Point of Law : Where a party to suit does not appear in witness-box and states his case on oath and does not offer himself to be cross-examined by other side, a presumption would arise that case set up by him is not correct.

JUDGMENT :

K. BABU, J.

1. This Regular Second Appeal arises from the judgment and decree dated 22.01.2001 in O.S. No. 163/1998 passed by the Munsiff’s Court, Kuthuparamba. The plaintiff is the appellant.

2. Material facts relevant for the adjudication of this appeal are as follows:

2.1 The plaint schedule property is 1 Acre and 52½ cents of land comprised in re-survey No. 165/2 of Muzhakkunnu village.

2.2 The plaint schedule property originally belonged to one Vadakke Naduvathezhath Padmakshi, the mother of defendant No. 2. She acquired title over the property under settlement deed No. 1811/81. Padmakshi assigned the property to defendant No. 2 as per the assignment deed dated 18.11.1989. As per Exhibit A1 sale-deed dated 04.03.1992, defendant No. 2 assigned the property in favour of the plaintiff. She is the absolute owner in possession of the plaint schedule property. At the time of execution of the sale-deed, defendant No. 2 had assured that the plaint schedule property was free from all encumbrances.

2.3 On 01.03.1998, defendant No. 1, the Manager of the Syndicate Bank, Peravoor approached the plaintiff and told her that the wife of defendant No. 2 had availed a loan from the bank to which defendant No. 2 was a guarantor. Accordingly, defendant No. 1 represented to the plaintiff that he would proceed against the plaint schedule property for realising the loan amount availed by the wife of defendant No. 2, as they committed default.

2.4 According to the plaintiff, she is a bona-fide purchaser. She purchased the plaint schedule property for valid consideration. The transaction covered by Exhibit A1 is genuine. Defendant No. 1 has no right to proceed against the plaint schedule property. The plaintiff is in exclusive possession of the plaint schedule property.

2.5 Defendant No. 1 resisted the claim of the plaintiff. He contended that Smt. Usha, the wife of defendant No. 2, had availed a sum of Rs. 12,000/- from the bank on 18.01.1990. Defendant No. 2 was a guarantor to the said loan transaction. At the time of availing the loan, he had produced the revenue receipt in respect of the plaint schedule property to show that he was in possession of the property. Based on the documents produced by defendant No. 2, a loan was sanctioned in favour of Smt. Usha. Defendant No. 1 contended that even after repeated demands, the loan amount was not repaid within the stipulated time. In 1997, the bank resorted to revenue recovery proceedings. Defendant No. 1 further pleaded that the plaintiff is only a name lender to the transaction referred to in Exhibit A1. The plaintiff is a neighbour of defendant No. 2. Exhibit A1, stated to have been executed by defendant No. 2 in favour of the plaintiff, is a sham document, and the transaction is a fraudulent one. Therefore, the plaintiff is not entitled to a prohibitory injunction as prayed for.

3. The Trial Court dismissed the suit holding that Exhibit A1 sale-deed is a sham document.

4. The plaintiff challenged the decree and judgment of the Trial Court before the Subordinate Judge's Court, Thalassery in A.S. No. 62/2001. The First Appellate court confirmed the findings of the Trial Court.

5. On 08.12.2005, this Court admitted the appeal and issued notice on the following substantial questions of law:

“(1) Are the courts below correct in finding that Ext.A1 is a sham document solely for the reason that the consideration passed is low?

(2) Are the courts below correct in totally discarding Ext.A1 to A3 and oral evidence of PW-1 in the light of the fact that the defence has not adduced any evidence?”

6. Heard Shri. Cibi Thomas, the learned counsel for the appellant/plaintiff and Shri M.P. Ashok Kumar, the learned counsel for respondent No. 1/defendant No. 1.

7. The plaintiff instituted the original suit seeking a permanent prohibitory injunction to restrain defendant No. 1 from proceeding against the plaint schedule property for realizing the amount due to the Syndicate Bank, Peravoor [the Bank] from the wife of de