1. This appeal arises out of the judgment and decree in O.S. No.43/2003 on the files of the Munsiff Court, Erattupetta, as affirmed by the District Court, Kottayam, in A.S. No.254/2007. The suit was instituted by the respondent / plaintiff for declaration of title and prohibitory injunction.

2. The brief facts necessary for the disposal of the appeal are as follows:-

                  On 18.01.2003, the appellant herein executed a sale deed in favour of the plaintiff, conveying the right title and interest over the plaint schedule property. The sale consideration was an amount of Rs.15,000/-. The mode of payment of the sale consideration was through a cheque bearing No.392731 drawn in favour of the North Malabar Gramin Bank, Erattupetta Branch. The cheque amount was collected by the defendant on 27.01.2003. Later it was found that the defendant had unilaterally cancelled the sale deed by executing a cancellation deed No.400/2003. Hence, the suit for declaration of title. The defendant resisted the suit by contending that there is no valid sale consideration, which passed on to his hands. It was further contended that the cheque in question was not received by him and that is the reason why he executed a cancellation deed. It was also stated that the defendant believed the words of the plaintiff inasmuch as the parties were close relatives. On behalf of the plaintiff, Exts.A1 to A5 documents were produced and PW1 to PW4 were examined. On behalf of the defendant, Exts.B1 to B5 documents were produced and DW1 to DW4 were examined. Ext.C1 is report of the Advocate Commissioner. Exts.X1 to X2 series are the third party exhibits, marked through the Manager of the State Bank of Travancore, Karimkunnam Branch and the Manager of the North Malabar Gramin Bank, Erattupetta Branch. The trial court on appreciation of the oral and documentary evidence came to the conclusion that the defendant has failed to prove the contention that Ext.A1 sale deed was not supported by any valid consideration. Accordingly, the suit was decreed. Aggrieved, the defendant preferred A.S No.254/2007 before the District Court, Kottayam, and by judgment dated 30.11.2010, the appeal was dismissed and hence the present appeal.

3. On 30.01.2012, while admitting the appeal this Court framed the following substantial questions of law:-

                  (i) Whether the transaction alleged in Ext.A1, sale deed is supported by valid consideration as envisaged under Section 25 of the Indian Contract Act?

                  (ii) Whether the transaction alleged in the plaint is hit by the provision of Section 23 of the Contract Act?

4. Heard Shri.S.Vidyasagar, the learned counsel appearing for the appellant and Shri.Mathew John, the learned counsel appearing for the respondent.

5. The learned counsel appearing for the appellant submitted that the fraud played by the plaintiff on the defendant is evident inasmuch as his failure to hand over the cheque, stated in Ext.A1 sale deed. The fact that the plaintiff failed to hand over the cheque has been duly proved through Exts.X1 to X2 series and also the evidence of DW1 and DW2, Who are the Managers of the State Bank of Travancore, Karimkunnam Branch and the North Malabar Gramin Bank, Erattupetta Branch. It is further pointed out that there was a criminal proceedings against the plaintiff in C.C No.85/2005, which ended in an acquittal on the files of Judicial First Class Magistrate Court, Erattupetta, and on appeal by the appellant the judgment was reversed by the Additional District and Sessions Court-V, Kottayam, in Crl.A No.125/2014. It is further pointed out that subsequently on production of Exts.X1 to X2 series, which was revealed that the cheque, which was mentioned in Ext.A1 sale deed, was encashed by one Santhosh Abraham, who is now stated to be absconded. The evidence of DW2 would further show that the said Santhosh Abraham was introduced by one Biju Lukose, who is none other than a close relative of the plaintiff. Thus it is contended that the chain of events, which has unfolded during the trial has proved the claim of the defendant that the cheque was not handed over while execution of Ext.A1 sale deed and thus Ext.A1 sale deed is not supported by any valid consideration and thus it caused him to cancel it by executing Ext.A3 cancellation deed.

6. Per contra, Shri.Mathew John the learned counsel appearing for the respondent supported the findings rendered by the courts below and contended that the concurrent findings recorded by the courts below does not call for any interference by this Court. It is pointed out that a reading of Ext.A1 sale deed specifically shows the handing over of the cheque through the transaction between the defendant and Santhosh Abraham is not clearly spelt out. At any right, the documents produced before the courts below would show that the cheque in question was cleared and the amount was debited from the account of the plaintiff. If the defendant had a case that the cheque was not handed over to him, but it was encashed through Santhosh Abraham, it was incumbent upon him to have examined Santhosh Abraham in order to prove his contention. Therefore, it is pointed out that the concurrent findings recorded by the courts below does not call for any interference by this Court in exercise of its powers under Section 100 of the Code of Civil Procedure.

7. I have considered the rival submissions raised across the Bar, perused the judgments rendered by the courts below and also the records of the case.

8. In order to answer the substantial questions of law framed by this Court, it is imperative for this Court to look into the sequence of events, which is unfolded on and after execution of Ext.A1 sale deed. A cursory glance of Ext.A1 sale deed would show that the method of payment of sale consideration of Rs.15,000/- as mentioned is through a cheque bearing No.392731 drawn on the North Malabar Gramin Bank, Erattupetta. There is a statement in Ext.A1 that the cheque has been handed over. It is trite law that a registered document carries a presumptive value as regards its execution which is of course rebuttable (Prem Singh and others v. Birbal and others [(2006) 5 SCC 353]).

9. When one judges the acceptability of Ext.A1 in the context of the provisions contained under the Registration Act, 1908, it is clear that, it is the burden of the defendant to rebut the presumption regarding the context therein. Though oral evidence is permissible in terms of Section 92 of the Indian Evidence Act, 1872, the same is only permissible to the extent of proving any mistake of fact or law as regards the contents of a document. In the present case, what is contended is the non-receipt of a cheque, by which the sale consideration was shown to be paid. There is no explanation forthcoming from the side of the appellant as to why despite the plaintiff not handing over the cheque, he proceded to execute the registered sale deed in favour of the plaintiff. He was under no obligation to execute the sale deed, if he found that the plaintiff has not handed over the cheque to him at the time of execution.

10. The plea now raised before this Court is that since the parties were relatives, the defendant believed the words of the plaintiff that the cheque would be handed over to him after the execution of the sale deed. This probable case set up by the defendant cannot be believed by this Court. At any rate, when Ext.X1 to Ext.X2 series were marked, it became clear that an amount of Rs.15,000/- was debited from the account of the plaintiff. It is the case of the defendant that the cheque was encashed by one Santhosh Abraham. The further case pleaded before this Court is that Santhosh Abraham was introduced by one Biju Lukose, who is a close relative of the plaintiff cannot also be appreciated by this Court.

11. Still further, no explanation is caused by the appellant to state as to why both Biju Lukose and Santhosh Abraham were not examined before the trial court. The best person to have spoken about regarding the transaction is Santhosh Abraham. It appears that the defendant had not taken any steps to have Santhosh Abraham called as a witness before the trial court to examine in order to elicit true state of facts as evidenced from these proceedings. Therefore, the irresistible conclusion is that the defendant had failed in his duty to establish the defence as pleaded before the courts below.

12. Alternatively, the argument now raised before this Court is based on the evidence of a scribe of the document. The scribe of the document Ext.A1 was examined in a criminal proceeding as C.C No.85/2005 on 12.07.2011. A copy of the oral testimony of the scribe of Ext.A1 document is placed on record before this Court. This Court has carefully considered the evidence tendered by the scribe. All though the evidence recorded in a criminal proceeding, cannot be raised against the parties in a civil litigation, since the question involved in the present case is as regards the entrustment of a cheque to the defendant by the plaintiff, this Court had glanced through the evidence of the scribe. No doubt, the scribe has spoken about the fact that the cheque was not handed over to the defendant. But again, no explanation is forthcoming as to why the said scribe was not examined in the civil proceedings. Therefore, in the absence of the scribe in the witness list before the civil court, the evidence tendered by him in a criminal proceedings cannot be raised against the plaintiff in these proceedings.

13. At any rate, going by evidence of PW4 in the present case, which is none other than the son of the scribe, who accompanied the defendant before the Sub Registrar office, shows that he has witnessed the plaintiff handing over the cheque to the defendant. Although PW4 was thoroughly cross examined, no adverse inference was elicited by the defendant out of the said testimony.

14. Scanning through the judgment of the trial court, as affirmed by the First Appellate Court, it clearly shows that the trial court has concluded that, since a case of non-receipt of a cheque was set up by the defendant and that a further case was pleaded that the cheque was handed over by the plaintiff to Santhosh Abraham, the trial court has correctly found that it was the burden of the defendant to prove the transaction under what circumstances the cheque happened to be in the hands of Santhosh Abraham. In the absence of any such effort taken by the defendant to examine the said person, it is not possible for this Court to hold that the suit could not have been decreed on the probabilities of the case pleaded by the defendant and uphold the contentions of the defendant and dismiss the suit. In such circumstances, this Court cannot but notice the fact that the courts below have correctly appreciated the facts and the law on the point.

15. Accordingly, this Court is inclined to answer the substantial questions of law framed in the memorandum of appeal against the appellant as follows:-

                  (a) The transaction alleged under Ext.A1 sale deed is supported by valid sale consideration and envisaged under Section 25 of the Indian Contract Act, 1872 and that the defendant has failed to discharge the burden of proving that it is not otherwise.

                  (b) The transaction alleged in the plaint is not hit by Section 23 of the Indian Contract Act, 1872.

                  Resultantly, the concurrent findings rendered by the courts below are upheld and the appeal fails and the same is dismissed.