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2012 DIGILAW 587 (KER)

Babtist Rodrigues v. K. Subrahmanya Sabaraya

2012-06-28

THOMAS P.JOSEPH

body2012
Judgment: These Second Appeals are brought from the common judgment and decree of learned Sub Judge, kasaragod in A.S.Nos.8 and 7 of 2008 respectively, confirming the common judgment and decree of learned Principal Munsiff, Kasaragod in O.S.Nos.385 and 247 of 2006, respectively. 2. Appellant filed O.S.No.247 of 2006 against the respondent for specific performance of an (alleged) oral agreement for sale dated 30.05.1984. He claimed that plaint A schedule in O.S.No.247 of 2006 originally belonged to Appayya as per Ext.A1, order of assignment and the said Appayya sold it to the respondent as per Ext.A2, assignment deed No.852 of 1983. While so, there was an oral agreement between the appellant and the respondent on 30.05.1984 whereby the respondent agreed for sale of the suit property to the appellant for a consideration of `5,700/-. As the respondent was in pressing need for money appellant was persuaded to pay the entire amount on 31.05.1984. Pursuant to that, appellant was put in possession of the suit property. The sale deed was not executed since the respondent had to leave the State. No definite date was fixed for execution of the sale deed. Appellant constructed the building and made improvements in the suit property. The original documents of title were handed over to him by the respondent. When the respondent refused to execute the sale deed, appellant sought specific performance in the year, 2006. 3. Respondent contended that he purchased 90 cents in R.S.No.353/part from Appayya as per Ext.A2, assignment deed in the year, 1983 and since then is in possession and enjoyment of the said property. As he was engaged as a Medical Practitioner at Puttur, in Karnataka State he could not remain at his native place and hence he engaged his brother-in-law, Vishnu Asra to look after and manage the property. Respondent constructed the building in the suit property and effected improvements. While so, Vishnu Asra died in the year, 1985. Since the children of vishnu Asra were minors, appellant was entrusted with the task of managing the suit property. In that situation, he was allowed to stay in the building in the suit property. Respondent denied that there was any agreement for sale of the property. 4. While so, Vishnu Asra died in the year, 1985. Since the children of vishnu Asra were minors, appellant was entrusted with the task of managing the suit property. In that situation, he was allowed to stay in the building in the suit property. Respondent denied that there was any agreement for sale of the property. 4. Respondent filed O.S.No.385 of 2006 against the appellant for recovery of possession of the building in the suit property and for damages for use and occupation at the rate of `250/- per month claiming that the permission granted to the appellant for staying in the building was terminated and in spite of that, appellant has not vacated the building. Appellant resisted that suit on the grounds stated in paragraph 2, above. 5. Trial court was not inclined to accept version of the appellant, found that there is no reliable evidence in favour of the oral agreement for sale, accepted claim of the respondent that appellant was engaged to look after and manage the properties, he is only a licensee of the building in the suit property and consequently dismissed O.S.No.247 of 2006 while a decree was granted in favour of the respondent in O.S.No.385 of 2006. 6. In the appeals at the instance of the appellant, learned Sub Judge confirmed the common judgment and decree of the trial court. The common judgment and decree of the first appellate court are under challenge in these Second Appeals. 7. The learned counsel for the appellant has contended that there is sufficient evidence to accept plea of the appellant as to the oral agreement for sale between him and the respondent. Production of Exts.A1 and A2, documents of title relating to plaint A schedule by the appellant is indicative of the fact that there was an agreement for sale of the suit property in favour of the appellant. It is also contended that Exts.A3 to A6 fortified the contention of the appellant that he is in possession and enjoyment of the suit property. The learned counsel contends that assessment of the building in the suit property is in the name of the appellant and hence in the absence of other evidence it must be taken that he has constructed the said building. 8. The decision of the courts below hinges on the appreciation of the oral and documentary evidence let in by the parties. 8. The decision of the courts below hinges on the appreciation of the oral and documentary evidence let in by the parties. In other words, the finding of the courts below is one of fact based on the contentions raised by the parties and the evidence adduced. 9. Question is whether finding of the courts below that the agreement for sale in favour of the appellant is not proved by reliable evidence is perverse or, is against the evidence on record. It is true that Ext.A1, the prior document and Ext.A2, assignment deed in favour of the respondent are produced by the appellant. But it is not as if the respondent has no explanation for that - he contended that Vishnu Asra, his brother-in-law was managing the property during his temporary absence in connection with his employment in Karnataka State and after the death of Vishnu Asra in the year, 1985, as the children of Vishnu Asra were minors, management of the property was entrusted to the appellant. Exts.A1 and A2 happened to be in the custody of the appellant through the close relatives of the late Vishnu Asra. It is not as if the said explanation of the respondent is so incredible or improbable that the courts below could not have accepted it. 10. Ext.A3 is the certificate of ownership issued by the Local Authority as to the building in the suit property. Ext.A4 series are receipts for payment of revenue for the period from 07.01.1998 to 19.12.2005 (while according to the appellant, the oral agreement for sale was on 30.05.1984 and immediately thereafter, he got possession of the suit property). Ext.A5 is a notice dated 20.01.2000 issued to the appellant by the Secretary of the Local Authority. Ext.A6 series relate to the assessment of building in the suit property. So far as Exts.A3 to A6 series are concerned, its effect is destroyed by the appellant when he, as PW1 admitted that the Local Authority issued Exts.A3 to A6 series without any enquiry. Appellant when examined as PW1 admitted that he is a coolie worker by occupation and that his only income is the wages he gets. His claim that he constructed the building spending around `50,000/-was not accepted in the absence of reliable evidence. The courts below also noticed that appellant had not produced the assessment extract for the building during 1985-1997. 11. His claim that he constructed the building spending around `50,000/-was not accepted in the absence of reliable evidence. The courts below also noticed that appellant had not produced the assessment extract for the building during 1985-1997. 11. PW3 was examined as a witness to speak in favour of the appellant. He stated that appellant effected improvements in the property since 1986 while according to the appellant, he effected improvements since 1985. 12. As against the above evidence of the appellant, respondent gave evidence as DW1 and proved Exts.B1 to B11. It is seen that respondent was also paying revenue for the suit property for various periods. Ext.B5 is an intimation given to the respondent by the Secretary of the Local Authority. Respondent was admittedly working as a Medical Practitioner and had the funds to construct the building. He is admittedly the title holder of the land. 13. No doubt, that the rule that "Quicquid plantatur solo cedit solo (whatever is affixed to the soil belongs to the soil) is not applicable in India and hence the building and land could be owned by different persons. But to hold so, there must be sufficient evidence. Merely based on assessment of the building made in the name of the appellant for some period, no inference or finding is possible that the building was constructed by the appellant. It is also not clear on what material the Panchayat authorities assessed the building in the name of the appellant when the land is in the name of the respondent. In the absence of reliable evidence, it has to be accepted that the building belongs to the respondent. 14. A further fact the trial and first appellate courts took into consideration is that version of the appellant that oral agreement for sale was on 30.05.1984 and the next day itself on account of pressing need for money respondent received the entire sale consideration is improbable as even during that time the respondent was engaged as a Medical Practitioner at Puttur, in Karnataka State while the appellant was a coolie worker by occupation. I must also notice that even according to the appellant, it was without fixing the time to execute the sale deed that the alleged oral agreement was entered into which appears to be quite improbable. I must also notice that even according to the appellant, it was without fixing the time to execute the sale deed that the alleged oral agreement was entered into which appears to be quite improbable. That apart, the alleged oral agreement for sale was on 30.05.1984 and it is in the year, 2006 that appellant sued the respondent for specific performance. As regards the alleged oral agreement for sale and payment of `5,700/- there was no reliable evidence as found by the courts below. 15. The decision of the courts below is one of fact based on the evidence on record and a proper appreciation of that evidence. I am unable to accept the argument of learned counsel for appellant that the finding is perverse or is not supported by evidence so that a substantial question of law is involved. 16. Having heard the learned counsel for the appellant and perused the common judgments under challenge, I do not find any substantial question of law as attempted to be urged in the Memorandum of Second Appeals so that these appeals require admission. 17. Learned counsel has sought some time for the appellant to vacate the building in the suit property. It is contended that appellant has to find out alternative accommodation for his residence. 18. Having regard to the difficulties of the appellant stated by the learned counsel, I am inclined to grant three (3) months time to the appellant to vacate the building in the suit property but, subject to conditions. Resultantly these Second Appeals are dismissed. But the appellant is granted three (3) months time from this day to vacate the building referred to in the plaint schedule in O.S.No.385 of 2006 subject to the following conditions: i. Appellant shall file affidavit in the executing court within ten (10) days from this day undertaking that he will vacate the building by the expiry of three months from this day without putting forth any claim or objection on any account, whatsoever. ii. Appellant shall be liable to pay damages to the respondent for the use and occupation of the building in the way directed by the trial court. iii. Appellant shall not create documents with respect to the suit property or the building, encumber or induct third parties into possession thereof. iv. Appellant shall not put up any additional structure, alter or damage the existing structure(s). iii. Appellant shall not create documents with respect to the suit property or the building, encumber or induct third parties into possession thereof. iv. Appellant shall not put up any additional structure, alter or damage the existing structure(s). v. The order of delivery if passed by the executing court will stand in abeyance during the said period of three months or till appellant vacates the building, whichever is earlier. vi. In case any of the above conditions isviolated, it will be open to the respondent to proceed with execution of the decree notwithstanding the time granted hereby. All pending interlocutory applications will stand dismissed.