Allowed

Saji Daniel v. Santhoshji

Kerala HC22 Mar 2016RSA/1346/2010

Case brief

AI extract

What is this about?

In a second appeal concerning a suit for injunction, the High Court allowed the appeal and remitted the lower court order for fresh disposal alongside a related suit. The court held that reasons for the lower appellate court to declare sale deeds invalid were insufficient, emphasizing that title disputes warrant fresh trial when serious.

What did the court decide?

Second appeal allowed; O.S. No. 458/2003 remitted for fresh disposal along with O.S. No. 313/2008 for joint trial.

Saji Daniel Vs Santhoshji — Partition | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

¶4

TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938

¶5

RSA.No. 1346 of 2010 ( )

¶6

AGAINST THE JUDGMENT IN AS. NO.276/2005 OF SUB COURT,KOTTARAKKARA DATED 27-10-2010.

¶7

AGAINST THE JUDGMENT IN OS. NO.458/2003 OF MUNSIFF COURT, KOTTARAKKARA DATED 21/11/2005.

¶8

APPELLANTS/RESPONDENTS/DEFENDANTS 1 AND 2 AND ADDL. 3RD RESPONDENT IN THE LOWER APPELLATE COURT:

¶9

1. SAJI DANIEL, S/O.DANIEL, MULAMOOTTIL VEEDU, AYOOR MURI, EDAMULAKKAL VILLAGE.

¶10

2. GEORGE, MULAMOOTTIL, SAROJ VILLA, CHADAYAMANGALAM MURI, CHADAYAMANGALAM VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT.

¶11

3. SUJITH GEORGE, S/O. GEORGE DO. DO. REPRESENTED BY THE POWER OF ATTORNEY HOLDER THE 2ND APPELLANT, GEORGE, MULAMOOTTIL SAROJ VILLA, CHADAYAMANGALAM MURI, CHADAYAMANGALAM VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT.

¶12

BY ADVS. SRI.T.K.MARTHANDAN UNNITHAN,

¶13

SRI.V.JAYAKUMAR.

¶14

RESPONDENT/APPELLANT/PLAINTIFF:

¶15

SANTHOSHJI, S/O.KUNJU PILLAI, THENGUVILA VEEDU, THEKKE AMBALAKKARA, UMMANNOOR, VALAKOM VILLAGE, PIN-691 532.

¶16

BY ADVS. SRI.N.SUBRAMANIAM, SRI.M.S.NARAYANAN.

¶17

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

rs.

¶19

RSA.No. 1346 of 2010

¶20

APPENDIX

¶21

PETITIONER'S ANNEXURES:-

¶22

ANNEXURE I	COPY OF THE SCHEDULE DATED 10/01/2002 IN O.S.NO.7/2002 OF THE SUB COURT, KOTTARAKKARA.
ANNEXURE II	COPY OF THE ORDER DATED 28/07/2003 PASSED BY THE SUB COURT, KOTTARAKKARA.
ANNEXURE III	COPY OF THE RECEIPT DATED 28/08/2003 ISSUED BY PHILIPOSE THANKACHAN.
ANNEXURE IV	COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY THE SUB REGISTRY OFFICE.
ANNEXURE V	COPY OF THE NOTICE DATED 27/08/2005 PUBLISHED BY THE KFC.
ANNEXURE VI	COPY OF THE REPRESENTATION DATED 29/08/2005 SUBMITTED BY THE 2ND PETITIONER.
ANNEXURE VII	COPY OF THE JUDGMENT DATED 05/11/2004 IN O.P. NO.7140/1999.
ANNEXURE VIII	COPY OF THE JUDGMENT DATED 20/01/2006 IN WP(C).NO.26323/2005.
ANNEXURE IX	COPY OF THE ORDER DATED 03/04/2006 IN I.A. NO.4363/2006 IN WP(C).NO.26323/2005 OF THE HIGH COURT OF KERALA.
ANNEXURE X	COPY OF THE B DAIRY ISSUED BY THE SUB COURT, KOTTARAKKARA IN A.S. NO.276/2005.
ANNEXURE XI	COPY OF THE TAX RECEIPT DATED 11/07/2008.
ANNEXURE XII	COPY OF THE POSSESSION CERTIFICATE DATED 24/07/2008 ISSUED FROM THE VILLAGE OFFICE, VETTIKAVALA.
ANNEXURE XIII	COPY OF THE LEASE DEED DATED 01/01/2008 EXECUTED BY MOHANAN.
ANNEXURE XIV	COPY OF THE LEASE DEED DATED 02/01/2009 EXECUTED BY MOHANAN.
ANNEXURE XV	COPY OF THE LEASE DEED DATED 07/12/2009 EXECUTED BY MOHANAN. ....2/-

¶23

RSA.No. 1346 of 2010

¶24

ANNEXURE XVI	COPY OF THE LETTER DATED 03/12/2007 ISSUED BY THE KSE BOARD.
ANNEXURE XVI(A	) COPY OF THE LETTER DATED 07/06/2008 ISSUED BY THE KSE BOARD.
ANNEXURE XVI(B	) COPY OF THE RECEIPT DATED 05/12/2007 ISSUED BY THE KSE BOARD.
ANNEXURE XVI(C	) COPY OF THE RECEIPT DATED 16/06/2008 ISSUED BY THE KSE BOARD.
ANNEXURE XVII	COPY OF THE JUDGMENT DATED 04/11/2009 IN W.A. NO. 2415/2009 OF THIS HON'BLE COURT.
ANNEXURE A1	PHOTOGRAPH OF THE PROPERTY.
RESPONDENT'S	ANNEXURES :-

¶25

ANNEXURE A	COPY OF THE LIST OF DOCUMENT SALE DEED PURCHASED BY PETITIONERS IN THE ABOVE I.A. AND WHICH ARE PRODUCED IN O.S.313/2008 OF SUB COURT, KOTTARAKKARA (ALL OF SRO CHADAYAMANGALAM)-ANNEXURE A.
ANNEXURE II	COPY OF THE STAMPED RECEIPT.
ANNEXURE III	COPY OF THE ORDER.
ANNEXURE IV	COPY OF THE INSPECTION REPORT.
ANNEXURE V	COPY OF THE RECEIPT.
ANNEXURE VI	COPY OF THE MAHASSAR.
ANNEXURE VII	COPY OF THE ELECTRICITY BILL.
ANNEXURE VIII	COPY OF THE ELECTRICITY BILL.
ANNEXURE IX	COPY OF THE RECEIPT.
ANNEXURE X	COPY OF THE RECEIPT.
ANNEXURE XI	COPY OF THE AFFIDAVIT.
ANNEXURE XII	COPY OF THE RENT DEED.

¶26

....3/-

¶27

RSA.No. 1346 of 2010

¶28

ANNEXURE XIII COPY OF THE AGREEMENT. ANNEXURE XIV COPY OF THE PHOTOGRAPH. ANNEXURE XV COPY OF THE PHOTOGRAPH. ANNEXURE XVI COPY OF THE RECEIPT. ANNEXURE XVII COPY OF THE BUILDING TAX ASSESSMENT REGISTER. ANNEXURE XVIII COPY OF THE LETTER ISSUED BY THE VETTIKAVALA GRAMA PANCHAYATH.

//TRUE COPY//

P.S. TO JUDGE

rs.

P.B.SURESH KUMAR, J.

¶33

= = = = = = = = = = = =

¶34

R.S.A.No.1346 of 2010.

¶35

= = = = = = = = = = = =

¶36

Dated this the 22^nd day of March, 2016.

¶37

J U D G M E N T

¶38

Defendants 1 and 2 and the assignee of the first

¶39

defendant in a suit for injunction are the appellants in this

¶40

second appeal.

¶41

The second defendant is the brother of the

¶42

father of the first defendant. The suit property belonged to

¶43

the plaintiff. According to the plaintiff, as he was in debts, he borrowed money from defendants 1 and 2 and Exts.B1 and B2 documents have been executed in respect of the suit

¶44

property styling it as sale deeds towards security for the loans availed by him from defendants 1 and 2. It is the case of the plaintiff that though Exts.B1 and B2 documents have

¶45

been executed by him in favour of defendants 1 and 2 in respect of the suit property, in view of the arrangements entered into between him and defendants 1 and 2, he

¶46

¶47

RAS.No.1346/2010.

¶48

continued to be in possession of the property. It is alleged by the plaintiff that the defendants are attempting to trespass into the suit property and hence the suit seeking a decree of prohibitory injunction retraining the defendants from trespassing into the suit property.

¶49

3. The defendants resisted the suit contending that Exts.B1 and B2 are genuine sale deeds by which the plaintiff has transferred all his rights, title and interests in the suit properties to them and the plaintiff has no subsisting interest in the suit property.

¶50

4 . The plaintiff gave evidence as PW1. Three witnesses were examined on the side of the plaintiff as PWs.2 to 4. Exts.A1 to A14 are the documents produced by the plaintiff. The second defendant gave evidence as DW1 and the first defendant gave evidence as DW2. The documents produced by the defendants are Exts.D1 to D6.

¶51

5. The trial court, on an appraisal of the materials

¶52

on record, found that Exts.B1 and B2 are valid sale deeds

¶53

RAS.No.1346/2010.

¶54

and that the defendants 1 and 2 have acquired title to the suit property by virtue of the said documents. Consequently, the trial court non-suited the plaintiff holding that the defendants 1 and 2 are in possession of the suit property. The plaintiff took up the matter in appeal. During the pendency of the appeal, the first defendant transferred his interests in the suit property and the transferee, in the circumstances, was impleaded as the additional third respondent in the appeal. In the appeal, the plaintiff has produced a few additional documents. The additional documents produced by the plaintiff in the appeal include documents by which the defendants have re-conveyed properties of others which they have obtained by way of security while providing loans to the owners. The appellate court, having regard to the materials on record, as also the additional materials placed by the plaintiff in the appeal, allowed the appeal and dismissed the suit holding that the plaintiff is in possession of the suit property. Defendants 1

¶55

RAS.No.1346/2010.

¶56

¶57

and 2, who are aggrieved by the decision of the appellate court, have thus come up in this second appeal.

¶58

6 . Heard the learned counsel for the appellants as also the learned counsel for the respondent, the plaintiff.

¶59

7. While the appeal preferred by the plaintiff was pending, the plaintiff instituted a fresh comprehensive suit as O.S.No.313 of 2008 before the Sub Court, Kottarakkara for declaration of his title over the suit property and for a mandatory injunction directing the defendants to re-convey the suit property and the said suit is even now pending as the trial of the same has been stayed by this court in O.P. (C).No.1188 of 2014 in view of the pendency of this second appeal.

¶60

8 . The reasons on the basis of which the

¶61

appellate court reversed the decision of the trial court are the following:

¶62

(i) PW3, a tenant of the building in the suit property has deposed that the tenancy in his favour was renewed by the plaintiff in his favour after the alleged sale deeds .

¶63

RAS.No.1346/2010.

¶64

¶65

(ii) PW4, a lawyer examined by the plaintiff on his side deposed that though Exts.B1 and B2 documents have been executed by the plaintiff in favour of the defendants, the possession of the property has not been handed over to the defendants simultaneous to the execution of the documents .

¶66

(iii) The Advocate Commissioner appointed in the suit has reported that there has been no change as regards the enjoyment the property before and after Exts.B1 and B2 documents.

¶67

(iv) The plaintiff has remitted property tax in respect of the building in the suit property even after Exts.B1 and B2 documents.

¶68

(v) The additional documents produced by the plaintiff in the appeal would show that the defendants are money lenders.

¶69

9 . As noted above, Exts.B1 and B2 documents are styled as sale deeds executed in respect of the suit property. It is categorically stated in the said documents that the possession of the suit property has been handed over by the plaintiff to the defendants. Of course, the plaintiff is entitled to contend that he never intended to convey the suit property to the defendants and that there

¶70

¶71

RAS.No.1346/2010.

¶72

was a parol agreement between the parties at the time of execution of the documents that the property will be reconveyed once the loan dues are paid. But, in the absence of such a case and evidence in support of the same, the case set up by the plaintiff that he continued to be in possession of the suit property even after execution of sale deeds cannot be lightly accepted by a court. As such, according to me, the reasons stated by the appellate court as aforesaid are not sufficient to hold that Exts.B1 and B2 are not genuine documents. Payment of property tax for the the building in the suit property after the purported sale can never be regarded as a circumstance in every case to hold that the property continued to be with the vendor, especially when the same is a voluntary act made by the vendor and there is no enquiry at the time of payment of the property tax as to the title of the person remitting the tax. Likewise, the fact that there is no change at all in the enjoyment of the property after the purported sale also cannot be

¶73

RAS.No.1346/2010.

¶74

¶75

regarded as a reason in every case for the court to hold that the vendor continued to be in possession of the suit property even after the sale. True, defendants are parties to some transactions by which they have re-conveyed the properties of others which they have obtained by way of security while providing loans to them. But, merely for the reason that the defendants were parties to some of such transactions, it cannot be said that all transactions entered into by them were not genuine. In the aforesaid facts and circumstances, I am of the view that the interests of justice demand that the suit from which this second appeal arises shall be tried afresh along with O.S.No.313 of 2008. It is all the more so since title to a large extent of property is at stake in this matter and the right to property has become very valuable than ever before.

¶76

10. In the result, the second appeal is allowed and O.S.No.458 of 2003 is remitted to the trial court for fresh disposal along with O.S.No.313 of 2008 pending

¶77

RAS.No.1346/2010.

¶78

¶79

before the Sub Court, Kottarakkara. Appropriate consequent orders shall be passed by the courts below for transfer of O.S.No.458 of 2003 and for joint trial of the suits. The suits shall be decided untrammelled by the observations in the impugned judgments as also the observations made by this Court in this judgment as regards the acceptability of the contentions raised by the parties. All

¶80

the interlocutory applications in the appeal are closed.

¶81

Sd/- P.B.SURESH KUMAR,

¶82

JUDGE.

¶83

Kvs/-

¶84

// True copy //

¶85

PA TO JUDGE.

Saji Daniel v. Santhoshji

Case brief

What is this about?

What did the court decide?

Saji Daniel v. Santhoshji

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Joseph Mathai @ Raju Vs Simon

Vazhayil Methal Hyrunnisa Vs Koothali Service Co-Operative Bank

Muhammed Vs Ibrahim

Chona George Vs Santhoshji

Muhammed Rafi Vs Sarada

Muhammed Rafi Vs Sarada