VELUTHA KUNJU Vs. NEELAKANTAN NAIR

JUDGEMENT

(1.) Appellant is defendant No. 1 in O.S. 354 of 1119 of Adoor Munsiffs Court. The suit is for cancellation of Ext. 1 sale deed for plaint property dated 29.11.1117 executed by defendant No. 2, to defendant No. 1, for declaration of title and recovery of property with mesne profits. The following is the gist of plaintiffs case. The plaint property 9 cents in extent belonged to defendant No. 3 a Seshakaran of plaintiff and defendant No. 2. Defendant No. 3 received Rs. 12 from plaintiff on the agreement that he would sell the property to him and in pursuance to the agreement executed Ext. B sale deed on 9.8.1117. When defendant No. 3 took the sale deed to plaintiff, he found out that the name of defendant No 2 his cousin was mentioned in the sale deed as the vendee and therefore he declined to accept it. Hence defendant No. 3 executed a second sale deed in favour of plaintiff Ext. A on 26.10.1117 and put plaintiff in possession of the property. While so, some differences arose between defendant No. 2 and plaintiff and defendant No. 2 on the strength of Ext. B executed Ext. 1 sale deed to defendant No. 1 on 29.11.1117 and defendant No. 1 trespassed on the property. The plaintiff therefore sues for cancellation of Ext. 1, for declaration of title and recovery of property.

(2.) Though all the 3 defendants have filed their written statements, defendant No.1 alone contests the suit. Defendant No.1 contends that Ext. B was not brought about by mistake, that it was executed by defendant No. 3 to defendant No. 2 for consideration, that defendant No. 2 was put in possession of the property, that he was also paying Sirkar tax and subsequently defendant No. 2 executed Ext. 1 sale deed on 29.11.1117 to him for a consideration of Rs. 18, that he was put in possession of the property, that the trespass alleged is false, that mutation of names has also been effected his favour, that defendant No. 3 had no right to execute Ext A sale deed on 26.10.1117 to plaintiff after the execution of Ext. B sale deed on 9.8.1117 to defendant No. 2, that Ext. A is invalid, that plaintiff gets no rights over the property under Ext. A and that the suit has to be dismissed. Defendant No. 2 supports defendant No. 1 and defendant No. 3 supports plaintiff. The Trial Court decreed the suit. In appeal by defendant No.1 the decree of the Trial Court was only confirmed. Hence the second appeal by defendant No. 1.

(3.) On hearing the counsels on both sides we do not find our way to interfere with the decree of the lower court. The lower courts find that Ext. B was executed in the name of defendant No. 2 through mistake, that the real intention of defendant No. 3 was to execute the sale deed in favour of plaintiff, that consideration for Ext. B passed from plaintiff and not from defendant No. 2, that plaintiff got possession under Ext. A on 26.10.1117, that defendant No. 1 is a trespasser, that Ext. 1 has therefore to be set aside and that plaintiff is entitled to the decree prayed for. The learned counsel for the appellant contends that defendant No. 3 is the seshakaran of plaintiff and defendant No. 2 and that therefore there is no scope for the mistake in the name of the vendee in Ext. B. No doubt there is some force in the argument. But, it has to be remembered that plaintiff was not present at the time of the execution of Ext. B, and that defendant No. 3 is an illiterate man. This apart, if as a matter of fact defendant No. 2 paid the consideration for Ext. B and if the document was intended to be executed in his favour one fails to see why defendant No. 2 allowed defendant No. 3 to retain possession of Ext. B. Ext. B is produced in court by plaintiff along with the plaint. Defendant No. 1 has not chosen to examine his vendor defendant No. 2. In the circumstances of the case his evidence is material and his non examination raises an adverse inference against the case set up by defendant No. 1. All things considered, we do not feel persuaded to upset the concurrent findings of fact entered by the lower courts.