Kerala High Court
Sivan vs Sivadasan on 25 September, 2024
RSA 502 & 503 of 2016
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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. 502 OF 2016
AS NO.47 OF 2012 OF ADDITIONAL DISTRICT COURT-II,
MAVELIKKARA
OS NO.217 OF 2004 OF MUNSIFF COURT,HARIPAD
APPELLANTS/APPELLANTS/DEFENDANTS
1 SIVAN, AGED 50 YEARS
S/O.MADHAVAN, RESIDING IN THATAYIL VEEDU,
MUTHUKULAM, VADAKKUMMURI, MUTHUKULAM VILLAGE.
2 LETHIKA, AGED 46,
W/O.SIVAN, OF -DO- -DO-
BY ADV SRI.M.K.PRADEEPKUMAR
RESPONDENT/RESPONDENT/PLAINTIFF
SIVADASAN, AGED ABOUT 64 YEARS, S/O. VELAYUDHAN,
PUTHENCHIRAYIL, MANGALAM MURI, ARATTUPUZHA VILLAGE.
BY ADV SRI.V.PREMCHAND
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 10.9.2024, ALONG WITH RSA.503/2016, THE
COURT ON 25.9.2024 DELIVERED THE FOLLOWING:
RSA 502 & 503 of 2016
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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. 503 OF 2016
AS NO.222 OF 2011 OF ADDITIONAL DISTRICT COURT-II,
MAVELIKKARA
OS NO.53 OF 2004 OF MUNSIFF COURT,HARIPAD
APPELLANT/APPELLANT/PLAINTIFF
SIVAN, AGED 50 YEARS
S/O. MADHAVAN, RESIDING IN THATAYIL VEEDU,
MUTHUKULAM VADAKKUM MURI, MUTHUKULAM VILLAGE.
BY ADV SRI.M.K.PRADEEPKUMAR
RESPONDENT/RESPONDENT/DEFENDANT
SIVADASAN, AGED ABOUT 64 YEARS
S/O.VELAYUDHAN, PUTHENCHIRAYIL, MANGALAM MURI,
ARATTUPUZHA VILLAGE.
BY ADV SRI.V.PREMCHAND
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
10.9.2024, ALONG WITH RSA.502/2016, THE COURT ON 25.09.2024
DELIVERED THE FOLLOWING:
RSA 502 & 503 of 2016
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2024:KER:71372
C.PRATHEEP KUMAR, J.
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R.S.A.Nos. 502 & 503 of 2016
-------------------------------------------
Dated : 25th September, 2024
JUDGMENT
Both these Second Appeals were filed against the common judgment
passed by the Additional District Court-II, Mavelikkara in A.S.No.222/2011
and A.S.47/2012. Those first appeals were filed against the common judgment
of the learned Munsiff, Haripad, in O.S.53/2004 and O.S.217/2004. One Sivan
is the plaintiff in O.S.53/2004 and his brother-in-law (sister's husband)
Sivadasan is the defendant therein. In O.S.217/2004 Sivadasan is the plaintiff
and Sivan and his wife Lathika are the defendants. O.S.53/2004 is filed for
setting aside a document, declaration of title and possession and also for
injunction, while O.S.217/2004 was filed for recovery of arrears of rent and
also for eviction.
2. The subject matter in dispute in both the suits is the same, namely,
3.20 acres of landed property and a residential building situated therein. The
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plaint schedule property originally belonged to Sivan who obtained the same
as per gift deed No.1069-1992 and Release deed No.2291-1999 (Exts.B4 and
B3 respectively). He had availed a loan from LIC of India in the year 2000 for
the construction of a residential building in the said property. Since Sivadasan
had no sufficient service remaining, he arranged his friend Ammini Amma as
surety for the loan. According to Sivan, he is an illiterate person. Therefore,
while closing the loan, he had sought the assistance of his brother-in-law,
Sivadasan. At the instance of Sivadasan, he had affixed his signature in several
papers, purported to be for clearing the loan transaction. By misrepresenting
that, for the purpose of clearing the loan transaction a release deed is to be
executed, Sivadasan managed to obtain a document from him. All the
documents received from LIC, while discharging the loan liability were
obtained by Sivadasan from him. Later on, he came to understand that
Sivadasan managed to obtain a sale deed in respect of the plaint schedule
property, in his favour, by misrepresentation and cheating. The sale deed
obtained in favour of Sivadasan was not supported by any consideration and it
was obtained by misrepresentation as well as by cheating. Hence he filed the
Suit, O.S.53/2004 for setting aside the above sale deed, for declaration and for
injunction.
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3. On the other hand, according to Sivadasan, since Sivan could not
discharge the loan liability, notice was issued by LIC to the surety Ammini
Amma. Since Ammini Amma stood as surety at the instance of Sivadasan, she
approached him for clearing the loan. Since Sivan could not discharge the
liability, a mediation talk was held with Sivadasan, Ammini Amma, along with
parents and brothers of Sivadasan. In the discussion, it was decided to sell the
plaint schedule property and to discharge the loan liability due to the LIC.
Since the property was already mortgaged to LIC, nobody came forward to
purchase the same. Ultimately as requested by the relatives, Sivadasan agreed
to purchase the property for Rs.3,00,000/- and to discharge the liability due to
the LIC. Out of the total consideration of Rs.3,00,000/- he had paid
Rs.30,000/- to Sivan directly and the balance amount was paid to LIC for
discharging the loan. After discharging the loan liability, the documents were
released and since then he is the absolute owner of the plaint schedule
property. However, considering the fact that Sivan had no other place of
abode, he was permitted to continue in the building in the plaint schedule
property on rental arrangement, on a monthly rent of Rs.200/-. He had
terminated the tenancy by issuing a lawyer notice and in spite of demand for
surrendering vacant possession of the plaint schedule property, he failed to do
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so. Therefore, Sivadasan filed O.S.217/2004 for eviction and also for arrears
of rent. The learned Munsiff tried both the suits jointly and disposed of the
same as per common judgment dated 25.3.2011.
4. The evidence in the case consists of the oral testimonies of PW1
to 3 and DWs 1 to 9 as well as documentary evidence, Exts.A1 to A4 and B1
to B19. Exts.C1 series and C2 series were marked as court exhibits. After
evaluating the evidence on record, the learned Munsiff dismissed O.S.53/2004
and decreed O.S.217/2004, directing Sivan to vacate the building in the plaint
schedule property within three months and on failure, the plaintiff therein was
allowed to evict him from the plaint schedule property. He was also allowed
to realise a total sum of Rs.10,800/- being the value of a coconut tree and a
mango tree cut and removed from the plaint schedule property. Permanent
prohibitory injunction was also granted against trespass into the property and
from obstructing the peaceful possession of the plaintiff therein. Further,
arrears of rent of Rs.1800/- was also awarded to the plaintiff with a permission
to realise occupation charge at the rate of Rs.200/- per month from the date of
suit till eviction. The first appellate court confirmed the dismissal of
O.S.53/2004. However, the decree in O.S.217/2004 was partly modified and
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the prayer for recovery of damages was disallowed and the remaining portion
of the decree was confirmed. Dissatisfied with the above judgment and decree
of the first appellate court, Sivan and his wife preferred these Second Appeals
raising various contentions.
5. At the time of admission, a question of law was formulated by
this Court. However, after hearing both sides at length, this Court found it
necessary to reformulate the question of law as under :
"Whether the findings of the trial court as well as the First
Appellate Court are perverse ?"
6. Thereafter, both sides were again heard in detail, on the above
question of law.
7. The respondent Sivadasan is the brother-in-law of appellant
Sivan. The specific case of the appellant is that he is an illiterate person while
the respondent is a Government servant. At the time of evidence, it is revealed
that the respondent also has only elementary education and he was working in
Health Department. Admittedly, the appellant has availed a loan of Rs.2.25
Lakhs from the LIC. It is also revealed that the surety Ammini Amma was
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arranged by the respondent, as his remaining service was very short. It is also
revealed that the appellant could not repay the loan amount in time and the
same fell in arrears. When the appellant defaulted repayment of the loan,
notice was issued to the surety Ammini Amma and at that time Ammini Amma
approached the respondent demanding to discharge the loan liability, in order
to avoid recovery from her salary. It is also revealed from the evidence of the
defence witnesses that when the respondent requested Ammini Amma to stand
as surety for the appellant, the respondent undertook to discharge the liability
in case any amount is realised from her salary. Accordingly, when notice was
issued to Ammini Amma, she approached the respondent and at first he had
executed Ext.B11 demand promissory note for Rs.2.25 lakhs in her favour on
1.9.2003. Thereafter, according to the respondent, he along with the appellant,
his brother and parents sat together, discussed the matter and finally decided to
sell the plaint schedule property and to discharge the liability due to the LIC.
Further according to him since no body was prepared to purchase the plaint
schedule property as it was subjected to mortgage, he has purchased it.
8. On the other hand, the specific case of the appellant is that he
himself has re-paid the entire loan amount. According to him, for the purpose
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of discharging liability, he sought the help of the respondent and at that time
the respondent misused his position as a close relative of the appellant and
managed to obtain a document (Ext.A1) in his favour, saying that it is a
'release deed', necessary for the purpose of closing the loan.
9. Though in the pleadings as well as in the proof affidavit the
appellant claimed that the respondent obtained Ext.A1 sale deed on the guise
of a 'release deed' required for the purpose of closing the loan, during the
cross-examination, he pleaded ignorance about the term 'release deed'. Even if
it is assumed that it is because of the illiteracy of the appellant, it is to be noted
that the appellant executed a registered document in the form of Ext.A1 in
favour of the respondent. According to the appellant, he had executed Ext.A1
without knowing its contents. However, DW5, the scribe who prepared
Ext.A1, in clear terms deposed that after preparing the document, it was read
over to the appellant and he understood the same before subscribing his
signature in the document. He would also swear that he had seen the appellant
receiving the price from the respondent at the time of its execution. However,
he clarified that he does not know the quantum of money paid by the
respondent to the appellant.
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10. According to the respondent, when Ammini Amma approached
him complaining that she had received recovery notice from LIC, at first he
had paid a sum of Rs.19,500/- directly to the LIC and handed over the receipt
to the appellant. Thereafter, as per the decision taken in the mediation talks, he
agreed to purchase the plaint schedule property from the appellant for a total
sum of Rs.3,00,000/-, as nobody else was prepared to purchase the same, as it
was mortgaged to LIC. About one month after the execution of Ext.A1, he had
discharged the liability due to LIC after selling the gold ornaments of his
daughter.
11. The respondent has produced Ext.B12 document and examined
DW7 to prove the sale of the gold of his daughter. DW7 would swear that he
know the respondent and also that he had helped the respondent to sell
440.750 grams of gold ornaments to one Settu for Rs.2,20,375/-. During the
cross-examination he stated that the gold ornaments covered by Ext.B12 were
actually brought by women. The above answer given by DW7 was relied upon
by the learned counsel for the appellant to show that the gold covered by
Ext.B12 was not sold by the respondent. It is true that in Ext.B12 the name of
the customer is not mentioned. However, DW7 clarified that it was the
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respondent who brought the gold for sale and Ext.B12 was issued to him.
From the above version of DW7 what is revealed is that along with the
respondent, women also came for selling the gold. Even according to the
respondent, the gold sold was that of his daughter. In the light of the fact that
the respondent himself has produced Ext.B12 receipt issued by DW7, there is
every reason to hold that the gold sold as per that document was none other
than the respondent.
12. Though the appellant claimed that he himself had discharged the
loan liability, he has no consistent case, as to how he mobilised the fund for
the said purpose. At one stage he would claim that he himself had arranged the
money, while at another stage he would claim that the fund was arranged by
his another brother-in-law (brother of his wife), by selling his immovable
property. However, the appellant has not produced any documents to prove the
sale of any such immovable property by his brother-in-law.
13. Finally, the cat was out of the bag, during the cross examination
of DW8, a co-worker of respondent. During the cross examination of DW8, a
question was asked to him, by the learned counsel for the appellant, as to who
had received the loan amount from LIC, to which he pleaded ignorance.
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When he deposed that the respondent told that in case the appellant defaults
repayment of the loan, the respondent will discharge the liability, a further
question was asked to him to the effect that; "ല ൺ ത ക ശ വദ സൻ
വ ങ എട തത കക ണല ല ൺ അടക ൻ തയ റ യത?" The
meaning of the above suggestion is to the effect that it was the respondent,
who had received the loan amount received from LIC and that is why he (the
respondent) had repaid the loan to the LIC. From the above suggestion put to
DW8, it is evident that the loan was repaid by the respondent himself to LIC.
In the pleadings or in the proof affidavit, the appellant has no case that the
loan amount from LIC was received by the respondent or that it was utilised
for the benefit of the respondent. On the other hand, his specific case is to the
effect that he availed loan from the LIC for constructing building in the plaint
schedule property. His further case is that he himself repaid the entire loan
amount due to the LIC.
14. The above suggestion put to DW8 cuts the very root of the
appellant's case that he himself had repaid the loan due to the LIC, since from
the above suggestion, it is revealed that it was the respondent who repaid the
loan. It is further revealed that the claim raised by the appellant that the
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respondent only helped him to repay the loan amount to LIC and to get back
the documents and also that he himself has repaid the loan to LIC are false. It
will further go to show that there is no merit in the contention of the appellant
that the respondent managed to obtain Ext.A1 sale deed in his favour by
misrepresentation and also by employing fraud. On the other hand, from the
evidence available, it can be seen that the version given by the respondent is
the more probable one.
15. In the above circumstance, the probability is that, when the
appellant wanted to avail loan from the LIC, the respondent being his brother-
in-law arranged his friend Ammini Amma as surety, at his own risk, after
giving undertaking to her that in case the appellant defaults, he himself will
discharge the liability. Further it is revealed that when recovery proceedings
were initiated against Ammini Amma, she approached the respondent and at
that time, the respondent had executed Ext.B11 promissory note for Rs.2.25
Lakhs in her favour. Further, from the evidence, it is revealed that when the
appellant could not repay the loan amount, in the negotiations held with the
family members, it was decided to sell the plaint schedule property and to
discharge the loan liability. Since the property was under mortgage, nobody
else came forward to purchase the plaint schedule property. Therefore, the
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probability is that, in the above context, the respondent has undertaken to
repay the loan and to purchase the schedule property for a total sum of
Rs.3,00,000/-. Out of which he had paid Rs.30,000/- to the appellant on the
date of execution of Ext.A1 and thereafter he has paid a total sum of
Rs.2,52,416/- to the LIC in addition to another Rs.19,500/- paid on an earlier
occasion. Therefore, it can be seen that it was in the above context, the
appellant, after receiving the entire documents from the LIC handed over the
same to the respondent and not that the appellant repaid the loan amount and
the respondent managed to obtain the documents from him fraudulently.
16. In the light of the above discussions, it can be seen that there is no
merits in the contention of the appellant that the respondent by misusing his
position as the brother-in-law of the appellant, managed to obtain Ext. A1 sale
deed in his favour by exerting misrepresentation as well as fraud. Therefore, it
can be seen that Ext.A1 sale deed is a validly executed document. Since Ext.
A1 sale deed was validly executed by the appellant in favour of the
respondent, the contention of the respondent that since the appellant had no
other place of abode, he had permitted him to continue to reside in the
building in the plaint schedule property also is to be believed. Execution of
Ext. B2 rent deed also substantiates the above conclusion.
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17. In the above circumstance, the impugned judgment and decree of
the trial court as confirmed by the First Appellate Court are perfectly in tune
with the evidence on record and not at all perverse. Therefore, I do not find
any merit in these appeals and as such these appeals are liable to be dismissed.
In the result, these appeals are dismissed. However, considering the
close relationship between the parties, I order no costs.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/sou/11.9.
