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TMI Blog2022 (4) TMI 1647X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp;1,00,000/- from the defendant, who is a money lender, and as a security for the transaction Ext. B1 sale deed was executed. According to the plaintiff, he had retained possession of the plaint schedule property with him. The plaintiff further pleaded that on 25.8.2004 itself, the parties entered into an oral agreement in which the defendant had agreed to re-convey the plaint schedule property on payment of Rs. 1,00,000/- with interest at the rate of 12% per annum. Towards the oral karar, the plaintiff paid Rs. 10,000/- on 5.3.2005 and Rs. 14,500/- on 30.7.2005 as advance. On 4.8.2006, the plaintiff requested the defendant to reconvey the plaint schedule property after receipt of the amount due to him. The defendant refused to execute the sale deed as requested by the plaintiff. 2.3. The defendant resisted the suit contending that he never lent money to the plaintiff. The defendant had paid Rs. 1,78.500/- to the plaintiff on 25.8.2004 and purchased the plaint schedule property. Immediately after the execution of the assignment deed in respect of the plaint schedule property, the defendant was given possession of the same. The plaintiff has no right or posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Exhibit B1 deed of assignment, instead of admitting its execution, whether the plaintiff is entitled to the benefit of Section 91 or the proviso to Section 92 of the Evidence Act to tender evidence assailing the execution and the validity of Exhibit B1, and whether the appellate court is justified in reversing the decree and judgment of the trial court accepting the evidence rendered by the plaintiff as sufficient to rebut the presumptive value of Exhibit B1 of assignment. 4. Is not the plaintiff burdened to prove the borrowal of an amount of Rs. 1 lakh from the defendant, in exchange of execution of Exhibit B1 deed of assignment, and in the absence of any evidence with regard to the borrowal of an amount of Rs. 1 lakh and also to substantiate the plea of oral agreement for sale, whether the appellate court was justified in reversing the decree and judgment of the court below granting a decree for specific performance treating the amounts shown in Exhibit B1 as part of the sale consideration of the oral agreement for sale?" 8. Heard Sri. T.N. Manoj, the learned counsel for the appellant/defendant and Sri. G. Sreekumar Chelur, the learned counsel appearing for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The fact that prior title deeds were also obtained by the plaintiff along with Ext. B1 indicates that the transaction was not a sale but, a money transaction.; (6) The evidence regarding a complaint before the Police, wherein the defendant had promised to reconvey the property on payment of the amount with interest, would probabilise the case of the plaintiff. 12. The learned counsel for the appellant/defendant contended that Ext. B1 sale deed, a registered document, carries a mandatory presumption under Section 34(2) of the Registration Act with regard to execution and registration and in the absence of pleadings and cogent evidence tendered from the side of the respondent/plaintiff to rebut such a presumption, the First Appellate Court was not justified in granting a decree for specific performance. The learned counsel would further contend that the First Appellate Court ignored the settled principle that there must be cogent and reliable evidence to grant the specific performance based on an oral agreement. As the defendant established that he has title over the plaint schedule property by virtue of Ext. B1 the principle that `possession follows title' is applicable to the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds in respect of the property, at the time of the assignment of the property. DW1 remitted land tax in respect of the property as per Ext. B4. 16. Going by Ext. B1, what is evident is that an outright sale as provided under Section 54 of the Transfer of Property Act had taken place. Ext. B1 is a registered sale deed. The specific case of the defendant is that he had no money transaction as pleaded by the plaintiff. Both sides adduced evidence in support of their rival contentions. Apart from the interested testimonies of PWs 1 and 2, the plaintiff and his wife, there is no other convincing evidence or circumstance to enter into a conclusion that an oral agreement in respect of the sale of the property had taken place on 25.8.2004. In Grasim Industries Ltd. v. Agarwal Steel [(2010) 1 SCC 83] the Apex Court held that when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signature thereon, otherwise no signature on a document can ever be accepted. 17. In Prem Singh v. Birbal [2006 (2) KLT 863 (SC)] the Apex Court held that there is a presumption that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned by it that the plaintiff has failed to prove the agreement pleaded in the plaint." 21. In Balakrishnan v. Yakoob and Others [2001 KHC 32], this Court held that even though preponderance of probability constitutes sufficient ground for decision in civil proceedings there must be cogent and reliable evidence to base a suit for specific performance on the basis of an oral agreement. In Ummer and another v. Kunhava alias Ahammedkutty [2007 (4) KHC 315], this Court held that a decree for specific performance could not be granted based on an oral agreement supported by evidence unless there is cogent evidence to prove the agreement. 22. In Brij Mohan and Others v. Sugra Begum and Others [(1990) 4 SCC 147) the Apex Court held that in a case where the plaintiffs come forward to seek a decree for specific performance of a contract of sale of immovable property on the basis of an oral agreement alone, a heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for the sale of immovable property. 23. In the case on hand, the plaintiff failed to establish evidence on the touchstone of the principles discussed above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, this Court was dealing with a case in which the genuineness of an agreement for sale in respect of a property was under challenge. The plaintiff therein pleaded that the original title deeds were also handed over along with the agreement for sale. In that situation, this Court held that handing over the original documents to the respondent at the time of execution of the sale agreement was a circumstance that indicated that the transaction was not one for purchase of the suit property but a money transaction. The ratio in Sarada's case (supra) is distinguishable on the facts. In the present case, it was after the execution of the sale deed the prior title deeds were handed over to the defendant. While dealing with the finding of the First Appellate Court in this regard, it is relevant to refer to subsection (3) of Section 55 of the Transfer of Property Act. Sub-section (3) of Section 55 of the Transfer of Property Act reads thus:- "55. Rights and liabilities of buyer and seller.- In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp;24,500/- and execution of Ext. B1 deed of assignment, the plaintiff failed to discharge the burden cast on him. 28. The First Appellate Court misconstrued the evidence and failed to draw necessary presumptions and inferences on the pleadings and evidence. The First Appellate Court lost sight of the settled principle that a decree for specific performance could not be granted based on an oral agreement unless there was cogent evidence to prove the same. The finding of the First Appellate Court that the plaintiff is in possession of the plaint schedule property is contrary to the evidence available. The First Appellate Court was not justified in reversing the decree and judgment of the trial Court. The Court also lost sight of the evidentiary burden on the plaintiff by invoking the proviso under Section 92 of the Evidence Act assailing the execution of Ext. B1. The resultant conclusion is that the judgment and decree passed by the First Appellate Court are liable to be set aside. In the result, the Regular Second Appeal is allowed. The judgment and decree passed by the Additional District Court, Irinjalakkuda in A.S. No. 12 of 2008 are set aside. The judgment and decree passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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