JUDGMENT Ramachandran Nair, J. 1. These appeals are from the judgment and decree in O.S.No.67/1999 of the Principal Sub Court, Thrissur filed by the respective defendants. R.F.A.No.615/2009 is filed by the first defendant, R.F.A. No.161/2009 is filed by the second defendant, R.F.A.No.272/2009 is filed by the third defendant and R.F.A. No.439/2009 is filed by the fourth defendant. The plaintiff is the first respondent in all the appeals. We are treating R.F.A.No.161/2009 as the leading case. 2. The plaintiff filed the suit for cancellation of Ext.A2 document, initially. Thereafter the plaint was amended to include more reliefs, viz. for cancellation of the documents executed by the first respondent in favour of defendants 2, 3 and 4 and also for specific performance of an oral agreement. The suit was originally filed against the first defendant, being the second respondent in R.F.A.No.161/2009. 3. The necessary facts for the disposal of the appeals, are the following: Plaint schedule property is having an extent of 2.9 cents. According to the plaintiff, he purchased the land for construction of shopping complex for his business and for letting them out for rent. He is a barber by profession. Ext.A1 dated 16.4.1997 is the document of title under which he purchased the property. The property abuts National Highway near Thrissur town. 4. For raising funds for construction, the plaintiff approached the husband of the first defendant, Shri Rajendran and after he intervened, the first defendant agreed to arrange a loan of Rs.51,000/-. As a security for the transaction, she insisted for assigning the property in her name. The first defendant and her husband assured the plaintiff that the property will be reconveyed as and when the loan amount is repaid with 15% interest. Accordingly, Ext.A2 document was executed on 14.7.1998 in favour of the first defendant. The assignment deed executed by the plaintiff was also handed over to the plaintiff along with other prior documents. After obtaining licence from the concerned Grama Panchayat and an order from the District Collector for the construction, the construction was completed by November, 1998. The three shop rooms have been numbered as 434-A, 434-B and 434-C in Ward No.11 of Nadathara Grama Panchayat. He was issued ownership certificate and building tax was also paid. After obtaining licence from the concerned Grama Panchayat and an order from the District Collector for the construction, the construction was completed by November, 1998. The three shop rooms have been numbered as 434-A, 434-B and 434-C in Ward No.11 of Nadathara Grama Panchayat. He was issued ownership certificate and building tax was also paid. After the plaintiff approached the first defendant for discharging the loan amount, she sought time for reconveyance and wanted him to fetch title deeds of the properties for the reconveyance on 20.1.1999 and on that day the plaintiff approached the first defendant with the money, but she was reluctant to do so and demanded the market value of the property for reconveyance. Even though the husband of the first defendant was approached, that also did not yield any result. 5. According to the plaintiff, he is in actual possession of the property and though Ext.A2 document was executed, it was done only to furnish security for the loan amount. At the time of execution of Ext.A2, the market value of the property was more than Rs.One Lakh per cent, but only a sum of Rs.51,000/-was shown in the document as it was executed as a security. 6. By way of an amendment of the plaint, the plaintiff further prayed for issuance of a direction to the first defendant to reassign the property to the plaintiff and to fix a date for registration of the assignment deed and in case of unwillingness of the first defendant, the same may be executed through the intervention of the court. 7. The first defendant denied the allegations raised by the plaintiff in toto. After the execution of assignment deed, there was no oral understanding to reconvey the property to the plaintiff. She denied the averment that the deed was executed as security for the loan transaction. Later, the property was assigned to defendants 2 and 3 who are in possession of the same. The building was constructed by the first defendant and others. The second defendant, in the written statement contended that the plaintiff has no right or interest in the property. The second defendant purchased the property as per document No.40/1999 and is in possession of it. One Shri Jose had filed O.S.No.749/2000 at the instigation of the plaintiff and the second defendant had also filed O.S.No.751/2000 against the plaintiff. The second defendant denied the alleged oral agreement. The second defendant purchased the property as per document No.40/1999 and is in possession of it. One Shri Jose had filed O.S.No.749/2000 at the instigation of the plaintiff and the second defendant had also filed O.S.No.751/2000 against the plaintiff. The second defendant denied the alleged oral agreement. 8. The other defendants also opposed the prayers of the plaintiff as well as the allegation that there was an oral agreement for reconveyance of the property. It was further contended that the prayer for specific performance for enforcing the oral agreement is barred by limitation. 9. In the written statement filed by the third defendant, it was also submitted that the said defendant had purchased the rights for further construction on the structures in the plaint schedule property with an easement right to use the staircase as per document No.286/1999 of Sub Registry Office, Kuttanellur for valuable consideration. The same is still in his possession. The plaintiff obtained the original title deed of the property deceitfully, stating that he would conduct O.S.No.180/1999 filed by the second defendant for and on behalf of the third defendant. 10. According to the fourth defendant, one shop room was purchased by him from the second defendant as per document No.1329/1996 of Sub Registry Office, Kuttanellur. Rs.1,25,000/- was paid as value of the land and Rs.50,000/-to the shop room, out of which Rs.50,000/- was paid by the fourth defendant to the second defendant and the balance amount was charged on the property. 11. Actually, I.A. No.2453/2004 filed for amending the plaint, was rejected by the trial court, as the plea for specific performance was found to be barred by limitation. As per the judgment in W.P.(C) No.34367/2005 the order of the court below was set aside. But it was further held by this Court that the amendment will become operative only from the date of amendment application and the question of limitation will be raised as an issue, if such a contention is raised by the defendants. 12. The trial court found that the plea for specific performance is not barred by limitation in the light of Section 13 of the Limitation Act. On other pleas also the trial court accepted the case of the plaintiff and passed a decree as prayed for. 13. 12. The trial court found that the plea for specific performance is not barred by limitation in the light of Section 13 of the Limitation Act. On other pleas also the trial court accepted the case of the plaintiff and passed a decree as prayed for. 13. Heard Shri G.Unnikrishnan, learned counsel for the appellant in RFA No.161/2009, Shri Ranjith Thamban, learned Senior Counsel for the appellant in RFA No.615/2009, Shri C. Vathsalan, learned counsel for the appellant in RFANo.439/2009 and Shri P.G. Suresh, learned counsel for the appellant in R.F.A. No.272/2009. Shri T.K.M. Unnithan, learned counsel appeared and argued for the plaintiff in the suit. 14. Shri G. Unnikrishnan, learned counsel for the appellant in R.F.A.No.161/2009 led the arguments. In the said appeal, the appellant is the second defendant. At the outset, learned counsel submitted that the suit, as originally filed, was only for cancellation of Ext.A2 sale deed. There was no prayer for specific performance of the alleged oral agreement for reconveyance. It is pointed out that after the judgment of this Court in Moosa v. Moideen (2001 (1) KLT 183), holding the view that without a prayer for specific performance, such a suit will not be maintainable, an application for amendment was filed as I.A.No.2453/2004 by the plaintiff. The said application was filed on 28.5.2004. The dismissal of the said application was challenged in W.P.(C) No.34367/2005. While disposing of the writ petition, this Court made it clear that the amendment will be operational only with effect from the date of the amendment application, i.e. from 28.5.2004. It is submitted that Article 54 of the Limitation Act provides for three years period. The cause of action for the suit is one stated to have arisen on 20.1.1999, the date on which the first defendant refused to reconvey the property. Therefore, by reckoning three years from the said date, the amendment will be barred by limitation. The court below held that the said claim is not barred by limitation, by relying upon Section 13 of the Limitation Act. The said provision will not apply herein, as the suit itself was properly instituted by paying one third of the court fee, on 20.1.1999. There was a direction to pay balance court fee and thereafter an application under Order XXXIII Rule 1 C.P.C. was filed on 7.1.2002. The said provision will not apply herein, as the suit itself was properly instituted by paying one third of the court fee, on 20.1.1999. There was a direction to pay balance court fee and thereafter an application under Order XXXIII Rule 1 C.P.C. was filed on 7.1.2002. It was dismissed and the plaint was rejected on 29.5.2003, as balance court fee was not paid. The suit was restored only on 25.5.2004 and thereafter the application for amendment was filed as I.A.No.2453/2004. The application dated 7.1.2002 under Order XXXIII Rule 1 C.P.C. was dismissed on 1.5.2003. Learned counsel for the appellant relied upon a decision of this Court in Sreedevi v. Appu (1990 (2) KLT 392) in that context. 15. Learned Senior Counsel appearing for the first defendant/appellant in R.F.A. No.615/2009, Shri Ranjith Thamban and learned counsel appearing for the appellants in the other appeals supported the above plea. Shri Ranjith Thamban submitted that since the cause of action has been stated as arisen on 20.1.1999, the three years period under Article 54 of the Limitation Act is well over by 20.1.2002 and as the application for amendment is filed only much later, the prayer for grant of a decree for specific performance is barred by limitation and on this ground, the appeals will have to be allowed. 16. Shri T.K.M. Unnithan, learned counsel appearing for the plaintiff submitted that the amendment also will have to be considered based on the original cause of action and if so, there is no bar of limitation. It is submitted that the court below has relied upon Section 13 of the Limitation Act which is perfectly justified. It is also submitted that the additional prayer can be granted in a pending suit and there is no change of the cause of action. Learned counsel relied upon the decision of the Apex Court in Vineet Kumar v. Mangal Sain Wadhera (AIR 1985 SC 817). 17. We will straight away proceed to consider the above plea. The court below has considered the matter under additional issues 8 to 11. Learned counsel relied upon the decision of the Apex Court in Vineet Kumar v. Mangal Sain Wadhera (AIR 1985 SC 817). 17. We will straight away proceed to consider the above plea. The court below has considered the matter under additional issues 8 to 11. The argument of the learned counsel for the plaintiff, before the trial court was that the amendment is made only to remove a defect, in the light of the dictum laid down by this Court in Moosa's case (2001 (1) KLT 183) and there is no change of the cause of action and that the amendment will relate back to the date of suit and not from the date of filing of the amendment application. 18. The narration of the facts in paragraphs 18 to 20 of the judgment will show that the suit was filed after paying 1/10th court fee. There was a direction to the plaintiff to pay balance court fee, on 21.12.2001 and the plaintiff filed an application as I.A.No.174/2002 on 7.1.2002 under Order XXXIII Rule 1 to allow him to continue the suit informa pauperis. The trial court gave time to pay balance court fee and the above application was rejected. The plaint was rejected for non payment of balance court fee, on 29.52003. As per the judgment in C.M.A. No.77/2003 dated 18.11.2003 the suit was restored on 25.5.2004. The plaintiff was exempted from paying the balance court fee by the order in C.M.A.No.77/2003. Finally, the trial court took the view that Section 13 of the Limitation Act is applicable in the facts of the case. 19. Section 13 of the Limitation Act reads as follows: "13. The plaintiff was exempted from paying the balance court fee by the order in C.M.A.No.77/2003. Finally, the trial court took the view that Section 13 of the Limitation Act is applicable in the facts of the case. 19. Section 13 of the Limitation Act reads as follows: "13. Exclusion of time in cases where leave to sue or appeal as a pauper is applied for.- In computing the period of limitation prescribed for any suit or appeal in any case where an application for leave to sue or appeal as a pauper has been made and rejected, the time during which the applicant has been prosecuting in good faith his application for such leave shall be excluded, and the court may, on payment of the court fees prescribed for such suit or appeal, treat the suit or appeal as having the same force and effect as if the court fees had been paid in the first instance." For applying the said provision, the following conditions will have to be satisfied: "(a) There should have been an application for leave to sue as pauper and it should have been rejected; (b) The time during which the applicant has been prosecuting in good faith his application for leave shall be excluded; and) The Court may, on payment of the court fees prescribed for suit, treat the suit as having the same force and effect as if the court fees had been paid in the first instance." 20. We will now come to the decision relied upon by the learned counsel Shri G. Unnikrishnan, viz. Sreedevi's case (1990 (2) KLT 392). This Court analysed Section 13 of the Limitation Act, in para 8 of the judgment which is re-produced below: "8. Section 13 has two parts. First part deals with exclusion of time spent in prosecuting the application to sue or appeal. The second part deals with payment of court fee after the application has been rejected and its consequences. The cumulative effect of the two parts which are interconnected is that the period between the date of application to sue or appeal and the date on which it was rejected shall be excluded if the prosecution was in good faith and court fee is paid. The cumulative effect of the two parts which are interconnected is that the period between the date of application to sue or appeal and the date on which it was rejected shall be excluded if the prosecution was in good faith and court fee is paid. The power is specifically vested in the court to admit the suit or appeal on payment of court fee for which time will, in the nature of things be granted. S.5 is no longer tenable to such cases. What is now provided by removal of the anomaly by the insertion of S.13 is permission after rejection of application for leave to sue or appeal as indigent persons made in good faith to register the suits or appeals on payment of the requisite court fee. No lime limit is set out in S.13 and it is obviously a matter of discretion of the court as the word `may' indicates. Court can extend time. That is only for payment of court fee prescribed for such suit or appeal. On such permission and payment of court fee what follows is that the period of prosecution of the application to sue or appeal is excluded from the period of limitation and by fiction of law the suit or appeal is permitted to be treated as having the same force and effect as if the court fee had been paid in the first instance when leave to sue or appeal was filed along with the suit or memorandum of appeal or otherwise." Going by the above dictum also, what is excluded is the period between the date of application to sue and the date on which it is rejected. Thus, the period of prosecution of the application to sue is excluded from the period of limitation and by fiction of law the suit is permitted to be treated as having the same force and effect as if the court fee had been paid in the first instance when leave to sue was filed along with the suit. 21. Herein no application under Order XXXIII was filed along with the suit. The plaintiff approached the court by paying 1/3rd court fee. Here, the cause of action has arisen on 20.1.1999, viz. the date of refusal for reconveyance and the period of three years starts from the said date. 21. Herein no application under Order XXXIII was filed along with the suit. The plaintiff approached the court by paying 1/3rd court fee. Here, the cause of action has arisen on 20.1.1999, viz. the date of refusal for reconveyance and the period of three years starts from the said date. The suit itself was dismissed for non payment of balance court fee, on 29.5.2003. The application for amendment is filed only on 28.5.2004, viz. after the three years fixed under Article 54 of the Limitation Act. Therefore, the conditions under Section 13 of the Limitation Act are not attracted to the facts of this case. 22. Learned counsel for the plaintiff would contend otherwise, as according to him, three year period will not be over, if the days are counted properly. Strong reliance is placed on Vineet Kumar's case (AIR 1985 SC 817) to contend that the amendment is also based on the original cause of action. 23. The Apex Court in Vineet Kumar's case (AIR 1985 SC 817), in para 16 laid down the governing principles when an amendment is sought for. It has been held therein as follows: "16. Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation. The question in the present case is whether by seeking the benefit of S. 39 of the new Act there is a change in the cause of action. In A. K. Gupta and Sons. V. Damodar Valley Corporation, (1966) 1 SCR796: (AIR 1967 SC 96) this Court dealing with the cause of action observed as follows (at P. 98 of AIR) : "The expression "cause of action" in the present context does not mean "every fact which it is material to be proved to entitle the plaintiff to succeed" as was said in Cooke v. Gill (1873) 8 CP 107,117 in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd. (1962) 2 All ER 24 and it seems to us to be the only possible view to take. Any other view would make the rule futile." 24. In Jagdish Singh v. Natthu Singh (AIR 1992 SC 1604) relied upon by the learned counsel for the plaintiff, in para 10, Section 21 of the Specific Relief Act has been considered. The said provision enables the plaintiff in a suit for specific performance also to claim compensation for its breach either in addition to or in substitution of, such performance. The proviso to sub-section (5) of Section 21 grants power to the court to allow the plaintiff to amend the plaint for including a claim for compensation at any stage of the proceedings. Even though learned counsel for the plaintiff argued that these principles will come to the aid of the respondent/plaintiff, we cannot agree with the said contention, in the light of the following aspects. 25. The suit was not originally filed with a prayer for specific performance, but it was filed for cancellation of a document numbered as 2792/1998 of S.R.O., Kuttanellur. According to the plaintiff, 20.1.1999 is the date on which the first defendant refused to receive the loan amount and re-convey the properties. The effect of the dictum laid down in Moosa's case (2001 (1) KLT 183) is that when there is an agreement to reconvey the property on paying consideration, then only a suit for specific performance alone is maintainable. Article 54 of the Limitation Act prescribes the period of limitation for specific performance of the contract as three years. The schedule shows that the time from which the period will begun to run is from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. Herein, therefore, the time will start to run from 20.1.1999, the date on which the plaintiff got information about the refusal of specific performance. I.A. No.2453/2004 was filed on 28.5.2004. Therefore, the prayer was clearly time barred, as the three years period was over. Herein, therefore, the time will start to run from 20.1.1999, the date on which the plaintiff got information about the refusal of specific performance. I.A. No.2453/2004 was filed on 28.5.2004. Therefore, the prayer was clearly time barred, as the three years period was over. The plea that the amendment will relate back to the original cause of action, will not help the plaintiff in the light of the judgment of this Court in W.P.(C) No.34367/2005 wherein it was specifically held that the amendment will be effective only from 28.5.2004. Therefore, the principles stated in Vineet Kumar's case (AIR 1985 SC 817) will not come to the aid of the plaintiff herein, as the said judgment in W.P.(C) No.34367/2005 has become final. In fact, in the judgment in W.P.(C) No.34367/2005 this Court permitted the defendants to raise the plea of limitation and it is in terms of the additional written statement that the additional issues were raised also. 26. The reliance placed by the trial court on Section 13 of the Limitation Act to save the period of limitation is also therefore not correct. It is not a case where a suit was filed with an application under Order XXXIII Rule 1. The plaintiff had paid 1/3rd court fee. Therefore, as explained by this Court in Sreedevi's case (1990 (2) KLT 392) what is permitted is only exclusion of time spent on prosecuting the application by treating the same suit or appeal as having the force and effect as one filed at the first instance as if court fee was paid then. The conditions prescribed in Section 13 of the Limitation Act, as we have already noted, will come to the aid of the defendants. Therefore, the amendment which is ordered to be effective from 28.5.2004, is beyond the period of limitation of three years and hence the said prayer for reconveyance is clearly barred by limitation. We hold so. But learned counsel for the respondent/plaintiff submitted that the plea for cancellation of the document will survive and the case of the plaintiff may have to be considered on merits also. 27. We will proceed to consider the other aspects in the case also. It is argued by the learned counsel for the second defendant, viz. We hold so. But learned counsel for the respondent/plaintiff submitted that the plea for cancellation of the document will survive and the case of the plaintiff may have to be considered on merits also. 27. We will proceed to consider the other aspects in the case also. It is argued by the learned counsel for the second defendant, viz. the appellant in R.F.A. No.161/2009, Shri G. Unnikrishnan that a reading of the plaint will show that the case of the plaintiff that there was only a loan transaction, is not correct. The document, Ext.A2 is dated 14.7.1998, whereas the two witnesses, viz. P.Ws.3 and 4 have got a different case about the date of the alleged oral agreement. It is submitted that the alleged oral agreement stands disproved, as P.W.1's deposition is that the alleged oral agreement was on 14.7.1998. It is further submitted that in Ext.A1 document the consideration paid is Rs.50,000/- whereas in Ext.A2 which is executed within one year, the consideration is Rs.51,000/-. Learned counsel submitted that the plaintiff cannot be heard to say that the real consideration paid for Ext.A1 is much higher, as the land value of the locality does not reflect the value shown in Ext.A2, since by oral evidence he cannot vary the consideration shown in the documents. It is submitted that no evidence worth is there to show the land value in the locality also. Our attention was taken elaborately to the oral evidence of the parties and it is submitted that the plaintiff could not prove by any cogent evidence, that he had made any construction in the plot as claimed. The plaintiff has also not been able to prove by the documents produced, to show that he purchased materials and engaged anybody for making construction. Learned counsel submitted that as Ext.A2 document will show that there was no building in it, the plea by the plaintiff that he partially constructed the building as on Ext.A2, is not correct. Learned counsel therefore submitted by referring to the detailed evidence, that the contention by the plaintiff that Ext.A2 was executed by way of security to a loan transaction, is not at all established. The discrepancies in the evidence of the various witnesses have been highlighted by the learned counsel. 28. Learned counsel therefore submitted by referring to the detailed evidence, that the contention by the plaintiff that Ext.A2 was executed by way of security to a loan transaction, is not at all established. The discrepancies in the evidence of the various witnesses have been highlighted by the learned counsel. 28. It is also submitted that a suit for cancellation of a document can be filed only if the document is void or voidable. Such conditions are not specified here. Learned counsel further submitted that after the first defendant sold a portion of the property to the second defendant, the second defendant has made various constructions which have been proved in evidence also. 29. Learned counsel further submitted that even though Exts.B1 to B35 documents have been produced in evidence by the second defendant, none of them have been considered by the trial court and the findings are totally without any support of the evidence. Thus, it is submitted that there is clear misreading of evidence also. Even though the plaintiff has produced certain documents to show that he has paid property tax and has been issued possession certificate, evidence has been let in by the defendants to show that based on their complaints those proceedings have been cancelled and there is proper documentary evidence in support of the defendants' case. These items of evidence have not been considered by the trial court at all, learned counsel submitted. 30. Learned counsel Shri G. Unnikrishnan further submitted that it is a well settled proposition of law that when suing for a decree for specific performance, it is axiomatic under Section 16© of the Specific Relief Act that the plaintiff will have to plead and prove readiness and willingness. Herein, there are no detailed averments in the application for amendment filed to incorporate the said relief, to show readiness and willingness and what was sought to be added is in the relief portion without any supporting averments which according to the learned counsel, is clear from the amended portions of the plaint. It is further submitted that the plea that the plaintiff continued to be in possession of the property, is belied by the decree and judgment in O.S.No.751/2000 (Ext.B3) wherein the second defendant was the plaintiff. The said judgment has been confirmed by this Court in Second Appeal by this Court which is clear from Ext.A21. Ext. It is further submitted that the plea that the plaintiff continued to be in possession of the property, is belied by the decree and judgment in O.S.No.751/2000 (Ext.B3) wherein the second defendant was the plaintiff. The said judgment has been confirmed by this Court in Second Appeal by this Court which is clear from Ext.A21. Ext. B15 is the appellate judgment also. It is further pointed out that the attempt made by the plaintiff that he has constructed certain portions of the building even by getting P.W.2 examined in the matter, has really failed. He was not successful in proving any of the aspects concerning construction. 31. It is submitted that the burden of proof is heavy on the plaintiff to prove the alleged oral agreement, for which also supportive evidence is not there and the oral evidence adduced through P.Ws.3 and 4 is not really worth to support the oral agreement. It is submitted that there is no evidence worth to show the possession and occupation of the building constructed by him. Learned counsel elaborated his arguments by referring to various documents as well as judgments which we will discuss later. 32. Learned Senior Counsel Shri Ranjith Thamban submitted that once it is found that the amendment seeking relief of specific performance is barred by limitation, nothing survives. What is executed by the plaintiff is a pure and simple sale deed as per Ext.A2. The cancellation of the document can be sought for only if it can be said to be a void or voidable transaction. Herein, he cannot say that the transaction is of that category as the title is admitted since he is now seeking a reconveyance also. It is submitted that the decree in the suit filed by the second defendant shows possession of the property with the second defendant and under Section 42 of the Evidence Act the same is a relevant factor. Learned Senior Counsel also submitted that the plea that Ext.A2 has been executed between the plaintiff and the first defendant as security for the loan transaction is not supportable. There is nothing of any sort in the document to support the said plea and there was no difficulty for the plaintiff to obtain a loan from other sources, if he wanted to retain the property. It is submitted that the contention now raised is clearly an after-thought. 33. There is nothing of any sort in the document to support the said plea and there was no difficulty for the plaintiff to obtain a loan from other sources, if he wanted to retain the property. It is submitted that the contention now raised is clearly an after-thought. 33. Shri C. Vathsalan and Shri P.G. Suresh, learned counsel appearing for the other appellants submitted that Exts.A2 and B19 are pure sale transactions. Learned counsel further submitted that none of the documents produced in evidence by the defendants have been discussed by the trial court. 34. In reply, learned counsel appearing for the plaintiff Shri T.K.M. Unnithan submitted that the decree and judgment passed by the court below are well supportable. It is submitted that the observations in Ext.A21 judgment allowed the plaintiff to re-agitate the matter concerning possession of the property, in the present suit. Learned counsel submitted that para 10 of the judgment in Moosa's case (2001 (1) KLT 183) will support the case of the plaintiff and will enable the plaintiff to adduce evidence that the document was executed only as a security for the loan. With regard to the argument that there are no averments in the amended plaint to seek relief of specific performance, learned counsel invited our attention to the relevant paragraphs in the original plaint as well as in the amended portion and submitted that sufficient pleadings are there. It is submitted by relying upon the decision of this Court in Unni Madhavan Nair v. Kamalakshy and others (1993 (1) KLJ 871) that the ritualistic repetition of the ingredients under Section 16© of the Specific Relief Act is not required. 35. Learned counsel submitted that the fact that original of Ext.A2 was retained by the plaintiff, is significant. Apart from the same, with regard to the oral agreement the non examination of the first defendant itself is fatal and the husband alone has been examined. Since the oral agreement is one with the wife, the evidence adduced by examining the husband is not sufficient. It is submitted that the oral agreement is sufficiently proved by the evidence of P.Ws. 3 and 4 who have clearly spoken about the matter. Learned counsel read through the written statement of the first defendant and the oral evidence of plaintiff's witnesses and argued that this Court can really hold that the case is proved. It is submitted that the oral agreement is sufficiently proved by the evidence of P.Ws. 3 and 4 who have clearly spoken about the matter. Learned counsel read through the written statement of the first defendant and the oral evidence of plaintiff's witnesses and argued that this Court can really hold that the case is proved. It is submitted that in view of the promise made by the first defendant and coupled with other factors, the preponderance of probability is in favour of the plaintiff. 36. Learned counsel further emphasised that with regard to Ext.A1 document itself it has been clearly stated by the plaintiff in evidence that the amount shown as sale consideration does not reflect the actual land value and the same is the case with Ext.A2 document executed with the first defendant also. If that be so, learned counsel submitted that the consideration shown in Ext.A2 is only Rs.51,000/- and the property is in an important locality, on the side of the National Highway and nobody will sell the property for such a price. There was actual requirement for the plaintiff for a loan as he has started construction already and wanted to complete the same. Finally, the learned counsel submitted that it is a clear case of cheating and the defendants have committed fraud which factor can be easily assessed by this court from the available evidence and on that ground itself, the cancellation of Ext.A2 as sought by the plaintiff can be granted by this court. 37. Alternatively, learned counsel for the plaintiff sought for a remand of the matter, if this Court finds that any evidence is lacking on the part of the plaintiff with regard to documentary evidence. Learned counsel relied upon various decisions of this Court and the Apex Court. 38. Ext.A2 is the document by which the plaintiff sold the property to the first defendant. The same is dated 14.7.1998. It is styled as a sale deed. The recitals in the document show that after stating about the previous document, viz. Ext.A1 by which he had purchased it, the entire rights over the property are sold to the first defendant for an amount of Rs.51,000/-. The possession was also handed over and the sale consideration has also been received by the plaintiff. The recitals in the document show that after stating about the previous document, viz. Ext.A1 by which he had purchased it, the entire rights over the property are sold to the first defendant for an amount of Rs.51,000/-. The possession was also handed over and the sale consideration has also been received by the plaintiff. There is a clause for the free enjoyment and ownership over the property as well as freedom to enter into transactions over the property. It is recited that the plaintiff has no further rights over the property and there is no attachment or other encumbrance over the property. The transaction, thus evidences a sale itself. 39. One of the aspects pointed out is that the property was sold to the first defendant without the plaintiff making any construction, according to the learned counsel appearing for the defendants. The prior title deed is Ext.A1 dated 16.4.1997 wherein the consideration shown is Rs.50,000/-. The plaintiff purchased it from one Rappai, S/o. Anthony. The description of the property in the schedule therein is 2.9 cents in extent along with improvements. The same is carried out in description in the schedule of Ext.A2 also. There is no mention about any constructions or existence of a building or at least about the constructions made partly, in Ext.A2. The property was sold as land itself. Even though learned counsel Shri T.K.M. Unnithan submitted that what is mentioned in the schedule will include the alleged constructions made by the plaintiff, we are of the view that the document does not show that any building or partly constructed building is included in the schedule. 40. The purchase by the second defendant is the property with the floor of the building, pillars and right over half of the terrace, as per document No.40/1999. The document retains easement right over south-eastern portion as well as right to construct over the terraced portion, to the first defendant. The third defendant purchased another portion as per document No.286/1999 from the first defendant, wherein the right over the balance half terraced portion and the right to construct over it along with the easement right to use the staircase has been transferred. Finally, as per document No.1329/2006 the fourth defendant purchased one of the shop rooms in the property and the value for the shop rooms is shown as Rs.50,000/- and land value is shown as Rs.1,25,000/-. 41. Finally, as per document No.1329/2006 the fourth defendant purchased one of the shop rooms in the property and the value for the shop rooms is shown as Rs.50,000/- and land value is shown as Rs.1,25,000/-. 41. We will just refer to the findings of the trial court. A reading of para 26 of the judgment will show that the trial court found fault with the first defendant for non examination of herself and has found that the evidence of D.W.1, the husband of the first defendant is not satisfactory. It was found that the licence for construction was issued in the name of the plaintiff which does not run with the land and those documents have been produced along with the sale deed, Ext.A2 by the plaintiff. It was observed that D.W.1 has no clear case about the construction made in the property. After discussing the evidence of P.W.2, the Building Supervisor and accepting the fact that the plaintiff has produced completion certificate of the building issued by the Panchayat, the court below in para 29 found that the building was constructed by the plaintiff and not by the defendants and the possession of the property is also with the plaintiff. In para 30 a finding is rendered that the document Ext.A2 was executed as a security after accepting the plea of oral agreement. Finally, with regard to issue Nos.3 and 4, in para 31 it was held that the documents created are sham and without any valid consideration. 42. Learned counsel for the appellants are right in submitting that none of the documents produced by the defendants have been discussed by the court below. 43. Exts.B1 to B37 are the documents produced by the defendants. Many of them have been produced for disputing the contents of the documents produced by the plaintiff with regard to the alleged payment of property tax, possession certificate and the like. We will discuss those documents in the later part of this judgment. 44. The first question is whether there is any legal evidence to support the alleged oral agreement. Shri G. Unnikrishnan, submitted that the evidence of P.W.1 will show that he is sure that the oral agreement was dated 14.7.1998. In the proof affidavit, at page 3 the date is shown as 14.7.1998. 44. The first question is whether there is any legal evidence to support the alleged oral agreement. Shri G. Unnikrishnan, submitted that the evidence of P.W.1 will show that he is sure that the oral agreement was dated 14.7.1998. In the proof affidavit, at page 3 the date is shown as 14.7.1998. The cross examination of the plaintiff, pages 13 and 14 shows that according to him, the oral agreement was entered into only once, which was on 14.7.1998. According to him, the oral agreement was entered into in the house of the first defendant wherein, apart from the plaintiff, P.Ws.3 and 4, D.W.1's husband Shri Rajendran and D.W.1 were there and the oral agreement was arrived at 3 p.m. He has also clearly stated that P.Ws.3 and 4 were not there at the time of registration and they were present only at the time when the oral agreement was arrived at. 45. The evidence of P.Ws.3 and 4 have been under heavy attack by learned counsel Shri G. Unnikrishnan. The actual dates are not mentioned in the proof affidavit of PW3. According to him, the transactions were in July 1998. In cross-examination, he deposed that, the plaintiff's residence is 2 km. away and they are known each other for about 10 20 years. He went to the shop of plaintiff in July, after 5th, on a day between 10 a.m. and 12 noon. They together went to the house of the first defendant on the next day, to seek money. In cross examination he has clarified that he has not specified the date and time when the oral agreement was executed, but he was there at the time when the money was given, along with P.W.4, on 14.7.1998. According to him, D.W.1's husband gave the money and that the amount was handed over by about 3 p.m. on 14.7.1998. He has also stated lower down, that for the first time he went to the house of D.W.1 four days prior to the date on which the sale deed was executed. He has also gone to the extent of saying that the statement of P.W.1 that the oral agreement was on 14.7.1998 is not correct and the oral agreement was four days prior to that and that too only once. He has also gone to the extent of saying that the statement of P.W.1 that the oral agreement was on 14.7.1998 is not correct and the oral agreement was four days prior to that and that too only once. It is clear from his evidence that he has gone to the residence of D.W.1 twice, that too in his jeep along with plaintiff and P.W.4. 46. P.W.4, in the proof affidavit, stated that the events took place in July, 1998. In the cross examination, P.W.4 has stated that the plaintiff is residing 1 = km. away from his place and they are known to each other. Once, while he was sitting in plaintiff's shop P.W.3 also came there for a haircut and the said date is prior to 10th of that month. According to him, they went to the house of the first defendant two days prior to that, in an autorickshaw brought by the plaintiff and he had gone to that house only on that day and it was at about 3 p.m. He has clearly stated in cross examination that on 14.7.1998 he has not gone to the house of the first defendant. According to him, the oral agreement was on 10.7.1998. In the cross examination for the third defendant, he has clearly stated that as regards the building or about its construction, he has no knowledge. In fact, in the cross examination for the fourth defendant he was asked a specific question that in the proof affidavit he has not stated the year, month and the date of the oral agreement and he answered that the same is true. 47. The question is whether the alleged oral agreement on 14.7.1998, as stated by the plaintiff, is supported by the evidence of P.Ws.3 and 4. Learned counsel for the plaintiff, Shri T.K.M. Unnithan submitted that an oral understanding was there as evident from the deposition of P.Ws.3 and 4 which continued and which culminated in the execution of the document on 14.7.1998. 48. The sanctity of the evidence of P.Ws.3 and 4 with regard to the oral evidence will have to be tested as against the deposition of the plaintiff itself. According to the plaintiff, the oral agreement was on 14.7.1998 itself. But the evidence of P.Ws.3 and 4 are contrary to the same. There is heavy burden on the plaintiff to prove the oral agreement for reconveyance. According to the plaintiff, the oral agreement was on 14.7.1998 itself. But the evidence of P.Ws.3 and 4 are contrary to the same. There is heavy burden on the plaintiff to prove the oral agreement for reconveyance. The alleged oral agreement on 14.7.1998 did not get any support from the evidence of P.Ws.3 and 4. From the evidence of the plaintiff as well as P.Ws.3 and 4 it is clear that they together approached the husband of the first defendant. Therefore, when P.Ws.3 and 4 have clearly stated that the oral agreement was not on 14.7.1998, the plea of the plaintiff remains unsupported. The evidence of P.Ws.3 and 4 varies on other aspects. According to P.W.3, they had gone twice to the first defendant's residence together with plaintiff, but P.W.4 stated that he had gone there only once and was not there on 14.7.1998. P.W.3 stated that the vehicle used was a jeep owned by him, whereas P.W.4 stated that it was an autorickshaw picked by the plaintiff. In the light of the special facts of this case, as the oral agreement alone is sought to be relied upon for a decree for specific performance, the said factor will have to be found against the plaintiff as not proved. The same alone is the main plea to contend that the document was also executed as a security for the money received. 49. Herein, learned counsel for the plaintiff has got a further contention that the first defendant did not enter the witness box and therefore adverse inference will have to be drawn on this aspect, since according to the learned counsel, the oral agreement is between the first defendant and the plaintiff. It is submitted that the evidence of the husband who was examined as D.W.1 will show that there was no difficulty to examine the first defendant even though he stated that she is residing in Hyderabad along with her daughter who is pursuing her studies there. But the learned counsel appearing for the appellants submitted that the case of the plaintiff will show that the first defendant's husband was throughout there for the transaction, and the same is clear from the evidence of the plaintiff and P.Ws.3 and 4. But the learned counsel appearing for the appellants submitted that the case of the plaintiff will show that the first defendant's husband was throughout there for the transaction, and the same is clear from the evidence of the plaintiff and P.Ws.3 and 4. In fact, the averments in the plaint itself (para 3) will show that the case of the plaintiff is that he sought the assistance of the husband of the first defendant, Shri Rajendran for raising funds and at his behest the plaintiff contacted the first defendant and she agreed to give a loan of Rs.51,000/- and insisted that proper security should be given for that amount. It is also stated that the defendant in agreement with her husband insisted that nothing less than an assignment deed of the plaint schedule properties is required. It is finally stated as follows: "The defendant and her husband assured the plaintiff that as and when the loan amount taken is repaid with 15% interest, the defendant will reconvey the plaint schedule properties." Therefore, it is clear that the presence of the husband of the first defendant was throughout there, according to the plaintiff. Therefore, D.W.1 is competent to speak about the same and the contrary view taken by the court below is not correct. We have adverted to the evidence of P.W.1, the plaintiff and P.Ws.3 and 4 also and their evidence also is that they went to the house of D.W.1 and spoke to him and the first defendant. Therefore, we reject the contention of the learned counsel for the plaintiff. Definitely this is a case where the oral agreement stands disproved. 50. As far as the present suit is concerned, the averment in the amended paragraph 9 (a) of the plaint is that at the time of execution of the document on 14.7.1998 there was an oral agreement to reassign the property to the plaintiff as and when the loan amount and interest is paid back. Accordingly, the plaintiff collected the amount and interest and contacted the first defendant on 20.1.1999 for re-assignment of the property. The first defendant was not amenable to re-assign the property as undertaken. The undertaking of the first defendant to re-assign the plaint schedule property is to be enforced strictly. Accordingly, the plaintiff collected the amount and interest and contacted the first defendant on 20.1.1999 for re-assignment of the property. The first defendant was not amenable to re-assign the property as undertaken. The undertaking of the first defendant to re-assign the plaint schedule property is to be enforced strictly. Accordingly, a decree is sought to call upon the first defendant to assign the property in favour of the plaintiff on specified date on which day he has to come to Kuttanellur Sub Registry; receive the sale consideration and execute the assignment deed. 51. With regard to the proof required for the oral agreement to get a decree for specific performance, learned counsel Shri G. Unnikrishnan relied upon the following decisions: Ouseph Varghese v. Joseph Aley and others {(1969) 2 SCC 539}, Brij Mohan and others v. Sugra Begum and others {(1990) 4 SCC 147}, Balakrishnan v. Yakoob and others (2001 (1) KLJ 815), Rajan and others v. Yunuskutty and others (AIR 2002 Ker. 339) and Ummer v. Kunhava (2007 (4) KLT 469). 52. A Division Bench of this Court in Ummer's case (2007 (4) KLT 469) has held that "seeking specific performance of oral agreement supported solely by oral evidence are to be scrutinised carefully and unless there is convincing and satisfactory evidence leading to the agreement, the discretional remedy of specific performance cannot be granted...............Heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of the immovable property and in such cases the evidence and proof of the agreement must be absolutely clear and certain. There must be cogent and reliable evidence to base a suit for specific performance on the basis of an oral agreement." Judged in the light of the dictum laid down in the said judgment also, it is clear that the plaintiff has not discharged the heavy burden and there is no convincing evidence with regard to the alleged oral agreement for conveyance of the property. 53. One of the contentions raised by Shri G. Unnikrishnan is that the averments in the plaint are not sufficient as regards the plea for specific performance, as they are not in tune with Section 16(c) of the Specific Relief Act. We have heard learned counsel on both sides on this point. 53. One of the contentions raised by Shri G. Unnikrishnan is that the averments in the plaint are not sufficient as regards the plea for specific performance, as they are not in tune with Section 16(c) of the Specific Relief Act. We have heard learned counsel on both sides on this point. Going by the various decisions relied upon by the learned counsel for the appellants, viz. Prabhakaran v. Bhavani and others (1974 KLT 115), Govindan v. Ulahannan (1987 (2) KLT 513) and Inderchand Jain (dead) through Lrs. v. Motilal (dead) through Lrs. {(2009) 14 SCC 663}, it can be seen that their Lordships have held that proper pleadings in the light of Section 16(c) of the Specific Relief Act are essential. Shri G. Unnikrishnan invited our attention to Forms 47 and 48 of Appendix A to the Ist Schedule of the C.P.C.also. 54. In Govindan's case (1987 (2) KLT 513) a learned Single Judge of this Court held the view that the requirement of Forms 47 and 48 of Appendix A to the Ist Schedule of the C.P.C. are meant to strictly implement the mandatory provisions of Section 16 of the Specific Relief Act and that those requirements are not directory, they are not optional, but must necessarily be strictly complied with. 55. In Inderchand Jain's case {(2009) 14 SCC 663} it was held in para 15 that "Section 16(c) of the Specific Relief Act, 1963 mandates that the discretionary relief of specific performance of the contract can be granted only in the event the plaintiff not only makes necessary pleadings but also establishes that he had all along been ready and willing to perform his part of the contract." Therefore, the legal position with regard to the said aspect is well established. 56. Therefore, unlike the case of a suit for specific performance, here what is sought is a decree for specific performance to reconvey the property after cancelling the document. In the plaint as originally filed in para 10 what is stated is that the cause of action for the suit arose on 14.7.1998 on which day, document No.2792/1998 was registered as a security and on 20.1.1999 on which day the defendant refused to receive the loan amount and to re-convey the properties at Kuttanellur in Thrissur. 57. Therefore, the basis of the prayer is the refusal to re-convey the property. 57. Therefore, the basis of the prayer is the refusal to re-convey the property. In that view of the matter, we are of the view that the pleadings in para 9(a) of the plaint are sufficient, even though it was vehemently contended by the defendants that all the details regarding the readiness and willingness are not there. This, we hold so, since what is sought for is a reconveyance of the property after cancelling a document. But this will not help the plaintiff as the oral agreement is not established in evidence. 58. The next aspect is regarding the question whether there is any evidence to show that the plaintiff has made the construction. In the proof affidavit, his case is that he started construction after purchase and almost completed it and after getting amount from the first defendant, the constriction of the first floor and part of second floor was made. In the cross examination he has stated that documents have not been produced to show that he has made the constructions. According to him, the pillar work and concreting alone were done in June, 1998. All the constructions, according to him, were made by P.W.2, but he has not stated the details of the payments made to P.W.2, in the plaint. According to the plaintiff, the amounts were paid on 24.11.1998 as per Ext.A17 and the money came from the disposal of another extent of property having 17.5 cents. 59. We will now come to the evidence of P.W.2, the person who has prepared Ext.A16 plan. According to him, he has given a receipt dated 24.11.1998. He has constructed the ground floor, but not the first floor. During cross examination for the second defendant, he has stated that the plaintiff has not paid Rs.3,43,000/- together and the same represents the amount stated to have been paid to the workers. That the workers were paid so much amount, was informed by Sudhakaran (plaintiff). According to him, he has gone to the property on intermittent occasions for supervision. Even though he was asked how many times he has gone there, he could not say it and he could not also say definitely when the work started and it ended. That the workers were paid so much amount, was informed by Sudhakaran (plaintiff). According to him, he has gone to the property on intermittent occasions for supervision. Even though he was asked how many times he has gone there, he could not say it and he could not also say definitely when the work started and it ended. What he has supervised is the work of concreting the pillars and the slab and he could not definitely say that by doing this work it can be said that the work has been completed. According to him, he has not given a completion plan. 60. With regard to the receipt Ext.A17 showing the payment of Rs.3,43,000/-, what he has stated is that the same is issued after calculating the total expense for construction of a building of that much square feet area. He has also stated that he cannot say that the entire construction was done by him. He also does not know the details of purchase of materials and about the amounts spent by the plaintiff for the construction of the ground floor. He also stated that he has not given receipt in his letterhead even though he is having letterhead and that the completion plan was given before the completion. He has further stated that he did not supervise any of the remaining works. 61. Shri G. Unnikrishnan, learned counsel appearing for the second defendant submitted that it is evident from the seal affixed in Exts.A4 and A17 that Ext.A17 is a document issued only in 2001 or thereafter and not in 1998. Ext.A17 is dated 24.11.1998. The seal therein records like this: "P.K. Anti Reg.No.C1/3249/2001/762/SA SUPERVISOR-A MOORKANIKKARA GOVERNMENT OF KERALA DEPARTMENTOF MUNICIPALADMINISTRATIN" Ext.A17 is not given in a letterhead also. In Ext.A4 the licence number mentioned is 19/97 of Nadathara Panchayat. 62. As explained by the learned counsel for the second defendant it can be seen that the seal bears the year as 2001, whereas the document is dated 24.11.1998. P.W.2 has gone to the extent of stating that the document by way of receipt was issued by calculating the total expense for a building, based on floor area basis. He has not supervised any other work also. Therefore, the evidence of P.W.2 will not definitely support the case of the plaintiff that the entire construction was done by him. 63. He has not supervised any other work also. Therefore, the evidence of P.W.2 will not definitely support the case of the plaintiff that the entire construction was done by him. 63. He has examined one more witness, P.W.7 who is a mason. According to him, he has been residing in Mannuthy (the locality in which the building is situated) and has been doing plastering as well as brick work of various buildings and as far as the plaintiff's building is concerned, he has done such works. In cross examination he states that he has done the work in September -October 1998 and he has not seen the building after 1998 on completion of those works. He is a person from Thiruvananthapuram. In cross examination for P.W.7, he has answered that he does not know who has executed the balance work or who was engaged for doing the work also. 64. From this evidence, it has not been proved that the plaintiff has executed the entire work, as contended by the learned counsel. As noticed already, in Ext.A2 document no building is shown, or at least a partial one, in the schedule. Therefore, before execution of the sale deed whether he has completed any work, is not at all established. But the learned counsel for the plaintiff submitted that Exts.A3 to A6 documents will support the plaintiff''s case. Ext.A3 is the copy of the approved plan, Ext.A4 is the permission given by Nadathara Panchayat for construction of the building and Ext.A5 is the proceedings of the District Collector. Ext.A6 is the ownership certificate from Nadathara Panchayat. The other supporting documents produced are Exts.A7 to A14 which are tax receipts issued by Nadathara Panchayat, tax receipts from Thrissur Corporation and a certificate from Nadathara Panchayat. Ext.A15 is the copy of extract of building tax assessment register (1998-1999) from Nadathara Panchayat. To support the plea of electrification work, Exts.A18 and A19 have been produced. Exts.A23, A24 and A25 are copies of certificates of the District Collector, copy of application for permission for building construction and copy of sanction letter from Nadathara Panchayat. Ext.A27 is a crucial document relied upon by the learned counsel for the plaintiff which is a copy of ownership certificate from Nadathara Panchayat. Ext.A28 is also a tax receipt issued by Nadathara Panchayat. Ext.A27 is a crucial document relied upon by the learned counsel for the plaintiff which is a copy of ownership certificate from Nadathara Panchayat. Ext.A28 is also a tax receipt issued by Nadathara Panchayat. According to the learned counsel for the plaintiff, all these documents will support the plea of the plaintiff that he has completed the construction of the building. 65. The second defendant has produced Exts.B1 to B35. Ext.B1 is the copy of the decree in O.S.No.429/2001 filed by the second defendant against defendants 1 and 3 in the suit, wherein a decree for permanent prohibitory injunction from constructing any building in the plaint B schedule property and also from committing any waste or damage to plaint B schedule property, has been granted. Ext.B2 is the copy fo the judgment in the above case. Ext.B3 is the copy of the decree in O.S.No.751/2000 filed by the second defendant herein against the plaintiff and one Jose which was a suit for injunction and the said suit was decreed. The injunction sought was that the defendants and their men be restrained by a permanent prohibitory injunction from trespassing and also from causing any obstruction to the plaintiff therein for peaceful possession and enjoyment of plaint schedule property. Ext.B4 is the copy of extract of building tax assessment register for the year 1998-99 which is heavily relied upon by the learned counsel for the second defendant, wherein in respect of serial Nos.30, 31 and 32 having building Nos.434A, 434B and 434C the second defendant's name also has been included. Ext.B5 is the copy of the possession certificate issued by the Village Officer, Nadathara to the second defendant, showing possession of the property. Ext.B6 is the tax receipt dated 12.1.1999 for payment of tax by the second defendant for the plaint schedule property. Ext.B7 is also similar tax receipt. Ext.B8 is the ownership certificate isued to the second defendant from Nadathara Panchayat which is dated 12.1.1999 for building numbered as XI/434A, B, C. Ext.B10 is the report of the Advocate Commissioner filed in O.S.No.180/1999 wherein the Commissioner has reported about the state of the plaint schedule property at that point of time. The same is dated 23.1.1999. Going by the report, the construction of the building is going on. The same is dated 23.1.1999. Going by the report, the construction of the building is going on. The portions excluding that covered by concrete pillars have been enclosed by walls constructed by hollow bricks and portions inside the rooms have been plastered recently. Doors or shutters have not been fitted to these rooms. The Commissioner would find that the pillars are seen extending towards the upper portion for making further construction. Ext.B12 is the possession certificate issued by the Village Officer, Nadathara Village on 14.7.1999 and Ext.B13 is the encumbrance certificate showing various transactions. Ext.B14 is the decree in A.S.No.548/2003 which is an appeal filed by the plaintiff herein against the judgment and decree in O.S.No.751/2000. Therein, the second defendant herein is the first respondent and the appeal stands dismissed confirming the judgment in the suit. Ext.B15 is the certified copy of the judgment in the said appeal. After analysing the oral and documentary evidence, the appellate court, in para 26 of the judgment found that the plaintiff therein who is the second defendant herein, was in possession of the plaint schedule property as on the date of presentation of the suit. Ext.B16 is the Consumer Registration Card No.14254 issued by the Kerala State Electricity Board to the second defendant and Exts.B17 and B18 are receipts issued by the K.S.E.B. Ext.B19 is the copy of the document by which the first defendant has transferred the property to the second defendant. What is transferred to the second defendant is the land with the floor and pillars and half of the terrace portion. Exts.B21 to B23 are the copies of tax receipts issued by Nadathara Village and Thrissur Corporation. Ext.B24 is the possession certificate issued by Nadathara Village Officer dated 25.10.2000, Ext.B26 is another tax receipt issued by Nadathara Village and Ext.B27 is the cancellation letter issued by Nadathara Village Officer to the Secretary of Thrissur District Panchayat cancelling the possession certificate issued to the plaintiff. Therein, it is mentioned that "even though initially a possession certificate was granted to Sudhakaran to produce it before the District Panchayat Office, on subsequent enquiry it is revealed that the property was transferred by the plaintiff in the year 1998 and accordingly the possession certificate is cancelled." Ext.B36 is the document by which the first defendant has transferred certain portions of the building to the third defendant. What is transferred is the balance upper portion of the building including right to construct over it and an easement right in respect of the portion of the land on the south-western corner having width of 1 meter and length of 2.90 meter as well as the right to construct the staircase. Ext.B37 is the document executed between the second and third defendants. The terms of the document govern certain permission given to the third defendant with regard to construction, etc. 66. We will now refer to Ext.A21 which is the judgment in R.S.A.No.228/2006 by which the second appeal filed from A.S.No.548/2003 in O.S.No.751/2000 filed by the plaintiff was dismissed. It was dismissed at the stage of admission itself. It is submitted by the learned counsel Shri G. Unnikrishnan and learned counsel appearing for the other appellants that in the light of the above judgment the fact that the second defendant has been in possession of he property pursuant to her document, cannot be disputed by the plaintiff herein and he cannot be heard to say that he was in possession. Shri G. Unnikrishnan submitted that this Court had also found in the judgment that the finding with regard to possession does not require any interference. 67. Shri T.K.M. Unnithan, learned counsel appearing for the plaintiff submitted that this Court has given opportunity to the plaintiff to reagitate the matter in the present suit. We have read through the judgment of this Court in R.F.A.No.228/2006. It was held by this Court as follows: "...........The question of possession being a question of fact and since two courts have concurrently held that plaintiff is in possession of the property this Court on the second appellate stage should not re-appreciate the evidence and therefore it has to be held that as far as this second appeal is concerned, the finding of the courts below regarding possession has become final and therefore there is no substantial question of law much less any question of law involved in this case which warrants admission under Section 100 of CPC. At the same time, it has to be observed that in O.S.No.67/99 is pending before the Sub Court, Trichur wherein the first defendant had challenged the correctness and genuineness of assignment deed executed by him in favour of Devi Sarojam and had contended that it is only given as a security and no title has been passed on to her. It is a matter that has to be adjudicated and decided upon the materials available in that case and the mere finding regarding the possession of the plaintiff in this case would not be a bar for the courts below to decide that case in the light of the evidence available and decide the question whether the first defendant has parted possession and title to the property under the disputed document. It is made clear that evidence has to be analysed separately and appreciated in that background and a decision has to be arrived at. With these observations, this second appeal is dismissed." 68. The above will show that the finding regarding the aspect of possession in favour of the second defendant herein, who was the plaintiff therein has been confirmed and has not been disturbed at all. The clarification made only is that the contention by the plaintiff herein that the document in favour of the first defendant is only as a security and no title has been passed on, could be gone into in a suit and it was held that the finding regarding possession of the plaintiff in the suit filed by the second defendant herein, cannot be a bar for the court to decide that case in the light of the evidence available and decide the question whether the first defendant has parted possession and title to the property under the disputed document. It cannot be said that all the questions concluded, have been left open for decision by this Court, as the second appeal itself was dismissed. 69. Shri T.K.M. Unnithan, learned counsel for the plaintiff submitted that this Court has considered all the matters and the said judgment cannot be ignored. Reliance is also placed on a decision of the Apex Court in State of Manipur and others v. L. Ongbi Sahayaima Devi (AIR 1996 SC 2124). 69. Shri T.K.M. Unnithan, learned counsel for the plaintiff submitted that this Court has considered all the matters and the said judgment cannot be ignored. Reliance is also placed on a decision of the Apex Court in State of Manipur and others v. L. Ongbi Sahayaima Devi (AIR 1996 SC 2124). Therein, the Apex Court held that dismissal of a special leave petition by a non-speaking order which does not contain the reasons for dismissal does not amount to acceptance of the correctness of the decision sought to be appealed against. That principle cannot be imported herein. As rightly pointed out by learned counsel Shri G. Unnikrishnan, the second appeal was disposed of at the admission stage without notice to the respondents therein. Therefore, the observation therein, if any, which according to the learned counsel for the plaintiff/respondent, benefits him, cannot bind the second defendant herein. Therefore, as regards the aspect of possession which was a dispute between the second defendant and the plaintiff herein, the judgment will have its own impact and the decree will bind the plaintiff herein. Therefore, the plea that he continued in possession, cannot hold good. 70. We have already adverted to the documents produced by both sides. The documents produced by the plaintiff for payment of tax, viz. Exts.A7 to A14 are subsequent to the filing of the suit. Ext.A15 is the copy of extract of building tax assessment register for the year 1998-1999 which is the same as Ext.B4 wherein the name of the second defendant has been clearly entered. The possession certificate issued in favour of the plaintiff has been cancelled by Ext.B27. Hence, the plaintiff's case that he has been in continuous possession and that he has constructed the building, cannot at all be accepted. 71. Shri T.K.M. Unnithan, learned counsel for the plaintiff submitted that the original document of sale, Ext.A2 has been produced by the plaintiff and he was retaining it even after the transaction was entered into which is a strong circumstance in his favour. The appellants' case is by relying upon the plea raised by the third defendant in the written statement wherein the third defendant states that the plaintiff had occasion to get the document from the third defendant. The appellants' case is by relying upon the plea raised by the third defendant in the written statement wherein the third defendant states that the plaintiff had occasion to get the document from the third defendant. According to the third defendant, he has purchased from the first defendant as per document No.286/1999 the portions excluding those transferred to the second defendant, including the right to construct over the upper portion. According to him, on 20.1.1999 the first defendant had placed with the third defendant the original document, viz. Ext.A2. There was some dispute between the second and third defendant and the second defendant had filed a suit as O.S.No.180/1999 against the third defendant, before the Munsiff's Court, Thrissur and when the third defendant had occasion to discuss with the plaintiff who was the previous owner of the property, about the same, he persuaded the third defendant to hand over the original document for engaging a counsel for the third defendant and accordingly Advocate Shri Devadas was also engaged. It is stated that it is thereafter that the present suit was filed and he produced the document stating incorrect facts. 72. The third defendant has been examined as D.W.3. In the cross examination for the plaintiff, he stated that the plaintiff has taken him to Advocate Shri Devadas and he believed the statement of the plaintiff that he will conduct the case for him. 73. The trial court has rejected the above plea of the third defendant by stating in para 27 that the third defendant was not cross examined before court and therefore the averments in the written statement cannot be relied on as correct. Plainly, it is a wrong assumption of fact, as the third defendant has filed proof affidavit and has been cross examined also. Exts.B36 and B37 have been marked in evidence by him. 74. Plainly, it is a wrong assumption of fact, as the third defendant has filed proof affidavit and has been cross examined also. Exts.B36 and B37 have been marked in evidence by him. 74. In the light of the fact that the plaintiff could not establish by cogent evidence and P.W.2's evidence also does not lend credence to the plaintiff's case that he had constructed the entire building and the evidence of P.W.7 also does not show that the plaintiff has constructed the entire building and in the light of Ext.A21 judgment in the second appeal before this Court wherein the decree and judgment of the trial court as well as appellate court have been confirmed wherein the aspect regarding possession has been found against him, the mere production of Ext.A2 will not help the plaintiff. 75. Apart from that, the other documents produced by the plaintiff have been contradicted by the voluminous documents produced by the defendants also. Therefore, we are of the view that the plaintiff's case that he has constructed the building, and has been in possession does not stand conclusively proved and the preponderance of the probability is in favour of the appellants herein. Learned counsel for the appellants are right in submitting that none of the documents produced by the defendants have been mentioned or discussed by the trial court. They disprove the case of the plaintiff regarding possession, as well as ownership. The finding in para 29 by the trial court that the possession of the plaint schedule property is also with the plaintiff, along with the finding that the building in the plaint schedule was constructed by the plaintiff and not by the defendants, cannot hold good in the light of the heavy documentary evidence in favour of the defendants which have been discussed above. 76. Even though Shri T.K.M. Unnithan, learned counsel for the plaintiff relied upon the principles stated by the Apex Court in Vidhyadhar v. Mankikrao and another (AIR 1999 SC 1441) in support of his case that the fact that the first defendant has not entered the box will lead to a presumption that the case set up by the plaintiff is not correct, as we have already noticed, the case of the plaintiff is that the husband of the first defendant, D.W.1 was actively involved in the matter. The Apex Court in para 16 of the judgment, has held that such a presumption would arise if the party to the suit does not appear in the witness box and states his own case on oath. 77. In the above case, the facts show that the second defendant who was the owner of a plot, had executed a document styled as "Kararkharedi" in favour of the first defendant for a sum of Rs.1,500/- and delivered possession. It was with a stipulation that if the entire amount is returned to defendant No.1 before 15.3.1973, the property will be given back to the second defendant. By a subsequent sale deed dated 19.6.1973 this land was transferred to the plaintiff by defendant No.2. The plea raised by the plaintiff was that the document executed by defendant No.2 in favour of defendant No.1 was a mortgage by conditional sale, the property was liable to be redeemed. Defendant No.2 admitted the whole claim of the plaintiff in the written statement. Defendant No.1 contended that the document of sale in favour of the plaintiff was fictitious and he did not enter the witness box also. The Apex Court, in para 17 found that defendant No.1 was not a party to the transaction of sale between defendant No.2 and the plaintiff and he himself had no personal knowledge about the terms settled between defendant No.2 and the plaintiff. The transaction was not settled in his presence nor was any payment made in his presence. 78. If we appreciate the facts of the case herein, it can be seen that even in the plaint the case, as we have already noticed, is that the transaction of sale was finalised with the active participation of the husband of the first defendant. The plaintiff's witnesses, P.Ws.3 and 4 also have spoken to the above. Therefore, the husband of the first defendant is not a stranger to the transaction. In that view of the matter, we cannot accede to the argument of the learned counsel for the plaintiff that a presumption has to be been drawn against the case of the first defendant. In fact, Shri T.K.M. Unnithan, learned counsel for the plaintiff submitted that a reading of the written statement of the first defendant would show that she had no case about the presence of her husband. In fact, Shri T.K.M. Unnithan, learned counsel for the plaintiff submitted that a reading of the written statement of the first defendant would show that she had no case about the presence of her husband. But when the plaintiff himself has revealed before the court about the role played by the husband, the same is immaterial. Therefore, the finding of the trial court that the absence of examination of the first defendant is a strong circumstance in favour of the plaintiff, is not correct. 79. Apart from the same, herein it can be seen that in the case decided by the Apex Court, there was no evidence on the part of the defendants, but herein all the defendants have given evidence and the Apex Court in Pandurang Jivaji Apte. v. Ramchandra Gangadhar Ashtekar (dead) by Lrs. and others (AIR 1981 SC 2235), has held as follows in para 11: "In our opinion the question of drawing an adverse inference against Apte and Bavdekar on account of their absence from the court would arise only when there was no other evidence on the record on the point in issue." Therefore, learned counsel for the appellants are well justified in submitting that the finding by the trial court on this score is not supportable. 80. Now we come to the remaining points argued. Strong reliance is placed by the learned counsel for the plaintiff, on two decisions of the Apex Court, viz. Joseph John Peter Sandy v. Veronica Thomas Rajkumar and another {(2013) 3 SCC 801} and Laxmibai (dead) through Lrs. And another v. Bhagwantbuva (dead) through Lrs. and others {(2013) 4 SCC 97}. 81. The first decision, viz. Joseph John Peter Sandy {(2013) 3 SCC 801} was relied upon to contend that where fraud has been committed by the defendants and as all materials have been placed before the court by the plaintiff, that aspect can be gone into. A reading of the judgment shows that therein the Apex court was considering drawing an inference of undue influence and in para 18, it has been held that "if there are facts on the record to justify the inference of undue influence, the omission to make an allegation of undue influence specifically, is not fatal to the plaintiff being entitled to relief on that ground; all that the court has to see is that there is no surprise to the defendant." 82. Laxmibai's case {(2013) 4 SCC 97} is relied upon to highlight the following principles stated in para 49 of the judgment: "When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the courts may in the larger interests of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best. Shri T.K.M. Unnithan highlighted the above principles and submitted that even if there are some defects in the pleadings or evidence, considering the background of the case, the over all circumstances and the fact that the plaintiff is a barber by profession and was deceived by others, this Court should come to the help of the plaintiff. 83. Learned counsel also submitted that the plot in question is on the side of the National Highway and the plaintiff himself has stated that when Ext.A1 document was executed only Rs.50,000/- was shown in the document whereas he has paid a much higher amount and the value per cent at that time was above Rs.80,000/-. It is submitted that the value shown in Ext.A2 is only Rs.51,000/-. This itself will lend support to the case of the plaintiff that the document was not a real sale deed but it was executed only by way of security for the loan transaction. He also relied upon the commission report to show the value of the constructions made as well as importance of the locality. 84. These contentions have been strongly opposed by the learned counsel for the second respondent, Shri G. Unnikrishnan and other learned counsel appearing for the appellants. Shri G. Unnikrishnan submitted that the law is well settled that as far as the plea of fraud is concerned, the party alleging it, should set forth full particulars. He relied upon the following decisions: Bishundeo Narain and another v. Seogeni Rai and others (AIR 1951 SC 280), Ladli Prashad Jaiswal v. Karnal Distillery Co. Ltd. (AIR 1963 SC 1279), Ranganayakamma v. K.S. Prakash (AIR 2005 Karnataka 426) and Rajan and another v. Soman and others (2010 (4) KHC 927). It is pointed out that the heavy burden is on the plaintiff to allege and prove vitiating circumstances and nothing has been stated in the plaint. Ltd. (AIR 1963 SC 1279), Ranganayakamma v. K.S. Prakash (AIR 2005 Karnataka 426) and Rajan and another v. Soman and others (2010 (4) KHC 927). It is pointed out that the heavy burden is on the plaintiff to allege and prove vitiating circumstances and nothing has been stated in the plaint. It is submitted that the argument now developed at the appellate stage cannot hold good and even the judgment of the Apex Court relied upon by learned counsel for the plaintiff (Joseph John Peter Sandy's case - (2013) 3 SCC 801) will show that material particulars have been pleaded in the said case with regard to undue influence. 85. In Bishundeo Narain's case (AIR 1951 SC 280), in para 25 it has been held as follows: "Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence." Order VI Rule 4 C.P.C.has been referred to in that context. 86. Ladli Prashad Jaiswal's case (AIR 1963 SC 1279) is the judgment of a Constitution Bench of the Apex Court, wherein in para 20 Order VI Rule 4 C.P.C. and its requirements have been considered. It has been held as follows: "20. Order 6 Rule 4 Civil P.C. provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms in the Appendix, particulars (with dates and items if necessary) shall be stated in the pleading. The reason of the rule is obvious. A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to the parties of the nature of testimony required on either side in support of their respective cases. A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading; if the particulars stated in the pleading are not sufficient and specific the Court should, before proceeding with trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up." 87. In Ranganayakamma's case (AIR 2005 Karnataka 426) a Division Bench in paragraphs 52 to 54 has considered the requirement for a specific pleading with regard to fraud or misrepresentation. It was held as follows: "52. A co-ordinate Division Bench of this Court in Kanchawwa v. Amagonda ILR 2003 Kar. 2548 : AIR 2003 Kar. 434 held that in an advarserial system of administration of justice when a party approaches the Court of law, specifically alleging certain facts, to secure a relief, the pleading is called "Facta-Probanda". A denial by the other side of the said facts, results in an issue and to prove the same, the party on whom the burden lies is required to place acceptable legal evidence which is known a "Facta-Probantia". The party pleading fraud or misrepresentation will have to not only plead the details, but will have to lead evidence in support of such allegations. The party pleading fraud or misrepresentation will have to not only plead the details, but will have to lead evidence in support of such allegations. In the words of learned Judge "Facta-Probanda" and "Facta-Probantia" go hand-in-hand and Court of law cannot afford to spell out a case in favour of such a litigant either merely acting upon "Facta-Probanda" or "Facta-Probantia". The Bench extracted the following passage from Sarkar on Evidence, 13th edition at page 933: "A person who charges another with fraud must himself prove the fraud, and he is not relieved from this obligation because the defendant has told an untrue story." 53. A minute scrutiny of the averments set out in the plaint discloses that the allegations are general in nature. Except for the use of the words "fraud" and "misrepresentation", the plaintiffs have not pleaded as to each verbal misrepresentation, or occasion thereto. Order 6 Rule 4 of the Code of Civil Procedure is of a distinct category in law, requiring pleading with specificity, particularity and precision. The plaint averments are wanting in the pleadings of fact of misrepresentation and fraud, which the defendants 1 and 2 could meet. It is not the mere use of the general words such as 'fraud' or 'collusion' that can serve as a foundation for the plea. Such expressions are quite ineffective to form a legal basis when denuded of particular statement of facts which alone can furnish the requisite basis for the action. The plaint averments, in our opinion, do not set out with reasonable precision, the particulars, so as to constitute allegations of fraud and misrepresentation, by defendants 1 and 2. The trial court was correct in not framing issues on other questions in the absence of pleadings, except for issue No.5, based on general pleadings. 54. In the absence of pleadings and substantial legal evidence to establish fraud, it is well neigh impossible for this Court to conclude that the sisters, did not, on their own volition and without consent execute Exts.D6 and D8. The principle laid down by the Apex Court in the case of Ratnam Chettiar v. S.M. Kuppuswami, AIR 1976 SC 1, in the circumstances is apposite. "The partition effected between the members of the Hindu undivided family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. "The partition effected between the members of the Hindu undivided family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case, the Court should require strict proof of facts because an act intervivos cannot be lightly set-aside." Their Lordships, in para 52 relied upon an earlier decision in Kanchawwav. Amagonda (AIR 2003 Kar. 434) and held in para 53 that "Order 6 Rule4 of the Code of Civil Procedure is of a distinct category in law, requiring pleading with specificity, particularity and precision." 67. In Rajan's case (2010 (4) KHC 927) a learned Single Judge of this Court held that "the burden of proof in respect of the plea of misrepresentation, fraud, undue influence or coercion is upon the person who alleges the same. That burden can be discharged only by putting forth sufficient plea in the pleadings and by proving the same in accordance with law." 68. Judged in the light of the above decisions, this Court will not be justified at this stage, to examine the plea of the learned counsel for the plaintiff that fraud has been committed, without the plaintiff having a case in the plaint and having not led any evidence regarding the above aspect. The Apex Court's judgment in Joseph John Peter Sandy's case {(2013) 3 SCC 801} would show that therein materials have been placed before the court in support of the plea to drawn an inference of undue influence. Herein, such an attempt has not been made by the plaintiff and therefore we reject the said contention. 69. A strong plea has been placed by the learned counsel for the plaintiff to remand the matter for fresh consideration and allow the plaintiff to adduce evidence. It is submitted that if this Court finds that there is any lack of evidence on certain aspects on the part of the plaintiff, he should be given an opportunity. In fact, the parties have led evidence, both oral and documentary. The trial court has only gone into the evidence of the plaintiff and did not refer to the documents of the defendants. There is no plea for the plaintiff that sufficient opportunity has not been given by the trial court also. On the point of limitation we have held against the plaintiff. The trial court has only gone into the evidence of the plaintiff and did not refer to the documents of the defendants. There is no plea for the plaintiff that sufficient opportunity has not been given by the trial court also. On the point of limitation we have held against the plaintiff. Therefore, no purpose will be served by remanding the matter. 70. Learned counsel for the plaintiff further submitted that the amendment was necessitated in the light of the judgment of this Court in Moosa's case (2001 (1) KLT 183) and in para 10 therein it was held that evidence can be let in with regard to oral agreement. The first proviso to Section 92 of the Evidence Act will entitle a person to prove any fact which wold invalidate a document such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. 71. The case of the plaintiff herein itself is that there is an oral agreement for reconveyance by the first defendant. In M'oosa's case (2001 (1) KLT 183) the pleas were similar and the decree sought was to grant a declaration that the sale deed executed by the plaintiff was only executed as security for the amount borrowed. It was held by this court in para 7 that the very plea with regard to the agreement of reconveyance implies that there is an admission that the title of the property has been conveyed to the defendant by that transaction. It was observed as follows: "..............Otherwise there would be no question of the defendant having agreed to execute a re-conveyance on receipt of the money which allegedly the plaintiff had borrowed. The fact that an agreement for re-conveyance is set up by the plaintiff itself reinforces the fact that title under Ext.A1 had been conveyed to the defendant." Learned Senior Counsel for the appellant in R.F.A. No.615/2009 Shri Ranjith Thamban and other learned counsel relied upon the above findings and drew support from the same. In fact, in para 8 of the said judgment this Court was of the view that the absence of a prayer for specific performance of the agreement will go against the plaintiff therein. Therein, in para 10 it was held that the suit as framed is not maintainable. In fact, in para 8 of the said judgment this Court was of the view that the absence of a prayer for specific performance of the agreement will go against the plaintiff therein. Therein, in para 10 it was held that the suit as framed is not maintainable. Of course, going by Section 92 of the Evidence Act and its provisos, oral evidence is permissible in certain circumstances. But herein, the document, as understood by all the parties, is a sale deed itself. We have already held that the oral agreement to be established, gives a heavy burden on the plaintiff. As far as the burden of proof in such cases, this Court in Balakrishnan's case (2001 (1) KLJ 815) in para 5 held that "evidentiary value of oral agreement in a suit for specific performance and the nature of proof to establish the same was considered by the Apex Court in Ouseph Varghese v. Joseph Alex {(1969) 2 SCC 539}. Therein, the Apex Court was of the view that "Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence." 72. In Rajan's case (AIR 2002 Kerala 339) in para 17 this Court reiterated the same position and the requirement of pleadings was also emphasised therein. 73. In this case, the oral agreement for reconveyance sought to be proved by the plaintiff with his evidence along with that of P.Ws.3 and 4 is not convincing as all the transactions have not been properly stated by P.Ws.3 and 4 who stated that the oral agreement was prior to 14.7.1998 whereas the plaintiff stated before the court that the oral agreement was only on 14.7.1998. For all these reasons, we set aside the judgment and decree and allow the appeals. The parties will bear their costs.