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IN THE HIGH COURT OF KERALA
K. BABU, J.
Bhasy, S/o. Manikkathuparambil Augusthi – Appellant
Versus
Thoman, S/o.Ilanjikkal Ouseph – Respondent
RSA No. 529 of 2015
Decided on : 07-04-2022
Code of Civil Procedure, 1908 - Section 100 - Registration Act - Section 34(2) - Indian Contract Act – Section 10 - Transfer of Property Act - Section 55(3) - Evidence Act - Section 91 and 92 – Suit for specific performance of contract - Deed of assignment - Possession - Oral agreement for sale – Appeal - Does not Exhibit B1 deed of sale carry a mandatory presumption under section 34(2)(a) of Registration Act with regard to its execution and registration, and in absence of pleadings or evidence tendered by plaintiff to rebut such presumption, whether appellate court was justified in granting a decree for specific performance with regard to property on strength of interested oral evidence of plaintiff alone - Is not presumption with regard to principle that possession follows title, applicable to this case since title of defendant covered by deed of assignment was obtained from plaintiff himself, which itself speaks volumes about transfer of title and possession of plaint schedule properties - In absence of pleadings or evidence impugning validity or execution of deed of assignment, instead of admitting its execution, whether plaintiff is entitled to benefit of Section 91 or Section 92 of Evidence Act to tender evidence assailing execution and validity of deed of assignment - First Appellate Court was not justified in reversing the decree and judgment of trial Court. The Court also lost sight of the evidentiary burden on plaintiff by invoking proviso under Section 92 of Evidence Act assailing execution of deed of assignment. The resultant conclusion is that judgment and decree passed by First Appellate Court are liable to be set aside. (Para 28)
Finding of the court :
This Court is in perfect agreement with the contentions of the learned counsel for the plaintiff. The plea of an oral contract for re-conveyance can be accepted if there is cogent and convincing evidence to establish it. It was open to plaintiff to adduce oral evidence in regard to nature of document. But, in present case, plaintiff did not discharge burden of proof in respect of property thereof, which was certainly on him. In the present case, a heavy burden is cast on the plaintiff to prove what actually happened and with regard to borrowal of Rs.24,500/- and execution of deed of assignment, the plaintiff failed to discharge the burden cast on him - Plaintiff failed to lead cogent evidence to rebut the presumption available to a registered document - Question of acceptability of oral agreement for sale, it is trite that a sale agreement can also be oral and it is not necessary that the agreement be written. What is more important is that it should be within ambit of Section 10 of Indian Contract Act, and all oral and written agreements shall fulfill conditions specified in Section 10 of the Act - First Appellate Court further held that evidence regarding handing over of prior title deeds in respect of plaint schedule property to defendant indicates that the transaction was not one for purchase of suit property but a money transaction - It was after execution of sale deed the prior title deeds were handed over to defendant. While dealing with finding of First Appellate Court in this regard, it is relevant to refer to sub-section (3) of Section 55 of Transfer of Property Act.
Result: Second Appeal allowed.
JUDGMENT :
This appeal arises from the judgment and decree dated 23.3.2015 passed by the Additional District Court, Irinjalakkuda in A.S.No.12 of 2008. The Appeal Suit arose from O.S.No.392 of 2006 on the file of the Additional Subordinate Judge’s Court, Irinjalakkuda. The defendant is the appellant. The plaintiff is the respondent.
2. Material facts relevant for the adjudication of this appeal are briefly narrated below:-
2.1. The plaint schedule property is 59.5 cents of land comprised in S.Nos.1422/2 and 1423/2 of Alathur Village. The property originally belonged to the plaintiff. The plaintiff executed a sale deed in respect of this property as deed No.2689/04 dated 25.8.2004 (Ext.B1) in favour of the defendant.
2.2. The plaintiff pleaded that on the date of execution of the sale deed, the plaintiff had borrowed a sum of Rs.1,00,000/-from the defendant, who is a money lender, and as a security for the transaction Ext.B1 sale deed was executed. According to the plaintiff, he had retained possession of the plaint schedule property with him.
The plaintiff further pleaded that on 25.8.2004 itself, the parties entered into an oral agreement in which the defendant had agreed to re-convey the plaint schedule property on payment of Rs.1,00,000/-with interest at the rate of 12% per annum. Towards the oral karar, the plaintiff paid Rs.10,000/-on 5.3.2005 and Rs.14,500/-on 30.7.2005 as advance. On 4.8.2006, the plaintiff requested the defendant to reconvey the plaint schedule property after receipt of the amount due to him. The defendant refused to execute the sale deed as requested by the plaintiff.
2.3. The defendant resisted the suit contending that he never lent money to the plaintiff. The defendant had paid Rs.1,78.500/-to the plaintiff on 25.8.2004 and purchased the plaint schedule property. Immediately after the execution of the assignment deed in respect of the plaint schedule property, the defendant was given possession of the same. The plaintiff has no right or possession over the property. The oral contract alleged to have been entered into between the parties is baseless. The defendant never agreed to reconvey the property as pleaded by the plaintiff. Payment of the advance amount as pleaded by the plaintiff is also false. There was a jack fruit tree in the plaint schedule property which was sold to the plaintiff and towards the value of that tree the plaintiff had paid Rs.10,000/-and at the time of cutting and removing the tree a sum of Rs.14,500/-more was given.
3. The parties went to trial. PWs 1 and 2 were examined and Exts.A1 to A5 were marked on the side of the plaintiff and DW1 was examined and Exts.B1 to B7 were marked on the side of the defendant. Exts.C1 and C1(a) were marked as Court exhibits.
4. The trial Court dismissed the suit holding that the plaintiff is not entitled to the specific performance of the contract as pleaded.
5. The plaintiff challenged the decree and judgment of the Trial Court by filing A.S.No.12 of 2008 before the District Court. The First Appellate Court reversed the judgment and decree of the Trial Court and decreed the suit allowing the plaintiff specific performance of the contract on deposit of Rs.76,500/-with interest at the rate of 12% per annum from 25.8.2004.
6. The defendant is in appeal challenging the judgment of the First Appellate Court under Section 100 of the Code of Civil Procedure.
7. This Court admitted the appeal and formulated the following substantial questions of law:-
2. Is not the presumption with regard to the princip
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