Kerala High Court
Abraham Kurien vs Mathew Oommen on 9 July, 2025
RFA. No. 642/2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 9TH DAY OF JULY 2025 / 18TH ASHADHA, 1947
RFA NO. 642 OF 2016
AGAINST THE JUDGMENT AND DECREE DATED 23.08.2016 IN OS
NO.111 OF 2012 OF SUB COURT, THIRUVALLA
APPELLANT/PLAINTIFF:
ABRAHAM KURIEN
AGED 47, S/O.A.K.ABRAHAM,
AYIROORKUZHIYIL,CHATTANKARI P.O.,
CHATTANKARI MURI,PERINGARA VILLAGE,
THIRUVALLA TALUK.
BY ADVS.
SHRI.M.RAJENDRAN NAIR
SMT.M.SANTHY
RESPONDENT/DEFENDANT:
MATHEW OOMMEN
AGED 53, S/O.OOMMEN, M.C.HOUSE,
THUKALASSERI MURI, THIRUVALLA VILLAGE,
PATHANAMTHITTA DISTRICT, PIN 689 111,
NOW RESIDING AT 925, GREEN PONDOOR,
GARLAND, TEXAS, 75040, U.S.A.
BY ADVS.
SMT.NIDHI ABRAHAM
SHRI.SHEHIN S.
SMT.SHIJI P.S.
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
09.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RFA. No. 642/2016
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JUDGMENT
Dated this the 9th day of July, 2025
The plaintiff in OS. No.111 of 2012 on the file of the Subordinate
Judge, Thiruvalla, is the appellant. (For the purpose of convenience, the
parties are referred to as per their rank before the trial court.)
2. The plaintiff filed the suit for realisation of money. As per the
plaint averments, the plaintiff purchased 30.96 Ares of property from the
defendant as per Exhibit A1 sale deed No.553/2008 dated 18.2.2008
from defendant, paying a total consideration of Rs.1,33,82,250/-. In the
sale deed, it was specifically stated that 30.96 Ares of property was
assigned and possession of the same was handed over to the plaintiff.
On 18.6.2011, the plaintiff received a notice from the Additional
Tahsildar in respect of mutation of the property in favour of one Abdul
Huq. On enquiry, it was revealed that the defendant transferred 1.5
cents of property from the one agreed to be sold to the plaintiff, before
the execution of Exhibit A1. According to the plaintiff, the above
conduct of the defendant amounts to breach of trust and cheating and he
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filed the suit for realisation of proportionate price of 1.5 cents of
property.
3. The defendant filed a written statement contending that the
plaintiff himself had made all the preparations for execution of Exhibit
A1. The defendant was in USA and all the documents were given to the
plaintiff and the plaintiff himself had prepared the sale deed after getting
legal advice and getting encumbrance certificate. The fact that 1.5 cent
was already sold to Abdul Huq was within the knowledge of plaintiff. If
there is any mistake in the sale deed, it is due to the fraudulent act of the
plaintiff. The property was measured before the execution of the sale
deed and the consideration fixed was lump-sum amount for the property
owned by the defendant. The plaintiff purchased the property with open
eyes and with full knowledge on all facts. Therefore, the defendants
prayed for dismissing the suit.
4. The trial court framed two issues. The evidence in the case
consists of oral testimonies of PW1 and DWs 1 to 8 and Exhibits A1 to
A12, B1 to B7 and X1 to X3. After evaluating the evidence on record,
the trial court dismissed the suit with costs. Being aggrieved by the
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above judgment and decree of the trial court, the defendant preferred
this appeal.
5. Now, the point that arises for consideration is the following:
Whether the plaintiff is entitled to realise the value of
1.5 cents of property as claimed?
6. Heard Sri. M. Rajendran Nair, the learned counsel for the
appellant and Smt.Nidhi Abraham, the learned counsel for the
respondent.
7. The point: The plaintiff purchased landed property from the
defendant as per Exhibit A1 sale deed on 18.2.2008 after paying a
consideration of Rs.1,33,82,250/-. The extent of property mentioned in
Exhibit A1 is 30.96 Ares. From the evidence it is revealed that on
24.1.2008 the plaintiff assigned 1.5 cents of property to one Abdul Huq
as per Ext.A2 document. According to the plaintiff, the above 1.5 cents
of property assigned by the defendant to Abdul Huq was also part and
parcel of 30.96 cents mentioned in Exhibit A1. On the other hand,
according to the defendant, while he was in USA, all the arrangements
for execution of the sale deed was made by the plaintiff himself and he
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was aware of the assignment of 1.5 cents of property in favour of Abdul
Huq and mistake if any crept in Exhibit A1 is solely due to the default
of the plaintiff.
8. At the time of evidence, it is revealed that the defendant was
employed in USA and he came to India just before the execution of
Exhibits A1 and A2 documents. It is also revealed from the evidence on
record that before the execution of the document, the property was
measured in the presence of representatives of both sides and they were
convinced about the extent of property available at the site. Though it is
admitted that the property was measured before the execution of Ext.A1
sale deed, from the side of the plaintiff, no sketch was produced.
However, from the side of the defendant, Exhibit B6 sketch prepared by
DW8, Head Surveyor and Exhibit B7 notes prepared by DW8 at the
time of measurement were produced. At the time of examination DW8
deposed that he is not remembering the exact date on which he
measured the property and also not remembering the name of the
person, at whose instance he measured the property. However, he
admitted that Exhibit B6 is the sketch prepared by him after measuring
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the property involved in this case and Exhibit B7 is the measurements
noted by him at the time of measurement. In Exhibit B6, the extent of
property shown is only 29.500 Ares (73.500 cents) while in Exhibit B7,
the extent shown is 29.73 Ares and 73.500 cents.
9. During the course of examination of DW8, not even a
suggestion was put to him to the effect that Exhibit B7 was not prepared
by him in connection with the measurement of the property involved in
this case. However, with regard to Exhibit B6, it was suggested that
such a sketch was prepared subsequently at the instance of the
defendant. Since both sides admitted that before the execution of the
sale deed DW8 measured the property to ascertain the extent of the
property available at the site and no other sketch was produced from the
side of the plaintiff, there is every reason to believe that Exhibit B6 and
B7 are the sketch and the measurements taken by DW8 while measuring
the disputed property. In Exhibits B6 and B7, the extent of property
available at the site was shown as 73.500 cents. It is true that in writing
the extent in Ares, there is little difference between Exhibit B6 and B7.
In Exhibit B6, it is shown as 29.500 Ares while in Exhibit B7 it is shown
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as 29.73 Ares. However, in both Exhibit B6 and B7, the area in cents is
the same, namely 73.500 cents. Since the validity of Exhibit B7 was not
challenged during the cross examination of DW8, in effect, the plaintiff
has not challenged the validity of Exhibit B6 also as the area of the
property shown in both those documents was 73.500 cents.
10. It is true that in Exhibit A1, the extent of the property shown
is 30.96 Ares corresponding to more than 75 cents. However, at the time
of evidence, it is revealed that Exhibit A1 sale deed was prepared by the
learned counsel, who was appearing before the trial court on behalf of
the plaintiff. It is also revealed at the time of evidence and arguments
that on behalf of the plaintiff, who was also not in station, all the
arrangements were made by his lawyer, who prepared Exhibit A1 sale
deed. Therefore, it is evident that the property was measured by DW8 in
the presence of the plaintiff's counsel and the representative of the
defendant and hence he was convinced at the time of measurement that
the extent of property available at the site was only 73.500 cents, as
noted in Exts.B6 and B7. Since the defendant was in USA and he came
only just before the execution of the document and all the instructions
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were given for the preparation of the sale deed by the plaintiff and the
plaintiff's counsel prepared the same after verifying all the records, the
defendant cannot be found fault with for the mistake, if any crept in the
sale deed.
11. The learned counsel for the plaintiff would argue that part
payment was effected by the plaintiff to the defendant on 21.1.2008 and
it was thereafter the defendant executed Exhibit A2 sale deed in favour
of Abdul Huq on 24.1.2008 and that the said fact was suppressed from
the plaintiff and as such the defendant is bound to account for the
deficiency in the extent of property. It is true that on 21.1.2008, the
plaintiff made part payment and only thereafter Exhibit A2 was executed
in favour of Abdul Huq.
12. On a perusal of Exhibit A2 sale deed, it can be seen that the
above 1.5 cents is a septic tank used by Abdul Haq and attached to the
residential building of Abdul Huq. From Exhibit X2(a) sketch, it can be
seen that the above 1.5 cents having a length of 9.1 metres on north,
10.9 metres on the south, 6.9 metres on the west and 5.30 metres on the
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east is a rectangular portion protruding into the remaining property in
the possession of Abdul Huq. Therefore, it was argued that, at the time
of measurement, the portion of the septic tank was excluded.
Admittedly, the entire property is surrounded by compound wall. Since
the extent of property shown in Exhibit B6 and B7 is only 73.5 cents, it
is to be presumed that at the time of measurement, the above 1.5 cent, in
which the septic tank of Abdul Huq is situated, was excluded and that is
why there is shortage in the extent of property in Exhibit B6 and B7.
13. Even after getting convinced that the extent available is only
73.500 cents, if in the sale deed prepared by the plaintiff's counsel, the
extent is shown as 30.96 Ares (more than 75 cents), the blame cannot be
put on the defendant, who was not in station at the time of measurement.
In this context, it is also to be noted that Exhibit A1 was prepared in
English and the extent is shown only in Ares and not in cents. At the
time of arguments, it is revealed that the septic tank present in the above
1.5 cents of property is more than 40 years old and it is for that area the
plaintiff filed this suit claiming damages. From the available evidence,
it is revealed that the property purchased by the plaintiff was only the
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property measured and shown in Exhibit B6 and B7 and it is only 73.5
cents and as such I do not find any merits in the contention of the
plaintiff that the defendant sold 1.5 cents of property to Abdul Haq from
the one agreed to be sold to him.
14. Relying upon the decision of a Division Bench of this Court in
Gouri Amma v. Kesavan (AS 95/1979 decided on 13.6.1985), the
learned counsel for the appellant argued that the seller has a duty to
disclose about any defect in his title. In support of his argument, he has
also relied upon the decision of Allahabad High Court in Smt. Rekha
Sahu v. The UCO Bank and Others (WPC 11774/2010) and the
decision of the Hon'ble Supreme Court in V Anantha Raju v. T.M.
Narasimhan (Civil Appeal No.6469/2021).
15. It is true that the seller has a duty to disclose to the buyer any
defect in his title. In the decision in Smt. Rekha Sahu (supra), with
respect to the property, there was arrears of tax including house tax,
other municipal taxes as well as electricity dues while it was represented
that the property was free from all encumbrances.
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16. As I have already noted above, in the instant case, the property
was measured in the presence of the representative of the plaintiff and
he was convinced about the extent of the property available and as such
in the facts of this case, the above decisions have no application.
17. In the light of the above discussions it can be seen that there
was no cheating on the part of the defendant as alleged and as such the
trial court was justified in dismissing the suit. I do not find any
irregularity or illegality in the above finding of the trial court so as to
call for any interference. Point answered accordingly.
18. In the result, this appeal is dismissed. Considering the facts, I
order no costs.
All pending interlocutory applications shall stand closed.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
