A declaration of title suffices without a cancellation prayer if the document is claimed to be a sham, as per the Specific Relief Act.

JUDGMENT

This Second Appeal has been preferred by the respondent in A.S.182/2013 on the file of the District Court, Palakkad against the judgment and decree dated 30.7.2016 allowing the appeal and decreeing the Suit, O.S.293/2011 on the file of the Munsiff's Court, Alathur. The appellant who is the plaintiff filed the suit for a declaration that document No.2711/2011 of SRO, Vadakkanchery was executed only as security towards the chitty amount due to the defendant and that the defendant did not get any right, title or interest in respect of the property therein and also for an injunction restraining the defendant from trespassing into the plaint schedule property and from committing waste therein etc.

2. The case of the plaintiff is that he had joined in three tickets of the kuri conducted by the defendant for a total sum of Rs.1,50,000/-. He had bid the kuri and received a sum of Rs.1,00,000/- being the value of two tickets, after deducting the commission due to the defendant, on condition that he shall remit the future instalments within a period of 350 days. As security for prompt repayment of the instalments, as demanded by the defendant, and having no other alternative, he had executed document No.2711/2011 of SRO, Vadakkanchery in favour of the defendant, on condition that he will re-convey the property on payment of the remaining instalments. In spite of the execution of the above document, the plaintiff along with his family continued to reside in the residential building situated in the plaint schedule property. He never had any intention to convey the schedule property in favour of the defendant. Though he was entitled to get the amount covered by the third ticket also, it was not paid by the defendant. Therefore, the plaintiff requested the defendant to adjust the amount due to him on the basis of the third ticket, in future instalments. However, the defendant insisted the plaintiff to repay future instalments and in that respect there was wordly altercation between them. Thereafter, the defendant threatened the plaintiff to alienate the plaint schedule property and it was in the above context that he filed the present suit. The defendant would contend that the execution of document No.2711/2011 has nothing to do with the chitty conducted by him. According to him, the above document was executed by the plaintiff after receiving due consideration and therefore he prayed for dismissing the suit.

3. The trial court framed necessary issues. The evidence in the case consists of oral testimony of the plaintiff as PW1 and Exts.A1 to A3 on the side of the plaintiff. On the side of the defendant, the defendant was examined as DW1 and Exts.B1 to B6 marked. Exts.C1 and C1(a) were marked as court exhibits. After appreciating the available evidence, the trial court dismissed the suit. However, the 1st appellate court reversed the finding of the trial court and decreed the suit. It was in the above context, the plaintiff approached this Court by filing this Second Appeal raising various contentions.

4. At the time of admission, this Court has formulated a substantial question of law. However, after hearing both sides at length, this court found it necessary to re-formulate the substantial questions of law as follows :-

(i) Whether the absence of a prayer for setting aside Ext.A2(B1)

sale deed is fatal to the plaintiff's case ?

(ii) Whether the finding of the First Appellate Court that Ext.A2(B1) is a sham document is justified, in the light of the evidence on record ?

5. Thereafter, both sides were again heard in detail on those questions of law. One of the contentions raised by the appellant/defendant is that absence of a prayer for setting aside the sale deed No.2711/2011 is fatal to the plaintiff's case. Relying upon Section 31 of the Specific Relief Act , the learned counsel would argue that in the light of the pleadings in the plaint, the prayer for setting aside the above sale deed was absolutely necessary. On the other hand, the