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2012 DIGILAW 28 (CAL)

Johnson Koshy v. Mrs. Madhu Mohanan

2012-01-11

TAPAN KUMAR DUTT

body2012
Judgment : This Court has heard the learned advocates for the respective parties. The facts of the case, very briefly, are as follows:- The respondent in this appeal had filed a suit against the appellant praying for declaration of her right, title and interest over the property in dispute and eviction of the appellant from a portion thereof. The respondent claimed that she had purchased the suit land on 30.12.1998 from the Niketan Land Development and Housing Cooperative Society, of which she was a member and she had constructed a building thereupon with her own funds which she acquired by obtaining loans from her office and banks etc. It appears that there was an intimate relationship between the parties and the respondent has alleged that owing to such intimacy she executed a power of attorney on 03.01.2003 whereby she authorized the appellant to supervise the construction work of the respondent’s building on the suit land and other connected activities. It further appears that the respondent had already entered into an agreement with the appellant to sell the second floor of the suit building at a certain price. The respondent’s case is that the appellant has been occupying illegally a certain portion of the suit property and the appellant refused to vacate the suit property and, as such, the respondent had to file the said suit asserting her right, title and interest in the suit property. The appellant contested the suit by filing written statement and the case of the appellant was that the appellant and the respondent came into contact with each other and developed a relationship and consequently they were married. The appellant’s case was that the respondent had executed a power of attorney on 15.03.2003 and on the basis of such power of attorney the appellant constructed the building on the suit plot with his own funds. The appellant’s further case was that on 3.11.2003, the respondent executed a agreement and sold away the second floor of the suit building to the appellant at a certain price and the appellant has been occupying the entire suit property and running his business therefrom on the strength of these two documents. The appellant, thus, prayed for dismissal of the suit. The appellant, thus, prayed for dismissal of the suit. The suit came up for hearing and both the parties adduced their respective evidence and after considering the materials on record, the learned trial court came to the conclusion that the respondent has legal right, title and interest over the suit property and the appellant has no such right, title and interest over the suit property. The learned trial court passed a decree declaring the right, title and interest of the respondent in the suit property and directed the appellant to vacate the suit property which was under his occupation. Challenging such judgment and decree of the learned trial court, the appellant filed an appeal being Title Appeal No.03 of 2009, which was placed before the court of learned District Judge, A & N Islands. It may be recorded here that the aforesaid suit was numbered as Other Suit No.57 of 2006 and the judgment and decree dated 29.11.08 in the aforesaid suit was passed by the learned Civil Judge (Senior Division) at Port Blair. The learned lower appellate court has dismissed the aforesaid title appeal by the impugned judgment and decree dated 15.07.2010.Challenging such judgment and decree of the learned lower appellate court, the defendant in the suit has preferred the instant second appeal. It appears from records that an Hon’ble Division Bench of this Court by order dated 15.03.2011 has been pleased to formulate the substantial question of law involved in this appeal as follows: “Whether both the courts below were justified in passing the decree for eviction against the defendant/appellant without considering the protection available under section 53A of the Transfer of Property Act, in the facts of the instant case, particularly when the possession of the defendant in the part of the suit property is admitted by the plaintiff and the defendant claims such possession in the suit property on the basis of the agreement for sale entered into between the parties?” The learned lower appellate court has found in the impugned judgment, after considering all the relevant materials on record, that the respondent has clearly proved her legal ownership over the suit property. The learned lower appellate court in this regard considered various exhibits, as would appear from the impugned judgment and also the evidence of the witnesses including the witnesses who came to depose on behalf of the Niketan Land Development Housing Cooperative Society. The learned lower appellate court in this regard considered various exhibits, as would appear from the impugned judgment and also the evidence of the witnesses including the witnesses who came to depose on behalf of the Niketan Land Development Housing Cooperative Society. The learned lower appellate court made clear finding, after considering the materials on record, that there has been no dispute with regard to the fact that the suit land once belonged to the said Co-operative Society and that the respondent had a share in the said society and the said society in lieu of that share allotted the suit land in favour of the respondent. The learned lower appellate court found that in such case of transfer, the deed of sale is not necessary. It further appears from the impugned judgment itself that the respondent had applied for sanctioning of building plan before the municipality concerned and the said sanction was granted by the municipal authorities and such sanction was made in the name of the respondent. The learned lower appellate court came to the conclusion that from the relevant documents it will be seen that the building in the suit land was in the name of the respondent even as per the municipal records. The learned lower appellate court further considered various exhibits and came to the findings that the respondent had mortgaged the suit property which is standing in her name for taking loans from her department and the electric connection in the suit premises is also in the name of the respondent. Further, it will appear that there is clear finding by the learned lower appellate court that the appellant during cross-examination admitted that he has no ownership over the suit land. Thus, it will be seen that the learned lower appellate court, being the last court of facts, came to the clear finding that the respondent is the owner of the suit land. In any event, the defendant/appellant cannot dispute the ownership of the plaintiff/respondent since the defendant/appellant has based his claim on the suit property on the basis of the power of attorney and the agreement allegedly executed by the plaintiff/respondent and, thus, admitting that the plaintiff/respondent, at least, had been the owner at the relevant point of time. Thus, this Court finds that upto the learned first appellate court the finding is that the respondent is the owner of the suit property. Thus, this Court finds that upto the learned first appellate court the finding is that the respondent is the owner of the suit property. Now, there is no dispute that the defendant/appellant is in possession of a portion of the suit property, as the plaintiff has filed a suit praying, inter alia, for recovery of possession of the suit property. Since the defendant/appellant has failed to prove his ownership in respect of the suit property, the learned lower appellate court has found that the defendant is in illegal possession of the suit property. Now this Court intends to deal with the question of applicability of section 53A of the Transfer of Property Act, 1882. Before dealing with this aspect any further, it should be noted herein that none of the parties have brought on record the alleged power of attorney and/or the agreement for sale. It appears that only xerox copy of the power of attorney and agreement for sale were produced before the court. The original documents are not on record as it has already been found by the learned lower appellate court. The learned advocate appearing on behalf of the appellant has submitted that the learned lower appellate court has failed to consider section 53A of the said Act of 1882. The said learned advocate has submitted that the plaintiff has alleged that she has purchased the suit property, but she has not filed any sale deed. This aspect of the matter has already been discussed above and it has been found by the learned lower appellate court that in the facts and circumstances of the case, there was no necessity of sale deed. The learned advocate has rightly submitted that the plaintiff has not produced in evidence the original documents. But, it has to be noted that the defendant also has not brought on record the original documents. Thus, both the parties have not brought the said two documents on record in its original form. The learned advocate appearing on behalf of the appellant submitted that the defendant is the husband of the plaintiff and therefore, the custody of the relevant documents are now with the plaintiff. The learned lower appellate court has observed that such argument is not convincing at all. The learned advocate appearing on behalf of the appellant submitted that the defendant is the husband of the plaintiff and therefore, the custody of the relevant documents are now with the plaintiff. The learned lower appellate court has observed that such argument is not convincing at all. This Court is also of the view that even if it is assumed for the sake of argument that the parties have been married, even then, the Court cannot come to the conclusion that the documents which were supposed to be in the custody of the defendant is now in the custody of the plaintiff. The learned advocate appearing on behalf of the appellant referred to paragraph 12 of the written statement and submitted that the defendant has pleaded that the defendant has incurred the entire expenditure of the construction of the building. Even if it is assumed for the sake of argument that the defendant has, in-deed, made expenditure in respect of the said building, no right can accrue in favour of the defendant since the defendant has no right, title and interest in the suit property. That apart, the documents on record show that it is the plaintiff who has obtained loan for the purpose of making construction on the suit property. The defendant’s version of the story is not acceptable. The argument of the learned advocate for the defendant/appellant that the plaintiff has failed to prove her title is also unacceptable in view of the materials on record as already found by the learned lower appellate court. The learned advocate appearing on behalf of the appellant has further referred to the evidence of the plaintiff wherein she has stated that the agreement and the power of attorney have not been cancelled by her. But she has also stated in evidence that she has prayed before the court to declare those documents as null and void. The learned advocate appearing on behalf of the appellant submitted that a fact admitted by a party need not be proved by the other party in terms of section 58 of the Evidence Act. In this particular case, it appears that the title in respect of the suit property was in dispute from the very beginning. But both the parties have not filed their respective original documents. In this particular case, it appears that the title in respect of the suit property was in dispute from the very beginning. But both the parties have not filed their respective original documents. The plaintiff’s case is that the defendant has been in illegal possession and not on the basis of any of the documents executed by her. The defendant’s case that the defendant is entitled to protection under section 53A of the said Act of 1882, as argued before this court, is not supported by any material on record. In section 53A of the said Act of 1882, it appears that the terms necessary to constitute the transfer must be such that it can be ascertained with reasonable certainty. In the present case, the documents are not at all on record and therefore, the question of ascertaining the terms does not arise at all. The photo copies of the alleged documents cannot be relied upon when there is no explanation whatsoever as to why the original documents were not on record. That apart, the said documents have also not been proved in accordance with law. According to the provisions of section 53A, the transferee should show that he has in part performance of the contract taken possession of the property or any part thereof, or he may be already in possession and may continue in possession in part performance of the contract and has done some act in furtherance of the contract. In the present case, the alleged contract itself has not been proved. In such circumstances, the very foundation and the basis contemplated under section 53A of the said Act of 1882 is not present in the instant case. The alleged instrument of transfer contemplated in the said section 53A, has not been brought on record in accordance with law and the original form of such instrument of transfer has not been adduced in evidence. In such circumstances, the question of granting protection to the defendant under section 53A of the said Act of 1882 does not arise at all. The submissions made by the learned advocate for the appellant that the learned courts below failed to consider section 53A of the said Act of 1882 does not make any difference at all. In such circumstances, the question of granting protection to the defendant under section 53A of the said Act of 1882 does not arise at all. The submissions made by the learned advocate for the appellant that the learned courts below failed to consider section 53A of the said Act of 1882 does not make any difference at all. Even if it is assumed for the sake of argument that the learned courts below did not consider such aspect, this court finds that the appellant is not entitled to protection under section 53A of the said Act of 1882. This court is not inclined to disturb any of the concurrent findings of fact made by the learned courts below. This court does not find any merit in the instant appeal in view of the discussions made above. The instant second appeal is dismissed. There will, however, be no order as to costs. Urgent certified xerox copy of this judgment, if applied for by the parties, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.