Dismissed

Latha Ravi v. Kumari Omana

Kerala HC10 Jul 2024RSA/566/2022

Case brief

AI extract

What is this about?

The appellant challenged the decrees declaring a sale deed null and void as forged, relying on forensic reports. The court held that since the defendants had abandoned the trial and failed to challenge the expert evidence despite long pendency, they could not be permitted to adduce evidence on appeal. The appeal was dismissed.

What the court decided

AI extract

Latha Ravi Vs Kumari Omana — Specific Performance | Kerala HC (2024)

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R.S.A.No.566 of 2022 1

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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 M.A.ABDUL HAKHIM

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WEDNESDAY, THE 10^TH DAY OF JULY 2024 / 19TH ASHADHA, 1946 RSA NO. 566 OF 2022

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AGAINST THE JUDGMENT AND DECREE DATED 08.07.2022 IN AS NO.28 OF 2017 OF SUB COURT, MAVELIKKARA

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JUDGMENT AND DECREE DATED 31.03.2014 IN OS NO.127 OF 2009 OF MUNSIFF COURT, MAVELIKKARA

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APPELLANT/APPELLANT/1ST DEFENDANT:

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LATHA RAVI,

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AGED 49 YEARS, W/O. RAVI, RAHUL VILLA, THRIPPERUMTHURA MURI, CHENNITHALA P.O., THRIPPERUMTHURA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT.

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BY ADV.SRI. S.K.SAJI

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RESPONDENTS/RESPONDENTS/PLAINTIFFS/2ND DEFENDANT AND ADDL.

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4TH DEFENDANT:

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1 KUMARI OMANA, AGED 58 YEARS, W/O. UNNIRKSIHANAN NAIR, R.K.WEAVING UNIT, ERUMAPLAYAM ROAD, KALLARAMPETTI, SELAM, FROM VEMBAZHASSERIL, THRIPPERUMTHURA MURI, CHENNITHALA P.O., THRIPPERUMTHURA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT, NOW RESIDING AT MANGALATHETHU HOUSE, THRIPPERUMTHURA MURI, CHENNITHALA P.O., THRIPPERUMTHURA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT. PIN-690105.

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2 UNNIRKSIHANAN NAIR, AGED 61 YERS, * (DIED) LRS IMPLEADED S/O.CHELLAPPAN PILLAI, R.K.WEAVING UNIT,ERUMAPLAYAM ROAD, KALLARAMPETTI, SELAM,FROM VEMBAZHASSERIL, THRIPPERUMTHURA MURI,CHENNITHALA P.O., THRIPPERUMTHURA VILLAGE,CHENGANNUR TALUK, ALAPPUZHA DISTRICT, NOW RESIDING AT MANGALATHETHU HOUSE, THRIPPERUMTHURA MURI, CHENNITHALA P.O., THRIPPERUMTHURA VILLAGE, CHANGANNUR TALUK, ALAPPUZHA DISTRICT, PIN-690105

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3 RAVI

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AGED 59 YEARS, S/O. VELAYUDHAN, PERMANENTLY RESIDING AT RAHUL VILLA, THRIPPERUMTHURA MURI, CHENNITHALA P.O., THRIPPERUMTHURA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT,PIN-690105.

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4 MINI KRISHNAKUMAR, AGED 53 YEARS, W/O. LATE KRISHNAKUMAR, VEMBAZHASSERIL, THRIPPERUMTHURA MURI, CHENNITHALA P.O., THRIPPERUMTHURA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT,PIN-690 105.

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ADDL R5 VISHNU, AGED ABOUT 25 YEARS, S/O UNNIRKSIHNAN, VEMBAZHASSERIL,R.K.WEAVINGUNIT, ERUMAPLAYAM ROAD, KALLARAMPETTI, SELAM, THAMILNADU, PIN-636107

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FROM VEMBAZHASSERIL, THRIPPERUMTHURAMURI, CHENNITHALA P.O., THRIPPERUMTHURA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT.

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R.S.A.No.566 of 2022 3

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THE LEGAL REPRESENTATIVE OF DECEASED R2 IS IMPLEADED AS ADDL R5 AS PER ORDER DATED 08.12.2023 IN IA 2/2022

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R1 AND ADDL R5 BY ADV.SRI.SANAND RAMAKRISHNAN R4 BY ADVS.SRI.HARIKUMAR T SRI.P.B.SAHASRANAMAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.S.A.No.566 of 2022 4

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JUDGMENT

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Dated this the 10^th day of July, 2024

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1.The Appellant is the 1^st defendant in the suit. The appeal is filed against the concurrent findings of the trial court and appellate court.

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2.The parties are referred according to their status in the suit.

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3.The Plaintiffs are wife and husband.The Defendants 1 and 2 are wife and husband. The Additional defendants 3 and 4 husband and wife. The additional defendant No.3 is the brother of the plaintiff No.1.

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4.The suit is filed for a declaration that Ext.X1 document is forged by the defendants and that the said sale deed and the proceedings thereon are not binding on the plaintiff and the plaint scheduled property and for a mandatory injunction against the defendants to vacate from the plaint scheduled property with the averments that the plaintiffs are the joint owners in possession of the plaint schedule property; the additional defendant Nos. 3 and 4 had been residing in the

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R.S.A.No.566 of 2022 5

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house in the plaint scheduled property with permission of the plaintiff; that the plaintiff decided to sell the plaint scheduled property; that it was communicated to the defendants 3 and 4; that the defendants 1 and 2 approached the plaintiff and undertook to purchase the plaint scheduled property for a total consideration of Rs.5,00,000/-; that Ext.B1 Sale Agreement dated 24.04.2006 was executed between the plaintiffs and the defendants 1 and 2 by which an advance amount of Rs.50,000/- was given to the plaintiffs; that the defendants 1 and 2 are bound to perform their part of contract by paying the balance sale consideration within a period of three months; that though the defendants 1 and 2 agreed to pay the balance sale consideration after availing loan the same was not done; that later the plaintiffs understood that Ext.X1 sale deed dated 06.12.2006 was created in favour of the 1^st defendant that the defendants 3 and 4 evaded from giving a reply with respect to the creation of the said sale deed; that on enquiry the plaintiffs understood that Ext.X1 document is made in the style that the plaintiff transferred the plaint scheduled property to the 1^st defendant; that the defendants played cheating by impersonation by producing some other persons

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in the place of plaintiffs 1 and 2 and thereby made Ext.X1 document; that the plaintiffs never executed Ext.X1 document; that the 1st defendant obtained loan of Rs.2,00,000/- by pledging Ext.X1 loan before the Service Co-operative Bank, Chennithala; that the plaintiffs filed complaints against the illegal acts of defendants 1 and 2; and that hence Ext.X1 is liable to be declared as null and void.

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5.The 1^st defendant filed written statement contending, inter alia, that the suit is bad for non joinder of necessary parties as defendants 3 and 4 who actively involved in the sale transaction are not made parties; that they paid a total sum of Rs.1,90,000/- for settling the debts fastened upon the plaint scheduled property on the understanding that the same would be set off from the balance sale consideration; that Ext. X1 sale deed is executed by the plaintiffs and the same was executed after payment of balance consideration and after clearing the debts fastened upon the plaint schedule property.

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6.The defendants 3 and 4 also filed written statements contending inter alia that it is the plaintiffs who had executed the Ext.X1 sale deed and that the entire sale consideration

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pertaining to the scheduled property was accepted by the plaintiffs as on the date of sale deed. In essence the defendants 3 and 4 supported the defendants 1 and 2.

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The Ext.X1 was summoned by the Trial court and the same was produced by PW1 who is the Secretary of the Service Co-operative Bank, Chennithala with whom the same was mortgaged by the defendants 1 and 2. The 1^st plaintiff was examined as PW2. The Sub Inspector of Police who registered Crime No.275/2009 of Mannar Police Station at the instance of the plaintiff No.1 is examined as PW3. The 2^nd plaintiff is examined as PW4. The Assistant Director of Forensic Science Laboratory, Thiruvananthapuram who prepared Ext.C2 report comparing the disputed signatures and specimen signatures were examined as PW5. The Exts.C1 Report and C1 (a) to (f) Print outs by the Finger Print Experts was also marked through the 1^st plaintiff.

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8.The 1^st plaintiff/PW2 was examined on 16.03.2011 and 27.05.2011 and thereafter PWs 3 to 5 were examined on 24.03.2011, 10.01.2014 and 17.01.2014. The PW2 was further examined after receipt of expert evidence on

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R.S.A.No.566 of 2022 8

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03.01.2014. The 1^st defendant cross examined PW1 on 16.03.2011 and thereafter the 1^st defendant abandoned the proceedings and did not participate in the trial. Consequently, the 1^st defendant did not cross examine on the further evidence of PW2 and also PWs 3 to 5. The Trial Court relying on Exts.C1 and C2 series of expert evidence found that Ext.X1 is not executed by the plaintiffs and accordingly decreed the suit declaring that Ext.X1 as null and void; that the same will not be binding upon the plaintiffs and the plaint scheduled property and on the basis of such declaration Ext.X1 is cancelled ordering communication to the Sub Registrar Office. Further directions were given to destroy Ext.X1 and communicate the same to the service CoOperative bank, Thripperumthura and to the defendants 1 to 4 to vacate the plaint scheduled property within a period of one month from the date of decree otherwise giving liberty to the plaintiff to execute the decree and realise the execution was therefrom from their defendants and their assets.

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9.The 1^st defendant filed AS 28/2017 before the Appellate Court and the Appellate Court dismissed the said appeal as per judgment dated 08.07.2022 confirming the Trial court

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judgment. The present Appeal is filed against the judgment of the Appellate Court confirming the Trial Court judgment.

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This Court issued notice before admission on this appeal on 30.09.2022 and thus the respondents 1 and 2 appeared. Thereafter on the death of 2^nd respondent additional 5^th respondent was impleaded. I heard the Learned Counsel for the Appellant Sri.S.K.Saji and the Learned Counsel for respondents 1 and 5 Sri.Sanand Ramakrishanan.

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The counsel for the appellant submitted that the judgment passed by the Trial court and the Appellate court are unsustainable since the plaintiffs have not discharged their burden to prove that Ext.X1 document is not executed by them. According to him though Ext.C1, C2 series of Report state that there is no difference of the signatures of the plaintiffs in Ext.X1 on comparing with the admitted signatures, the Trial court ought to have considered the said Report in the light of the signatures of the plaintiffs in the Plaint as well as in the Vakalath executed by them. He invited my attention to show that there is markable difference between the signatures of the plaintiffs 1 and 2 in the plaint

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and in the specimen sent for examination. On the other hand, counsel for the contesting defendants submitted that the defendants 1 and 2 have no right to raise such a contention since they stayed away from the trial after the initial examination of PW2 and they did not challenge the Expert Reports which were produced as Ext.C1 series and C2 series before the Trial Court.

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On going through the impugned judgments, I find that the defendants 1 and 2 stayed away from the Trial on receipt of Exts. C1 and C2 Reports by the Court for the reasons known to them. If they had any objection with respect to those Reports they should have participated trial of the suit and challenged those Reports in accordance with the law. Ext.C2 is proved by PW5 and he was also not cross examined by the defendants 1 and 2. Though defendants 1 and 2 had a case in the Written Statement that they paid the entire consideration they did not mount to the box to depose the details of the same and to make them available for cross examination to the plaintiffs on those aspects. It is seen from the proceedings that the Trial of the suit remained for long period. So the defendants 1 and 2 had enough

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opportunity to contest the matter even if there occurred some lapses on their part in the initial days. They could have summoned the attesting witness of X1 could have adopted other modes to substantiate their contentions since the Expert evidences are in favour of the plaintiff. But they didn't choose to do the same. From the conduct of the plaintiffs it is seen that they had taken all possible actions immediately on getting knowledge of the existence of Ext.X1 document including filing of criminal complaints against the defendants 1 to 4.

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The counsel for the appellants submitted that they did not get sufficient opportunity to contest the suit and prayed that an opportunity may be given to defendants 1 and 2 to adduce evidence to prove that Ext.X1 is executed by the plaintiffs themselves by remanding the case back to Trial Court since Ext.X1 was acted upon by them and they mortgaged the same with bank and obtained the loan. I find from the Appellate Court judgment that very same prayer was made before the Appellate Court also and the same was declined by the Appellate Court specifically referring to the

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pendency of the trial for the long period. I do not find any illegality in such a finding.

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In view of the aforesaid discussions, I do not find any error or illegality in the impugned judgments. The questions of law framed in the Appeal Memorandum do not arise in the matter. Accordingly, the Regular Second Appeal is dismissed without costs.

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M.A.ABDUL HAKHIM JUDGE

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MJL

Latha Ravi v. Kumari Omana

Case brief

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Latha Ravi v. Kumari Omana

Case brief

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