Two suits, namely, O.S. 256 and 328 of 2001 were jointly tried and disposed of by a common judgment. O.S.256 of 2001 was dismissed and the other suit was decreed. Appeals were filed against the judgment in both the suits by the plaintiff in O.S.256 of 2001 and the appeals were dismissed confirming the judgment and decree of the courts below.
2. The parties and facts are hereinafter referred to as they are available in O.S.256 of 2001 before the Munsiff's Court, Sasthamcotta. The first plaintiff is the son of the second plaintiff and the defendant is also the son of the second plaintiff but is the half brother of the first plaintiff. It is not in dispute that by virtue of Ext.A1 document, the plaintiffs and others received properties by way of a settlement deed. Subsequently the second plaintiff executed Ext.A4 document dated 27.7.2001 in favour of the first defendant assigning 35 cents of land in his favour. By Ext.A3 dated 11.9.2001 Ext.A4 was cancelled by the second plaintiff and she in turn on the very same day executed Ext.A2 sale deed dated 11.9.2001 in favour of first plaintiff.
3. The first plaintiff in O.S.256 of 2001 laid the suit on the allegation that the defendant is trying to trespass into the property which has been assigned in his favour by the second plaintiff.
4. The defendant resisted the suit. He pointed out that Ext.A4 in his favour is a valid and binding document and after the execution of Ext.A4 he had mutated the property and paid tax also thereby contending that he had obtained actual possession and was in enjoyment of the property. He therefore contended that the first plaintiff had not derived any right as per Ext.A2 document.
5. On the basis of the above pleadings, issues were raised and parties went to trial. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts. A1 to A4 from the side of the plaintiffs. The defendant examined himself as D.W.1 and had Exts. B1 to B4 marked. Ext.C1 is the commission report.
6. The defendant in O.S. 256 of 2001 in turn laid O.S. 328 of 2001 assailing the cancellation deed namely Ext.A3 and assignment in favour of the first plaintiff namely Ext.A2 document.
7. On an appreciation of the evidence in the case, the trial court as well as the lower appellate court came to the conclusion that Ext.A4 had taken effect and valid title had passed to the defendant in O.S.256 of 2001. If that be so, both the courts below held that the cancellation deed is bad in law. Accordingly the right claimed by the defendant in O.S.256 of 2001 was upheld and that suit was dismissed and the suit filed by the defendant was decreed.
8. Learned counsel appearing for the appellant contended that in the light of the fact that P.W.2, the second plaintiff had categorically denied the execution of the document, the burden was on the defendant to show that there is valid execution of the document. The evidence of P.W.2 was read out in which she says that she had not executed any document in favour of anybody and she had not received consideration from anybody. Under such circumstances, the burden was heavy on the defendant in the suit to prove that Ext.A4 is a valid document. Both the courts below omitted to notice these aspects and that has caused miscarriage of justice. It is therefore contended that the decrees and judgments cannot be sustained.
9. Learned counsel appearing for the respondent contended that both the courts below have considered the evidence in considerable detail and on an evaluation of the evidence came to the conclusion that Ext.A4 has come into force and mutation has been effected and tax has been paid by the defendant. It is clear from a reading of the evidence of P.W.2 that the so-called cancellation deed was made when she was staying with the first plaintiff and this vital aspect has been appreciated by the courts below and they found that the claim that no deed had been executed by the second plaintiff cannot be accepted. The finding that Ext.A4 is a valid and binding document is essentially a finding of fact. No substantial question of law as claimed arises for consideration and therefore the appeals are only to be dismissed.
10. The only question that arises for consideration is whether Ext.A4 is valid and binding and had taken effect. It is not in dispute that Ext.A4 is infact executed by the second plaintiff. The contention seems to be one of non est factum. It is also contended that there is misrepresentation and fraud played on the executant. Going by Order VI Rule 4 of the Code of Civil Procedure, if fraud, misrepresentation etc., are pleaded it is for the person who pleads fraud and misrepresentation to incorporate the necessary allegations and establish them. Of course P.W.2 has stated that she has not executed the document in favour of anybody which includes Ext.A2 based on which the suit was laid. She has been found to be an unreliable witness by both the courts below.
11. Both the courts below found that soon after the execution of Ext.A4 the property has been mutated and tax has been paid by the defendant in O.S.256 of 2001. That, according to the courts below, were sufficient to show that Ext. A4 is a valid document and possession has passed by virtue of that deed. The courts below held that in the light of the fact that sale deed has been executed and possession has been passed, the cancellation deed is bad in law. Further the courts below came to the conclusion that since Ext.A4 is a registered document, more sanctity is attached to the said document and on mere asking it cannot be set aside.
12. After having heard learned counsel on both sides and having perused the records, this Court finds little merit in the appeals filed by the first plaintiff. There is nothing to show that the findings arrived at by the courts below are either perverse or contrary to the evidence on records. Therefore interference under Section 100 of the Code of Civil Procedure is not warranted.
These appeal are without merits and are only to be dismissed. I do so.
P. BHAVADASAN, JUDGE sb.