Dismissed

Bhargavi v. Harshad

Kerala HC14 Jun 2017RSA/780/2013

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal against a suit for title where plaintiffs alleged sale deeds were hypothecation bonds and an eviction order against encroachment on Public Works Department land. The court held plaintiffs failed to prove the documents were security instruments. The writ petition challenging the eviction order was also dismissed.

What did the court decide?

Regular Second Appeal dismissed with costs; Writ Petition dismissed.

Bhargavi Vs Harshad — Contract and Commercial Disputes | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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WEDNESDAY, THE 14TH DAY OF JUNE 2017/24TH JYAISHTA, 1939

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RSA.No. 780 of 2013 ()

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AGAINST THE JUDGMENT AND DECREE DATED 19-01-2013 IN AS 117/2011 of II ADDITIONAL DISTRICT COURT, KOLLAM

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AGAINST THE JUDGMENT AND DECREE DATED 28-02-2011 IN OS 516/2009 of ADDITIONAL MUNSIFF COURT, KOLLAM

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APPELLANTS/APPELLANTS/PLAINTIFFS :

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1. BHARGAVI, AGED 77 YEARS, W/O.KARTHIKEYAN ACHARI, ALAZHIKATHU PONKONATHUCHERRY, THRIKKOVILVATTOM VILLAGE, KOLLAM DISTRICT- 691 003.

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2. VIJAYAN, AGED 54 YEARS, S/O.KARTHIKEYAN ACHARI, ALAZHIKATHU PONKONATHUCHERRY, THRIKKOVILVATTOM VILLAGE, KOLLAM DISTRICT- 691 003.

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3. BABU, AGED 53 YEARS, S/O.KARTHIKEYAN ACHARI, ALAZHIKATHU PONKONATHUCHERRY, THRIKKOVILVATTOM VILLAGE, KOLLAM DISTRICT- 691 003.

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4. SISUPALAN, AGED 47 YEARS, S/O.KARTHIKEYAN ACHARI, ALAZHIKATHU PONKONATHUCHERRY, THRIKKOVILVATTOM, VILLAGE, KOLLAM DISTRICT- 691 003.

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5. RADHAMANI, AGED 50 YEARS, W/O.KARTHIKEYAN ACHARI, ALAZHIKATHU PONKONATHUCHERRY, THRIKKOVILVATTOM VILLAGE, KOLLAM DISTRICT- 691 003.

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BY ADV. SRI.B.KRISHNA MANI

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RSA.No. 780 of 2013 ()

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RESPONDENTS/RESPONDENTS/DEFENDANTS :

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1. HARSHAD, AGED 37 YEARS, S/O.MUHAMMED ASHARAF, SHABANA MANZIL, KUREEPUZHA CHERRY, KAVANAD POSTAL BOUNDARY, KOLLAM WEST VILLAGE, KOLLAM DISTRICT-691003.

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2. HASEESNA, AGED 37 YEARS, W/O.SAFEER, MANALIL THEKATHIL , KUREEPUZHA CHERRY, KAVANAD POSTAL BOUNDARY, KOLLAM WEST VILLAGE, KOLLAM DISTRICT-691003.

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BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14-06-2017, ALONG WITH WPC. 21068/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/-

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B. KEMAL PASHA, J.

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========================== R.S.A.No.780 of 2013 & W.P.(C) No.21068 of 2016

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========================== Dated this the 14^th day of June, 2017

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J U D G M E N T

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------------------------

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Challenging the concurrent findings entered by

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the Additional Munsiff's Court, Kollam in O.S.No.516 of 2009, followed by those of the II Additional District Court, Kollam in A.S.No.117 of 2011, the plaintiffs have come up in

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Second Appeal.

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The 4^th plaintiff has preferred W.P.(C) No.21068 of 2016, by challenging Exhibit-P18 order passed by the District Collector, Kollam., for evicting the plaintiffs from the Puramboke land belongs to KSTP (Kerala State Transport Project).

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The suit is one for declaration of title and possession of the plaintiffs over the plaint schedule properties, by holding that Exhibit-A1 and Exhibit-A2 Sale Deeds are void. A relief of perpetual injunction has also

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R.S.A.780/13 & W.P.(C)21068/16

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: 2 :

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been sought for, from committing trespass into the plaint schedule properties, from causing any obstructions to the possession and residence of the plaintiffs in the building situated in the plaint schedule properties, from causing obstructions to the poojas and other rituals being conducted by the plaintiffs in the family temple and from forcibly evicting the plaintiffs from the plaint schedule properties.

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The case of the plaintiffs is that all the plaintiffs had to execute Exhibit-A1 Sale Deed dated 16.05.2008, in favour of the defendants, in respect of 1.05 cents of property, which devolved on them, on account of the death of the father of plaintiffs 2 to 5 and the husband of the 1^st plaintiff. Similarly, Exhibit-A2 Sale Deed was executed by the 3^rd plaintiff, on 30.10.2008, in favour of the defendants, in respect of 2.2 Ares equivalent to 5 cents of property. The properties covered by Exhibit-A1 and Exhibit-A2 are lying contiguously. According to the plaintiffs, even though Exhibit-A1 and Exhibit-A2 were executed as Sale Deeds,

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R.S.A.780/13 & W.P.(C)21068/16

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: 3 :

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the same were not intended to be acted upon as Sale Deeds; whereas, the said documents were executed as security documents, in respect of a loan availed by the plaintiffs from the defendants. According to the plaintiffs, they had obtained loans from the defendants on interest in order to discharge the liability in respect of the properties, which was subsisting at the District Co-operative Bank, Kannanalloor Branch, and the interest was being paid timely to the defendants. Even though they had sought for reconveyance of the property, the defendants were not ready and willing to execute such re-conveyance deeds and hence the suit.

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The defendants contended that through Exhibit-A1 and Exhibit-A2, outright sales were created and those documents were deliberately executed by the plaintiffs with full knowledge that those documents were Sale Deeds. The said properties covered by Exhibit-A1 and Exhibit-A2 were purchased by the defendants from the plaintiffs, through

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R.S.A.780/13 & W.P.(C)21068/16

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: 4 :

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Exhibit-A1 and Exhibit-A2 and it is false to state that those documents were executed merely as security documents. There were no loan transactions between the parties. The defendants have set up a counter claim for getting the boundary separating the properties covered by Exhibit-A1 and Exhibit-A2 from the remaining properties of the plaintiffs, and also for perpetual injunction.

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The trial court, after recording evidence and hearing either side, dismissed the suit in relation to the properties covered by Exhibit-A1 and Exhibit-A2 and allowed the counter claim set up by the defendants for the putting up of a compound wall separating the counter claim scheduled property from the remaining properties and passing a decree of perpetual injunction. The plaint item No.3 is the total properties of the plaintiffs, which includes the properties covered by Exhibit-A1 and Exhibit-A2. The title and possession of the plaintiffs over the properties excluding the properties covered by Exhibit-A1 and Exhibit-

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R.S.A.780/13 & W.P.(C)21068/16

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: 5 :

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A2, which are plaint schedule items Nos.1 and 2, was also granted in favour of the plaintiffs.

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The plaintiffs preferred A.S.No.117 of 2011 before

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the District Court, Kollam. The II Additional District Court, Kollam dismissed the appeal and confirmed the judgment and decree passed by the trial court.

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This Court has admitted this Regular Second Appeal on the following substantial questions of law:

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“1. Did not the courts below go wrong in holding that Exts.A1 and A2 are actual sale deeds intended to be acted upon, when the specific case advanced by the appellants is that the documents (Exts.A1 and A2) were never intended to be acted upon but only as a security?

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2. When the property (7 ½ cents of land) covered by Exts.A1 and A2 would take in part of the family temple, nagathara etc., where they not sufficient to hold that the parties never intended to act upon Exts.A1 and A2 as sale deeds?

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R.S.A.780/13 & W.P.(C)21068/16

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: 6 :

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3. Is it not reasonable and probable to hold that purchasers as per Exts.A1 and A2 did not get the property measured because they never intended to get the documents as sale deeds but only as a document evidencing security?”

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Heard the learned counsel for the appellants and the learned Senior Counsel for the respondents.

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On hearing either side, and on a perusal of the

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judgments passed by the courts below, it has come out that the plaintiffs have failed to prove that Exhibit-A1 and ExhibitA2 were executed as security documents in respect of a loan transaction. Exhibit-A1 and Exhibit-A2 are two separate documents executed by different parties. Exhibit-A1 is executed by all the plaintiffs in favour of the defendants in their capacity as legal heirs of deceased Karthikeyan Achari; whereas, the property covered by Exhibit-A2 was settled by Karthikeyan Achari in favour of the 3^rd plaintiff Babu. ExhibitA2 was executed by the 3^rd plaintiff in favour of the

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R.S.A.780/13 & W.P.(C)21068/16

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: 7 :

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defendants. It is a fact that a residential building is situated in the properties belonged to the plaintiffs and they have been residing in the said building. It has clearly come out that a portion of the building is protruding into the plaint schedule items Nos.1 and 2, which are properties covered by Exhibit-A1 and Exhibit-A2, executed in favour of the defendants. It is based on the said fact, the plaintiffs have forwarded a case that Exhibit-A1 and Exhibit-A2 were not intended as Sale Deeds. According to them, possession was not given to the defendants and therefore, Exhibit-A1 and Exhibit-A2 were not intended to be executed as Sale Deeds. At the same time, it is a fact that the description of the property covered by Exhibit-A2 clearly shows that, a part of the building comes within that property also. Therefore, it cannot be contended that the part of the building was not conveyed to the defendants. When a part of the building was also conveyed to the defendants, the plaintiffs cannot forwarded any further claims in respect of that part of the

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R.S.A.780/13 & W.P.(C)21068/16

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: 8 :

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building.

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Another argument forwarded by the learned

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counsel for the appellants is that there is a family temple in the same premises, which are the subject matter of ExhibitA1 and Exhibit-A2 and some idols were also placed therein. It has clearly come out that with a view to encroaching into the portions of the PWD Puramboke, which was set apart for the KSTP, a fencing was constructed by the plaintiffs, by encroaching into the portions of the Road Puramboke, by reducing a portion of the Road Puramboke into their possession. Over and above it, with a view to claiming long possession over it, the appellants installed a Naga idol at that portion of the Road Puramboke . Through Exhibit-P18 order passed by the District Collector, Kollam, further proceedings were initiated against the plaintiffs and they were forcibly evicted from that portion of the Road Puramboke . It is by challenging Exhibit-P18, the 4^th plaintiff has preferred the present Writ Petition.

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R.S.A.780/13 & W.P.(C)21068/16

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: 9 :

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The learned Senior Counsel for the respondents has pointed out that with a view to creating false claims over the plaint schedule items Nos.1 and 2 properties, the appellants presently placed the said idol removed by the Revenue Officials, on a portion of the pathway leading to the plaint schedule items Nos.1 and 2. The argument forwarded by the learned counsel for the appellants that there is a family temple in the properties covered by Exhibit-A1 and Exhibit-A2, is devoid of merits. Had there been any such temple, the same would have found a place in the descriptions of those properties in Exhibit-A1 and ExhibitA2. When Exhibit-A1 and Exhibit-A2 were executed by the plaintiffs without mentioning anything regarding such a family temple in the said property, they are estopped from forwarding any such claim. The learned Senior Counsel has pointed out that it is a modus operandi being adopted by the appellants, to forward such false claims in respect of the properties, after selling away their properties. It has been

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R.S.A.780/13 & W.P.(C)21068/16

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: 10 :

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pointed out that on an earlier occasion also, the 5^th plaintiff along with her husband had forwarded a similar claim in respect of a property, which was sold out by the 5^th appellant, in O.S.No.1104 of 2001 of the Additional Munsiff's Court, Kollam. In that particular case also, it was alleged that the plaintiffs had borrowed an amount of `26,000/- from the defendant in that suit and executed two Sale Deeds in respect of their properties. Then, in the suit, they contended that those Sale Deeds were also executed as security documents and that there was an oral agreement for reconveyance. The said suit was also dismissed.

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There is absolutely nothing to show that Exhibit-A1 and Exhibit-A2 were executed as security documents; whereas, it stands proved that the defendants have obtained Exhibit-A1 and Exhibit-A2 executed in their favour, in respect of plaint schedule items Nos.1 and 2, for consideration. The judgment and decree passed by the trial court, which was confirmed by the lower appellate court are

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R.S.A.780/13 & W.P.(C)21068/16

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: 11 :

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not liable to be interfered with, in any manner. This Regular Second Appeal is devoid of merits, and is only to be dismissed with costs, and I do so. All the pending interlocutory applications in this Regular Second Appeal are closed.

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Regarding W.P.(C)No.21068 of 2016 also this Court is of the view that Exhibit-P18 order, passed by the District Collector, Kollam, is not liable to be interfered with. The said order does not suffer from any illegality, irregularity or impropriety. Principles of natural justice was complied with in passing Exhibit-P18 speaking order. W.P.(C) No.21068 of 2016 is liable to be dismissed.

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In the result, the Regular Second Appeal is dismissed with costs. W.P.(C)No.21068 of 2016 also stands dismissed.

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Sd/-

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B.KEMAL PASHA, JUDGE

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DSV/16/6/17 // True Copy // P.A. To Judge

Bhargavi v. Harshad

Case brief

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Bhargavi v. Harshad

Case brief

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