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2023 DIGILAW 1062 (KER)

Sukumari B. S. v. Jayarajan

2023-12-20

A.BADHARUDEEN

body2023
JUDGMENT : Feeling aggrieved by the decree and judgment in O.S.No.906/2011 on the files of the Principal Munsiff Court, Thiruvananthapuram dated 22.12.2020 and its confirmation as per decree and judgment in A.S.No.34/2021 dated 07.12.2022 by the District Court, Thiruvananthapuram, the defendant in the above Suit has preferred this Second Appeal under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure. The plaintiffs are the respondents in this case. 2. I shall refer the parties in this appeal with reference to their status before the trial court, as ‘plaintiffs’ and ‘defendant’ hereafter for easy reference. 3. Heard the learned counsel for the defendant/appellant on admission. 4. Perused the judgments under challenge and the records of the lower court. 5. This Suit originated, according to the plaintiffs, when the defendant encroached upon the plaint schedule property and started to reside at the building situated therein after breaking open the lock of the building after parting title and possession of the same in view of sale deed No.2371/2008 of Thiruvallom S.R.O in favour of the plaintiffs. Accordingly, the plaintiffs sought perpetual as well as mandatory injunction and recovery of possession. 6. The defendant filed a written statement, inter alia, contending that sale deed No.2371/2008 is a sham document and the same was executed as a collateral security for a financial transaction. The defendant never parted possession of the plaint schedule property. Criminal case was launched since the plaintiffs had fabricated documents. 7. After raising necessary issues for determination, the trial court ventured the matter. PW1 and PW2 were examined and Exts.A1 to A8 were marked on the side of the plaintiffs. DW1 to DW3 were examined and Exts.B1 to B7 were marked on the side of the defendant. Ext.C1 was also marked as court exhibit. 8. On scrutiny of the evidence, after appraising the rival contentions, the learned Munsiff decreed the Suit as under: “i) Let the defendant be directed to vacate from the plaint schedule property by a decree of mandatory injunction. ii) Let the plaintiffs be entitled to recover possession of the plaint schedule property from the defendant. iii) Let the defendant be restrained by a decree of perpetual injunction from trespassing into the plaint schedule property, after she is evicted. ii) Let the plaintiffs be entitled to recover possession of the plaint schedule property from the defendant. iii) Let the defendant be restrained by a decree of perpetual injunction from trespassing into the plaint schedule property, after she is evicted. iv) Let the plaintiffs be allowed to recover costs of the suit from the defendant.” The verdict of the trial court was challenged before the District Court and the District Court as per decree and judgment in A.S.No.34/2021, concurred the finding of the trial court and dismissed the appeal. 9. The learned counsel for the defendant submitted that the plaintiffs have no manner of right over the plaint schedule property. According to him, when the defendant was in dire need of money, defendant executed a document styled as a sale deed dated 23.02.2005 and at the time of execution of the said document in favour of the 1st plaintiff, another agreement dated 23.02.2005 marked as Ext.B1, also was executed whereby it has been recited that the above said sale deed was executed as security and on payment of the money borrowed by the defendant from the 1st plaintiff along with interest, the right over the property would be re-conveyed in favour of the defendant. Therefore, Ext.A1 sale deed No.2371/2008, executed by Sasidharan in favour of the plaintiffs and the prior documents are sham documents. It is argued that the defendant has been possessing and enjoying the plaint schedule property and as per Ext.A1 or as per the document executed by the defendant in favour of the 1st plaintiff neither the title nor the possession of the defendant over the plaint schedule property was transferred. Therefore, the Suit must fail and the verdicts under challenge require interference by admitting this Second Appeal. 10. On perusal of the records, the specific case put up by the plaintiffs is that at the time of execution of Ext.A1, the defendant also signed as a witness, and thereby concurred parting of title and possession in favour of the plaintiffs. Thereafter, the defendant trespassed upon the plaint schedule property; broke upon the lock and started to reside therein. 11. Per contra, the case of the defendant is that she had executed a document styled as sale deed in favour of the 1st plaintiff and the said transaction is a money transaction and the document is one executed as a security. Thereafter, the defendant trespassed upon the plaint schedule property; broke upon the lock and started to reside therein. 11. Per contra, the case of the defendant is that she had executed a document styled as sale deed in favour of the 1st plaintiff and the said transaction is a money transaction and the document is one executed as a security. At the same time, the defendant raised a contention that as per Ext.B1, executed on the same day of execution of the sale deed in favour of the 1st plaintiff by the defendant, it was agreed to re-convey the property on clearing the amount borrowed by the defendant. But the defendant has no case that the so called liability was cleared in any manner. The question emerges for consideration is; what is the legal effect of a sale deed allegedly executed as a security, when the buyer and seller jointly execute an agreement, after execution of the sale deed, whereby, it was agreed to re-convey the title in favour of the buyer to the seller?. It is interesting to note that it is the admitted case of the defendant that she executed a document styled as sale deed in favour of the 1st plaintiff. Her case further is that on the same day, Ext.B1 was executed with undertaking to re-convey the same when the financial liability would be discharged. On perusal of Ext.A1, executed by one Sasidharan in favour of the plaintiffs, the prior title deed is described as sale deed No.2119/2006 executed by the 1st plaintiff in favour of Sasidharan. On scrutiny of Ext.B1, the agreement executed between the 1st plaintiff and the defendant on 23.02.2005, it has been recited that as on 23.02.2005, defendant sold her right over the plaint schedule property in favour of the 1st plaintiff as per sale deed No.462/2005 dated 23.02.2005. This contention of the defendant read along with Ext.B1 would go to show that as per sale deed No.462/2005 the plaint schedule property was sold by the defendant in favour of the 1st plaintiff and as per Ext.B1 there was agreement to re-convey the property on repaying sale consideration along with interest within one year. The same pre-supposes the fact that sale in favour of the 1st plaintiff was complete as per sale deed No.462/2005. The same pre-supposes the fact that sale in favour of the 1st plaintiff was complete as per sale deed No.462/2005. Thus, it is held that after execution of a sale deed of any nature, when an agreement is executed between the buyer and seller to re-convey the property, the sale become absolute and the remedy of the seller is to execute the agreement for sale to get re-conveyance of the property. Once the said remedy is not exhausted or no suit filed to set aside or to declare the so called sale deed as non-est or not binding on the plaintiffs, the sale deed is complete and the title of the property stood transferred in favour of the buyer. None of the parties produced sale deed No.462/2005 admittedly executed by the defendant in favour of the 1st plaintiff, before the court. On perusal of Ext.B1, as I have already pointed out, re-conveyance is agreed upon and the date of Ext.B1 is 23.02.2005. No steps were taken by the defendant to enforce Ext.B1 agreement within a period of 3 years and the remedy as per Ext.B1 has now become time barred. 12. The defendant did not file a Suit to declare either the sale deed No.462/2005 in favour of Sasidharan or Ext.A1 to set aside or to declare that the said documents are non-est or not binding on the defendant, within a period of 3 years and in such view of the matter, the sale deed in favour of 1st plaintiff became complete and, in turn, the 1st plaintiff sold the property to one Sasidharan as per sale deed No.2119/2006 and as per Ext.A1, Sasidharan sold the property back to the 1st and 2nd plaintiffs. Now the plea of the plaintiffs is to get recovery of possession of the plaint schedule property on the strength of their title deed and for prohibitory as well as mandatory injunction. 13. The trial court referred Ext.A6 encumbrance certificate in relation to the plaint schedule property. As per which, as on 10.02.2005, the defendant executed a sale deed in favour of one Ajithakumari and later Ajithakumari executed another sale deed on 14.02.2005 in favour of the defendant. Later, the defendant executed another sale deed in favour of the 1st plaintiff on 23.02.2005 and the 1st plaintiff transferred the same in favour of Sasidharan. As per which, as on 10.02.2005, the defendant executed a sale deed in favour of one Ajithakumari and later Ajithakumari executed another sale deed on 14.02.2005 in favour of the defendant. Later, the defendant executed another sale deed in favour of the 1st plaintiff on 23.02.2005 and the 1st plaintiff transferred the same in favour of Sasidharan. Subsequently on 14.08.2008 Sasidharan executed Ext.A1 sale deed in favour of the plaintiffs herein. Ext.B1 was executed on 23.02.2005 on the date of execution of sale deed in favour of the 1st plaintiff with undertaking to re-convey the same, as already pointed out. 14. The present title deed Ext.A1 was executed on 13.08.2008. Though the 1st plaintiff denied execution of Ext.B1, when sale deed No.462/2005 was executed, Ext.B1 stipulates reconveyance of the property back to the defendant on payment of the amount received as sale consideration along with interest within a period of one year. A pertinent aspect to be noted is that at the time of execution of Ext.A1 the defendant also put signature as a witness therein concurring the transfer. Being an attestor to Ext.A1, the defendant concurred the transfer and also consented that she had no title over the plaint schedule property in any manner. If so, it could not be held that the contention raised by the defendant challenging sale deed No.462/2005, initially executed by her in favour of the 1st plaintiff and the present sale deed Ext.A1 would succeed in any manner. Most importantly, no challenge raised either to set aside or to declare the document as null and void in a properly instituted proceedings or by raising a counter claim in the present Suit. In the decision reported in [ 2023 (6) KHC 500 ], Fathima Beevi v. Abdul Rahman, this Court discussed the remedy of an executant and non executant to avoid a sale deed and it was held in paragraphs 13 and 14 as under: “13. In decision in Suhrid Singh @ Sardool Singh v. Randhir Singh and Others, reported in (2010 KHC 4216), the Apex Court considered the question as to payment of court fee when the prayer is one for declaration that the deeds do not bind the plaintiff or his right on the plaint schedule property and it was held that, where the executant of a deed wanted to annul a deed, he had to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he had to seek a declaration that the deed is invalid or non-est or illegal or that it is not binding on him. The following explanation also was given by the Apex Court to make the position more vivid and the same is as under: “The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A' and ‘B' two brothers. ‘A' executes a sale deed in favour of ‘C'. Subsequently ‘A' wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if ‘B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by ‘A' is invalid/void and non-est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non binding. But the form is different and court fee is also different. If ‘A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If ‘B', who is a non executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Art 17(iii) of Second Schedule of the Act. But if ‘B', a non executant, is not in possession and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under S.7(iv)(c) of the Act. S.7(iv)(c) provides that in suits for a declaratory decree with consequential relief the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of S7.” It was held further in paragraph No.9 as under: “9. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of S7.” It was held further in paragraph No.9 as under: “9. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the “coparcenery and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under S.7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.” 14. Thus, the legal position emerges is that, when there is a sale deed, if the executant wanted to annul the same, he had to seek cancellation of the said deed or the relief to set aside the deed. If a non-executant seeks annulment of a deed, he had to seek a declaration that the deed is invalid, or non-est or, illegal or that the deed is not binding upon him. In this matter, the plaintiff not sought the relief to declare Ext.B1 as invalid, or non-est or, illegal or that the deed is not binding upon him. In fact, the plaintiff could not succeed without seeking such a relief and getting the said relief allowed.” 15. As per the available evidence, it could be gathered that the trial court as well as the appellate court rightly found title of the plaintiffs over the plaint schedule property and in consequence thereof, the relief of recovery of possession also was granted along with perpetual injunction. 16. Thus in this matter, there is no substantial question of law arises to admit and maintain the same. 17. In order to admit and maintain the Second Appeal, substantial question of law necessarily to be formulated by the High Court within the mandate of Order XLII Rule 2 Read with Section 100 of C.P.C. 18. In this case, the learned counsel for the defendant failed to raise any substantial question of law warranting admission of the Second Appeal. 17. In order to admit and maintain the Second Appeal, substantial question of law necessarily to be formulated by the High Court within the mandate of Order XLII Rule 2 Read with Section 100 of C.P.C. 18. In this case, the learned counsel for the defendant failed to raise any substantial question of law warranting admission of the Second Appeal. Order XLII Rule 2 provides thus: “2. Power of Court to direct that the appeal be heard on the question formulated by it.-At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the defendant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.” 19. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 20. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 20. In the decision in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168 ], Nazir Mohamed v. J. Kamala and Others reported in the Apex Court held that: The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [ (1999) 3 SCC 722 ]. 21. In a latest decision of the Apex Court reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], Government of Kerala v. Joseph, it was held, after referring Santosh Hazari v. Purushottam Tiwari, [ 2001 (3) SCC 179 ] (three – Judge Bench), as under: For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court. 22. The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C, the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 23. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. All interlocutory applications pending along with this second appeal stand dismissed.