2711/2011 of SRO,
Vadakkanchery in favour of the defendant, on condition that he will re-convey
the property on payment of the remaining instalments. In spite of the execution
of the above document, the plaintiff along with his family continued to reside in
the residential building situated in the plaint schedule property. He never had
any intention to convey the schedule property in favour of the defendant.
Though he was entitled to get the amount covered by the third ticket also, it was
not paid by the defendant. Therefore, the plaintiff requested the defendant to
adjust the amount due to him on the basis of the third ticket, in future
instalments. However, the defendant insisted the plaintiff to repay future
instalments and in that respect there was wordly altercation between them.
Thereafter, the defendant threatened the plaintiff to alienate the plaint schedule
property and it was in the above context that he filed the present suit. The
defendant would contend that the execution of document No.2711/2011 has
nothing to do with the chitty conducted by him. According to him, the above
document was executed by the plaintiff after receiving due consideration and
therefore he prayed for dismissing the suit.
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3. The trial court framed necessary issues. The evidence in the case
consists of oral testimony of the plaintiff as PW1 and Exts.A1 to A3 on the side
of the plaintiff. On the side of the defendant, the defendant was examined as
DW1 and Exts.B1 to B6 marked. Exts.C1 and C1(a) were marked as court
exhibits. After appreciating the available evidence, the trial court dismissed the
suit. However, the 1st appellate court reversed the finding of the trial court and
decreed the suit. It was in the above context, the plaintiff approached this Court
by filing this Second Appeal raising various contentions.
4. At the time of admission, this Court has formulated a substantial
question of law. However, after hearing both sides at length, this court found it
necessary to re-formulate the substantial questions of law as follows :-
(i) Whether the absence of a prayer for setting aside Ext.A2(B1)
sale deed is fatal to the plaintiff's case ?
(ii) Whether the finding of the First Appellate Court that
Ext.A2(B1) is a sham document is justified, in the light of the
evidence on record ?
5. Thereafter, both sides were again heard in detail on those questions
of law. One of the contentions raised by the appellant/defendant is that absence
of a prayer for setting aside the sale deed No.2711/2011 is fatal to the plaintiff's
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case. Relying upon Section 31 of the Specific Relief Act, the learned counsel
would argue that in the light of the pleadings in the plaint, the prayer for setting
aside the above sale deed was absolutely necessary. On the other hand, the
learned counsel for the respondent/plaintiff would argue that the prayer for
declaration sought for in the plaint is sufficient in the light of the contentions
raised in the plaint.
6. Section 31 of the Specific Relief Act reads as follows :-
When cancellation may be ordered
(1) . Any person against whom a written instrument is void or
voidable, and who has reasonable apprehension that such
instrument, if left outstanding may cause him serious injury, may sue
to have it adjudged void or voidable; and the court may, in its
discretion, so adjudge it and order it to be delivered up and
cancelled.
(2). If the instrument has been registered under the Indian
Registration Act, 1908 (16 of 1908), the court shall also send a copy
of its decree to the officer in whose office the instrument has been so
registered; and such officer shall note on the copy of the instrument
contained in his books the fact of its cancellation.
7. Section 34 of the Specific Relief Act reads thus :-
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Discretion of court as to declaration of status or right
Any person entitled to any legal character, or to any right as to any
property, may institute a suit against any person denying, or
interested to deny, his title to such character or right, and the court
may in its discretion make therein a declaration that he is so
entitled, and the plaintiff need not in such suit ask for any further
relief:
Provided that no court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration
of title, omits to do so.
8. The specific case of the plaintiff is that he had executed document
No.2711/2011 which was marked as Ext.A2 (B1) as security for the prompt
repayment of the chitty amount due to the defendant and it was never intended
to be acted upon. Further, according to him, at the time of executing Ext.A2
document, the parties never intended to convey the plaint schedule property in
favour of the defendant and no consideration was received towards price of the
plaint schedule property. The learned counsel for the plaintiff would argue that
Section 31 of the Specific Relief Act would apply only with respect to a written
statement which is void or voidable, which is not applicable in the present case.
According to him, Section 34 is wide enough to cover any right as to any
property against any person denying or interested to deny his title to such right.
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9. In the decision in Ningawwa v. Byrappa Shiddappa Hireknrabar
and Others [AIR 1968 SC 956], in paragraph 5, the Apex Court held that:
"The legal position will be different if there is a fraudulent
misrepresentation not merely as to the contents of the document out as
to its character. The authorities make a clear distinction between
fraudulent misrepresentation as to the character of the document and
fraudulent misrepresentation as to the contents thereof. With reference
to the former, it has been held that the transaction is void, while in the
case of the latter, it is merely voidable."
10. In this case, the plaintiff has no case that in the execution of Ext.A2
document there was any fraudulent misrepresentation as to the contents of the
document or as to its character. In the light of the pleadings in the plaint, it can be
seen that the plaintiff has no case that Ext.A2 document is either void or
voidable. On the other hand, according to him, he happened to execute it as
security for prompt repayment of the chitty amount covered by two tickets in
the chitty conducted by the defendant and bid by him and the understanding was
to re-convey the property on repayment of the entire future instalments. His case
is that it is a sham document, not intended to be acted upon. In the light of the above
pleadings in the plaint, it is to be held that absence of prayer for cancellation of
Ext.A2 is not fatal to the plaintiff's case, as there is a prayer for declaration that
the said document is executed only as security for the chitty amount.
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11. As argued by the learned counsel for the defendant, a registered
document carries with it a presumption that it is a genuine and validly executed
one. In the decision in Bhasy v. Thoman [2022 (4) KLT 624], relied upon by
the learned counsel for the appellant, a Single Judge of this Court relied upon
the decision of the Hon'ble Supreme Court in Vimal Chand Ghevarchand Jain
and Others v. Ramakant Eknath Jadoo [(2009) 5 SCC 713], in which the
Apex Court held that, "a registered sale deed carries a presumption that the
transaction was a genuine one and that if the execution of sale deed is proved,
onus is on the defendant to prove that the deed is not executed and it was a
sham document."
12. In the decision in Prem Singh and Others v. Birbal [2006 (5)
SCC 353], the Apex Court held that the burden is on the person who challenges
the validity of a registered document. In paragraph 27 the court held thus:
"27.There is a presumption that a registered document is validly
executed. A registered document, therefore, prima facie would be valid
in law. The onus of proof, thus, would be on a person who leads
evidence to rebut the presumption."
13. At the time of evidence, the defendant would admit that he has
been conducting chitty and also that the plaintiff had joined in the said chitty.
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According to him, the plaintiff had joined only in two tickets and not in three,
as claimed by him. He would also admit that the plaintiff has bid those two
tickets and the chitty amount was also disbursed to the plaintiff after deducting
his commission. Further, according to the defendant, there is no registration for
the chitty and also that he never used to insist for any security for repayment of
future instalments, as it was only a friendly chitty conducted on mutual respect.
14. In the written statement, the contention taken by the defendant is to
the effect that at the time of executing Exhibit A2 document, no amount was due
from the plaintiff to the defendant. In paragraph 4 of the written statement, the
defendant specifically contended that there was no arrears of Kuri subscription
payable by the plaintiff. However, at the time of evidence, the defendant
admitted that out of the total 30 subscribers, everybody except the plaintiff had
repaid the entire instalments. Therefore, the contention taken by the defendant
that at the time of executing Exhibit A2, no amount was due to him from the
plaintiff, appears to be not correct. Further, the contention taken by the
defendant that when he advanced the bid amount to the subscribers of the chitty
he never used to obtain security from them, cannot be believed without a pinch
of salt.
15. Exhibit A2 document (Exhibit B1) was executed on 19.8.2011.
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Exhibit B2 (Exhibit A1) is the title deed of the plaintiff namely, the assignment
deed No.1249/11 dated 11.4.2011. It shows that the plaintiff executed Exhibit
A2 in favour of the defendant just four months and one week after he purchased
the said property. In spite of the fact that the plaintiff executed Exhibit A2 in the
form of a sale deed in favour of the defendant, the plaintiff along with his family
continued to be in possession of the plaint schedule property and continued to
occupy the residential building therein. However, the claim with regard to the
continued possession of the plaintiff over the plaint schedule property, was
disputed by the defendant.
16. In Exhibit C1 Commission Report, the Commissioner reported that
when he visited the schedule property, it was found that the plaintiff and his
family were residing in the residential building therein. In order to get over the
situation, the defendant has taken a contention that on 20.8.2011, the day next to
the execution of Exhibit A2, he had rented out the residential building in the
plaint schedule property in favour of Sulaiman, the brother of the plaintiff on a
monthly rent of Rs.1,000/-. He would further contend that the brother of
plaintiff might have permitted the plaintiff to reside in the building in the plaint
schedule property. In paragraph 10 of the written statement, the defendant
contended that the household items noticed by the Commissioner in Exhibit C1
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report belongs to the plaintiff's brother Sulaiman. He would also claim that a
rent deed was executed between himself and Sulaiman on 20.8.2011.
17. Exhibit B7 is a rent deed dated 20.8.2011 allegedly executed
between the defendant and one Sulaiman, as per which the defendant rented out
the residential building in the plaint schedule property to Sulaiman for a
monthly rent of Rs.1,000/-. The plaintiff seriously disputed the genuineness of
Exhibit B7. Even then, the defendant has not examined the above Sulaiman or
any other witness to prove the due execution of Exhibit B7.
18. In order to disprove the above contention raised by the defendant,
the plaintiff has filed I.A. No.2 of 2024 before this court under Order XLI Rule
27 CPC and produced two documents and prayed for accepting those documents
in evidence. No written objection was filed by the defendant to I.A. No.2/2024.
The documents produced along with the above I.A. are certified copy of plaint
in O.S No.354 of 2019 on the file of Munsiff's Court, Alathur as well as
certified copy of the written statement filed by the defendants in that suit. The
above suit is seen filed by the appellant herein against the respondent and his
wife for recovery of possession of the plaint schedule property. In the above
suit, the defendant herein contended that he had purchased the plaint schedule
property therein from the plaintiff herein, that he had permitted the plaintiff
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herein and his wife to occupy the house situated in the plaint schedule property
for a period of three months, that they failed to vacate the plaint schedule house
and filed the present suit O.S. 293 of 2011 for canacellation of the document
executed in his favour etc. In the above suit, the defendant has no case that he
had rented out the residential building in the plaint schedule property to
Sulaiman, but his case is that even after execution of Exhibit A2, he permitted
the plaintiff herein to continue to occupy the residential building therein.
19. Therefore, as argued by the learned counsel for the plaintiff, the
contention taken by the defendant in the present suit as well as in O.S. 354 of
2019 are contradictory to each other. Since the above suit is also between the
same parties and in respect of the very same subject matter, those documents are
relevant for a just decision of this appeal. The above suit was filed in the year
2019, after he filed this Second Appeal. Therefore, these documents could not
have been produced in the present suit or even along with this second appeal. In
the above circumstances, I.A. No.2 of 2024 is liable to be allowed and the
additional documents produced are liable to be marked. In the result, I.A. No.2
of 2024 is allowed and the above two documents are marked as Exhibits A4
and A5 respectively.
20. As I have already noted above, in Exhibit A4 suit filed by the
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defendant against the plaintiff for eviction, there is no mention about Exhibit
B7. In the above suit, the defendant herein has no case that Sulaiman is the
tenant in the plaint schedule property. On the other hand, in that suit his case is
that in spite of the execution of Ext.A2, the plaintiff was permitted to reside
therein for a period of 3 months. The above stand taken by the defendant in
Ext.A4 suit probabilises the plaintiff's case further. Non-mentioning about
Exhibit B7 in Exhibit A4 suit also improbabilises the defence case and
probabilises the plaintiff's case that Exhibit A2 is a sham document. Further,
Exhibit A4 and A5 probabilises the plaintiff's case that in spite of execution of
Exhibit A2, he continued to occupy the schedule property including the
residential building situated therein.
21. It was argued by the learned counsel for the plaintiff that failure of
the defendant to produce the original of the prior document is to be viewed with
suspicion. In this case, both sides have not produced the original of the prior
deed Exhibit A1 (Exhibit B2), whereas both sides produced its certified copy.
22. In the decision in Appaiya v. Andimuthu [2023 KLT OnLine
1797 SC], relied upon by the learned counsel for the defendant, the Apex Court
held that, since Section 77 of the Evidence Act provides for production of
certified copy of a public document as secondary evidence in proof of contents
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of its original, non-production of the original is not fatal.
23. In Exhibit A2, it is specifically stated that prior deed is also handed
over to the defendant along with Exhibit A1. According to learned counsel, the
original was produced before the Bank for availing loan and that is why the
certified copy alone was produced in this case. The plaintiff has no case that the
original of Ext.A1 is in his possession. Therefore, the contention of the
defendant that the original document is produced in bank could not be
disbelieved. Since Ext. A2 is a registered document and the law permits
production of its certified copy to prove its contents, the non-production of the
original, in the facts of this case, is not fatal.
24. It is true that after obtaining Ext.A2, the defendant has effected
mutation in his favour. However, the law is well settled that entry in revenue
records will not confer title in immovable property and as such mutation
effected by the defendant in his favour is of no consequences, in determining the
dispute involved in this case.
25. Relying upon the decision of a Single Judge of this Court in
Moosa v. Moideen [2001 KHC 72], it was argued that there is a presumption
regarding the validity and genuineness of registered documents. In the above
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case, the learned Single Judge further held that, when the plaintiff contends that
a document was executed as security for a loan, there should be a prayer for re-
conveyance of the property.
26. In the decision in State Bank of India, Asset Recovery
Management Branch, Ernakulam v. Niyas and another, 2021 (2) KHC 18,
a Division Bench of this Court also held that in such cases, the remedy of the
aggrieved party is to sue for re-conveyance of the property.
27. However, relying upon an earlier Division Bench decision of this
Court in George and Another v. Annakutty and Others, 2017 (4) KHC 742,
the learned counsel for the plaintiff would argue that a suit for declaration is
maintainable. In the decision in George and Another (supra), the plaintiff filed a
suit for declaration that the document executed was a sham document and not
intended to be acted upon. After relying upon various decisions of the Apex
Court, in paragraph 13, the Division Bench held that:
13. Therefore, as held by the Apex Court, a party is entitled to show
that the transaction as recorded in the document was never intended to
be acted upon and that the document is a sham one. In the case at hand
also, the vendors do not rely upon Ext A1 and attempt to vary its terms,
but it is the contention that Ext A1 was never intended to be acted
upon. According to the vendors the real transaction between the parties
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was some other agreement not recorded in the document. In Hathika v
Padmanabhan (1994 [1] KLT 345) a learned Single Judge of this
Court held that the bar of Section 92 of the Evidence Act applies when
a party seeks to rely upon the document embodying the terms of the
transaction and that the bar is not applicable when it is the case of the
party that the transaction recorded in the document was never intended
to be acted upon and that the document is a sham one. We do not think
that it is necessary to multiply authorities. It is open to a party to
contend that a document executed by him purporting to be a sale deed
is only a fictitious or a nominal transaction and that it was never
intended to be acted upon and that the transaction between the parties
was an entirely different one."
28. In the decision in Thankachan v. V. Gireesh Kumar, 2022 (1)
KHC 521, another Division Bench of this Court reiterated the decision in
George (supra) and held that oral evidence can be permitted to be adduced in
support of the contention that a document executed is a sham document and that
by virtue of that document, the respondent does not acquire any right or title
over the disputed property.
29. In Ramlal and Others v. Phagua and others, AIR 2006 SC 623,
plaintiff filed a suit for declaration that the sale deed executed by her was only a
nominal sale and she continues to be the owner of the suit land. Though the
trial court and the First Appellate Court dismissed the suit, the High Court
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decreed the same and it was confirmed by the Hon'ble Supreme Court. In
Gangabai v. Chhabubai, AIR 1982 SC 20, also a suit for declaration to declare
a sale deed executed by the plaintiff as a sham document, was held
maintainable. In the light of the above decisions of the Hon'ble Supreme Court
and the decisions of the Division Benches of this court in George (supra) and
Thankachan (supra), if the plaintiff could prove that Ext.A2 document is a sham
one and that by virtue of that document no title passed on to the defendant, the
prayer for declaration is enough and there is no necessity for a prayer for re-
conveyance.
30. The sale consideration shown in Exhibit A2 is Rs.1,10,000/-. At the
time of evidence, the defendant has taken a contention that he had in fact paid a
total consideration of Rs.6,75,000/-. However, he has not offered any
explanation for showing a much lesser consideration in Exhibit A2, if he had
actually paid Rs.6,75,000/-, as claimed. At the same time, the defendant is
claiming title over the plaint schedule property solely based on Ext.A2 (Ext.B1),
a registered document. In the above circumstance, he could not be heard to say
anything against its contents, in the light of the bar under S.92 of the Evidence
Act. Moreover, he could not adduce any evidence against the contents of Ext.A2
including that he had paid Rs.6,75,000/- to the plaintiff, as claimed in the
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written statement. Further, no effort was made to prove the above claim. Since
in Exhibit A2, the consideration shown is Rs.1,10,000/- and the defendant could
not prove the contention taken in the written statement that he has paid a
consideration of Rs.6,75,000/-, the above circumstance only improbablises the
defendant's case and probablisies the plaintiff's case that Exhibit A2 is a sham
document.
31. In the light of the above discussions, it can be seen that the trial
court as well as the First Appellate Court were perfectly justified in decreeing
the suit. There is absolutely no reason to hold that the findings of the trial court
as well as the First Appellate Court are not in tune with the evidence available
on record, much less, perverse. I do not find any valid grounds to interfere with
the concurrent findings of the trial court as well as the First Appellate Court, so
as to call for any interference. Therefore, this Regular Second Appeal is liable
to be dismissed. Points 1 and 2 answered accordingly.
In the result, this Regular Second Appeal is dismissed. Considering the
facts, I order no costs.
Sd/-
C. Pratheep Kumar, Judge
Mrcs/sou/10.9.
