Kerala High Court
Omana Amma vs Ratnakaran Pillai (Died), Lhrs ... on 4 April, 2025
RSA No.731/2012 & 666 /2012
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 4TH DAY OF APRIL 2025 / 14TH CHAITHRA, 1947
RSA NO. 731 OF 2012
AGAINST THE JUDGMENT&DECREE DATED 31.01.2012 IN AS NO.91 OF 2001 OF
SUB COURT,KOTTARAKKARA ARISING OUT OF THE JUDGMENT & DECREE DATED
31.07.2001 IN OS NO.398 OF 1996 OF MUNSIFF COURT, KOTTARAKKARA
PLAINTIFF/APPELLANT/APPELLANT:
OMANA AMMA
S/O. SIVARAMAN PILLAI, VALLAVANKARA KIZHAKKETHIL HOUSE,
THEKKUMPURAM MURI, POTHOOR VILLAGE & P.O.691 507,
KOTTARAKKARA TALUK, KOLLAM DISTRICT.
BY ADVS.
SRI.P.T.GIRIJAN
SRI.C.MURALIKRISHNAN (PAYYANUR)
SRI.ABRAHAM GEORGE JACOB
SHRI.AKSHAY R
DEFENDANTS/RESPONDENTS/RESPONDENTS:
1 RATNAKARAN PILLAI, (DIED) LHS IMPLEADED
S/O. NEELAKANTHAN UNNITHAN, JAYA BHAVAN, CHERUMANGADU SHYAM
SADANAM, CHERUMANGADU, PUTHOOR VILLAGE & P.O.-691 507,
KOTTARAKKARA TALUK, KOLLAM DISTRICT.
2 LATHAKUMARI
D/O. OMANA AMMA, JAYA BHAVAN, CHERUMANGADU SHYAM SADANAM,
CHERUMANGADU, PUTHOOR VILLAGE & P.O.-691 507,
KOTTARAKKARA TALUK, KOLLAM DISTRICT.
3 B.SANKARA PILLAI (DELETED)
S/O. KUNJU RAMAN PILLAI, RAVEENDRA SADANAM, CHERUMANGADU,
PUTHOOR VILLAGE & P.O.-691 507, KOTTARAKKARA TALUK, KOLLAM
RSA No.731/2012 & 666 /2012
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DISTRICT. (R3 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF
APPELLANT AS PER ORDER DATED 14.06.2022 IN IA NO.1/2022.)
ADDL. R4 SHARANYA
AGED 32 YEARS,DAUGHTER OF RATNAKARAN PILLAI,JAYA
BHAVAN,CHERUMANGADU SHYAM,SADANAM,CHERUMANGDU,PUTHOOR
VILLAGE & P.O.691507,KOTTARAKARA,KOLLAM DISTRICT
ADDL. R5 SHYAMKUMAR
AGED 35 YEARS,SON OF RATNAKARAN PILLAI,JAYA
BHAVAN,CHERUMANGADU SHYAM,SADANAM,CHERUMANGDU,PUTHOOR
VILLAGE & P.O.691507,KOTTARAKARA,KOLLAM DISTRICT. (THE LEGAL
REPRESENTATIVES OF DECEASED FIRST RESPONDENT ARE IMPLEADED
AS ADDL.RESPONDENT 4 AND 5 AS PER ORDER DATED 24.06.2022 IN
IA.NO.2/2022)
BY ADVS.
R1 TO R5 BY SENIOR ADV.P.B.KRISHNAN
R1, R4. R5 BY P.B.SUBRAMANYAN
R1 BY SMT. GEETHA P MENON
R1 BY N.AJITH
R4 AND R5 MANU VYASAN PETER
R4 AND R5 BY SABU GEORGE
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04.04.2025,
ALONG WITH RSA.666/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA No.731/2012 & 666 /2012
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 4TH DAY OF APRIL 2025 / 14TH CHAITHRA, 1947
RSA NO. 666 OF 2012
AGAINST THE JUDGMENT &DECREE DATED 31.01.2012 IN AS NO.90 OF 2001
OF SUB COURT ,KOTTARAKKARA ARISING OUT OF THE JUDGMENT&DECREE DATED
31.07.2001 IN OS NO.604 OF 1996 OF MUNSIFF COURT, KARUNAGAPPALLY
APPELLANT/APPELLANT/PLAINTIFF:
OMANA AMMA
S/O.SIVARAMAN PILLAI, VALLAVANKARA KIZHAKKETHIL HOUSE,
THEKKUMPURAM MURI, POTHOOR VILLAGE, KOTTARAKARA TALUK,
KOLLAM DISTRICT.691507
BY ADVS.
SRI.P.T.GIRIJAN
SRI.C.MURALIKRISHNAN (PAYYANUR)
SRI.ABRAHAM GEORGE JACOB
SHRI.AKSHAY R
RESPONDENT/RESPONDENTS/DEFENDANTS:
1 RATNAKARAN PILLAI(DIED)
S/O.NEELAKANTHAN UNNITHAN, JAYA BHAVAN, CHERUMANGADU SHYAM
SADANAM, CHERUMANGADU, PUTHOOR VILLAGE, KOTTARAKARA TALUK,
KOLLAM DISTRICT.
2 LATHAKUMARI
D/O.OMMAN AMMA, JAYA BHAVAN, CHERUMANGADU SHYAM SADANAM,
CHERUMANGADU, PUTHOOR VILLAGE, KOTTARAKARA TALUK, KOLLAM
DISTRICT.
ADDL. R3 SHARANYA
RSA No.731/2012 & 666 /2012
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AGED 32 YEARS,DAUGHTER OF RATNAKARAN PILLAI,JAYA
BHAVAN,CHERUMANGADU SHYAM,SADANAM,CHERUMANGDU,PUTHOOR
VILLAGE & P.O.691507,KOTTARAKARA,KOLLAM DISTRICT
ADDL.R4 SHYAMKUMAR
AGED 35 YEARS,SON OF RATNAKARAN PILLAI,JAYA
BHAVAN,CHERUMANGADU SHYAM,SADANAM,CHERUMANGDU,PUTHOOR
VILLAGE & P.O.691507,KOTTARAKARA,KOLLAM DISTRICT.(THE LEGAL
HEIRS OF THE DECEASED R1 ARE IMPLEADED AS ADDL.R3 & R4 AS
PER ORDER DATED 16.12.2022 IN IA.NO.1/2022)
BY ADVS.
R1 BY SRI.N.AJITH
R1 TO R4 BY P.B.KRISHNAN
R2 BY SMT.GEETHA P.MENON
R1 TO R4 BY SRI.P.B.SUBRAMANYAN
R2 TO R4 BY SABU GEORGE
R2 TO R4 BY MANU VYASAN PETER
THIS REGULAR SECOND APPEAL HAVING BEEN FIN
ALLY HEARD ON 04.04.2025, ALONG WITH RSA.731/2012, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
RSA No.731/2012 & 666 /2012
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JUDGMENT
[RSA Nos.731/2012, 666/2012]
1. Since both these appeals arise from two suits--O.S
No.398/1996 and O.S No.604/1996--which were jointly tried
and disposed of by the Trial Court by a common judgment, I
dispose of these appeals by a common judgment.
2. The appellant is the plaintiff in both appeals. In O.S
No.398/1996 there are five defendants. In O.S No.604/1996, the
defendants 1 and 2 in O.S No.398/1996 are the defendants. The
defendants No.3 to 5 in O.S No.398/1996 are the relatives of
defendants 1 and 2 who support the defendants 1 and 2. The
dispute is essentially between the plaintiff and the defendants 1
and 2 in the suits. The defendants 1 and 2 are husband and
wife.
3. The plaint schedule property in O.S No. 398/1996 is 7.5 cents
in Sy. No. 107/9 of Pavithreswaram village in Kottarakkara
Taluk. The plaint Schedule property in O.S No. 604/1996 is
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Residential Building No.III/859 and attached shed in the
aforesaid 7.5 cents of land.
4. The case of the plaintiff in substance is that the aforesaid 7.5
cents and the building therein belonged to the plaintiff as per
Ext.A1 Sale Deed dated 16.08.1994 executed by the 1st
defendant in favour of the plaintiff. On execution of Ext.A1 the
defendants 1 and 2 vacated the plaint schedule property.
Thereafter, the defendants 1 and 2 requested the plaintiffs to
lease out the residential building in the plaint schedule property
for a monthly rent of Rs.500/-. Thus the plaintiff leased out the
residential building and attached shed to the defendants 1 and
2 as per Ext. A8 Rent Deed dt. 30.01.1996. The defendants
failed to pay the rent regularly. The plaintiff issued Ext.A9 Notice
dated 24.08.1996 to the defendants 1 and 2. On account of this
enmity, the defendants 1 and 2 with the defendants 3 to 5 in O.S
No. 398/1996 forcibly took the yield from the property and
destroyed cultivation. They obstructed the plaintiff from enjoying
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the plaint schedule property peacefully. Hence, O.S.
No.398/1996 was filed seeking a permanent prohibitory
injunction restraining the defendants from committing any act of
waste and mischief in the plaint schedule property and from
interfering with the possession and enjoyment of usufructs by
the plaintiff and except residing in the building.
5. Plaintiff filed O.S No.604/1996 with the very same allegations
and further pleading that the plaintiff requires the residential
building leased to the defendants 1 and 2 for her own use
seeking recovery of possession with arrears of rent amounting
to Rs.4,500/- with interest and the future rent @ Rs.500/- per
month.
6. The defendants opposed the suit prayers in both the suits by
filing Written Statements contending that Ext.A1 document was
executed as a security for borrowing an amount of Rs.10,000/-
by the defendants 1 and 2 from the plaintiff. Ext.A1 Sale Deed
is to be treated as a mortgage deed. The defendant did not
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execute any Rent deed in favour of the plaintiff. The defendants
did not hand over possession of the plaint schedule property to
the plaintiff after the execution of Ext.A1. Ext.A1 was not
intended to take effect. It did not come into force. The plaint
schedule property remained in the possession of the defendants
1 and 2. The Agreement between the plaintiff and defendants 1
and 2 was that the plaintiff would execute a re-conveyance deed
on repayment of the amount borrowed from the plaintiff. The
plaintiff has no title or possession over the plaint schedule
property.
7. Both the suits were jointly tried treating O.S NO.398/1996 as the
leading case. On the side of the plaintiff, the plaintiff was
examined as PW1, and one witness was examined as PW2,
and Exts.A1 to A15 documents were marked. On the side of the
defendants, the 1st defendant was examined as DW1, and one
witness was examined as DW2 and Exts. B1 to B7 documents
were marked. Mahazar, Report, and Rough Sketch prepared by
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the Advocate Commissioner were marked as Exts.C1 to C3.
8. The Trial Court dismissed both the suits holding that the plaintiff
did not obtain possession of the plaint schedule property as per
Ext.A1 Sale Deed; that Ext.A1 is to be ignored as Ext.A1 did not
fulfill the requirements of S.54 of the Transfer of Property Act as
delivery of the plaint schedule property was not given to the
plaintiff; that there is no landlord-tenant relationship; that Ext.A8
Rent deed is not executed by the defendants 1 and 2; that
Ext.A9 is not valid Notice as required under S. 106 of the
Transfer of Property Act.
9. Though the plaintiffs filed A.S.Nos.90/2001 and 91/2001
challenging the judgments and decrees in both the suits, the
same were dismissed, confirming the judgments and decrees
passed by the Trial Court. This Court admitted these two
Regular Second Appeals on the following substantial questions
of law.
1. Will not handing over the basic title deeds of the vendor to the
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vendee along with the sale deed executed by the vendor in favour
of the vendee satisfy the legal requirement of handing over the
properties sold?
2. In case of tenancy by holding over which is governed by S.116
of the Transfer of property Act, whether notice to quit should be in
strict conformity with S.106 of the TP Act? Should a notice to quit
be construed with a view to find fault with rather than to find its
validity?
3. When application for granting ration cards has to be made
months earlier and when enumeration and preparation of voters
list for an election to be conducted one year or later, can these
ration cards and voters list form the basis to a situation in which by
subsequent events the position of parties has changed?
10. After hearing the appeals in part, I formulated the following
additional Substantial questions of law in these appeals and
heard both counsel further.
Addl. 4. Whether the Trial Court and the First Appellate Court are
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justified to hold that Ext.A1 was not intended to be sale deed and
that it is only a security for loan?
Addl.5. Whether the Trial Court and the First Appellate Court are
justified in refusing the relief of permanent prohibitory injunction
sought for in O.S.No.398/1996?
11. I heard the learned counsel for the appellant in both the
appeals Sri. C. Murali Krishnan and the learned Senior Counsel
for the respondents 1 and 2 in both the appeals
Sri.S.V.Balakrishna Iyer instructed by Adv. Sri.P B
Subramaniam.
12. The learned counsel for the appellant/plaintiff contended that
the plaintiff derived title and possession of the plaint schedule
property as per Ext.A1 registered sale deed dated 16.08.1994.
It fully satisfies the requirements of S.54 of the Transfer of
Property Act. S.54 does not provide that sale is complete only
when delivery is given to the purchaser. The Trial Court acted
illegally holding that Ext.A1 does not fulfill the requirements of
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S.54 of the Transfer of Property Act, finding that delivery was
not given. The recitals in Ext.A1 itself would prove that the
property was delivered to the plaintiff by the 1st defendant.
Counsel for the appellant cited the decision of the Hon'ble
Supreme Court in Damodhar Narayan Sawale (D) through
LRs. v. Tejrao Bajirao Mhaske [AIR 2023 SC 3319] to
substantiate that where a deed of sale has been duly executed
and registered, its delivery and payment of consideration have
been endorsed thereon, it would amount to full transfer of
ownership so as to entitle its purchaser to maintain a suit for
possession of the property sold. The plaintiff effected mutation
of the property, transfer of municipal assessment of the building,
transfer of electric connection on the basis of Ext.A1 Sale Deed.
The Village Officer concerned issued Ext.A15 Possession
Certificate in favour of the plaintiff. The plaintiff produced
Exts.A2 & A14 series Land Tax Receipts, Exts.A3, A4 and A13
series Building Tax Receipts to prove possession of the plaintiff
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over the plaint schedule property. The execution of Ext.A8 Rent
Deed on 30.01.1996 by the defendants in favour of the plaintiff
itself would indicate that the defendants had vacated the plaint
schedule property and thereafter started residing in the plaint
schedule property later on the strength of Ext.A8 Rent Deed.
There is nothing on record to prove the residence of the plaintiff
in the plaint schedule residential building for the period from
16.08.1994 to 30.01.1996. The Trial court as well as the First
Appellate Court illegally relied on Ext.B1 Ration Card dt
22.11.1994 and Ext.B7 Voters List of the year 1995 dt.
01.01.1995 to hold that the defendants 1 and 2 continued their
residence in the residential building in the plaint schedule
property even after execution of Ext.A1 sale deed. Both the
Courts failed to understand that the proceedings for issuance of
those documents would have been initiated long before the
issuance of those documents and on mere issuance of those
documents, possession as on the date of issuance could not
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be found in favour of the defendants 1 and 2. With respect to
the claim that the Ext.A1 sale deed was executed as a security
for the loan, there was no evidence for the same before the Trial
Court from the part of defendants 1 and 2. On the other hand,
defendants 1 and 2 did not have a consistent case with respect
to the alleged borrowing. In the Written statement they
contended that they borrowed an amount of Rs.10,000/- from
the plaintiff whereas in evidence PW1 contended that the
amount borrowed was 15,000/-. Ext.A1 sale deed would
indicate that the consideration therein is Rs.15,000/-. If the
borrowing was only Rs.10,000/- there was no need for
executing Ext.A1 for Rs.15,000/-. Ext.A6 prior title deed was
also given to the plaintiff when Ext.A1 document was executed.
If Ext.A1 was executed only as a security, there was no need to
hand over the prior title deed. Even though defendants 1 and 2
claimed that there were mediators for the dispute between the
plaintiff and defendants 1 and 2, nobody was produced to prove
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the same. The evidence of DW2 is insufficient as he is found to
be an interested witness. Ext.A9 Lawyer Notice fully complies
with S.106 of the Transfer of Property Act, and the finding to the
contrary is unsustainable. The learned counsel concluded by
submitting that the substantial questions of law are liable to be
answered in favour of the appellant, and the appeals are to be
allowed decreeing both the suits.
13. On the other hand, the learned Senior counsel for respondents
1 and 2 /defendants 1 and 2 contended that the Trial Court, as
well as the First Appellate Court, considered the pleadings and
evidence in the right perspective case and came to the correct
conclusion. The questions involved in the suits were only
questions of facts and no question of law is involved in the
matter. The Trial Court, as well as the First Appellate Court,
rightly found that Ext.A8 Rent Deed was not executed by
defendants 1 and 2 on account of the glaring differences in the
signatures. The evidence of PW2 and DW2 would indicate that
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the transactions were only money transactions and that Ext.A1
was executed only for the purpose of securing the loan of
Rs.10,000/- availed by defendants 1 and 2 from the plaintiff. The
specific case of the plaintiff was that the defendants 1 and 2
vacated the plaint schedule property immediately on execution
of Ext.A1 on 16.08.1994, and thereafter, they started residing in
the plaint schedule property only from 30.01.1996 as per
Ext.A8. Ext.B1 Ration Card and Ext.B7 Voters List, which are
issued between the dates of Exts.A1 and A8, would prove that
the defendants were continuing their residence in the plaint
schedule property irrespective of execution of Ext.A1 sale deed.
Ext.A9 Lawyer Notice does not satisfy the requirement under
Section 106 of the Transfer of Property Act. Merely because the
mutation, municipal assessment, and electric connection were
changed in the name of the plaintiff, it could not be said that the
plaintiffs obtained possession of the plaint schedule property on
the basis of Ext.A1 Sale Deed. The plaintiff, being a money
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lender, had been making calculated moves to create documents
in her favour to raise a false claim. The Senior Counsel cited
the decision of the Privy Council in Tyagaraja Mudaliyar v.
Vedathanni [AIR 1936 PC 70] and the decision of the Hon'ble
Supreme Court in Gangabai v. Chhabubai [1982(1) SCC 4]
following the same, to substantiate the point that Sub-section
(1) of S.92 of the Indian Evidence Act is not attracted when the
case of a party is that the transaction recorded in the document
was never intended to be acted upon at all between the parties
and that the document is a sham; that such a question arises
when the party asserts that there was a different transaction
altogether and what is recorded in the document was intended
to be of no consequence whatever and that for that purpose oral
evidence is admissible to show that the document executed was
never intended to operate as an agreement but that some other
agreement altogether, not recorded in the document, was
entered into between the parties
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14. I have considered the rival contentions.
15. The defendants 1 and 2 admit the execution of Ext.A1 Sale
Deed. According to them, though it is styled as a Sale Deed it
was executed only for the purpose of securing the loan availed
by them from the plaintiffs. On the other hand, the plaintiff
contended that it is a pucca Sale Deed which satisfies the
requirement of Section of the Transfer of Propriety Act. The
findings of the Trial Court is that since the delivery of the plaint
schedule property is not given to the plaintiff by the defendants
1 and 2 on execution of Ext.A1, Ext.A1 does not satisfy the
requirement of sale as provided under Section 54 of the
Transfer of Property Act. I am quite unable to sustain the said
finding. Section 54 of the Transfer of Property Act does not
mandate transfer of possession to complete the sale. Sale
under Section 54 of the Transfer of Property Act would be
completed irrespective of the fact whether delivery of the
property is given or not. So even if delivery of the property is not
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given as claimed by defendants 1 and 2, that does not affect the
legal validity of Ext.A1 in any way.
16. The contention of the plaintiffs is that the defendants 1 and 2
vacated the plaint schedule property on the execution of Ext.A1
Sale Deed on 16.08.1994. Thereafter, they again started
residing in the plaint schedule property as per Ext.A8 Rent Deed
dated 30.01.1996. So according to the plaintiffs the defendants
1 and 2 were not residing in the plaint schedule property during
the period from 16.08.94 to 30.01.96. Ext.A1 specifically states
that possession is given to the plaintiff. As rightly pointed out by
the learned Senior Counsel for the contesting respondents
when the defendants assert that there was a different
transaction altogether and that the document was never
intended to be acted upon, evidence in that regard is
admissible, and Section 92 of the Evidence Act corresponding
to Section 95 of Bharatiya Sakshya Adhiniyam is not a bar for
the same. In order to prove the residence of defendants 1 and
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2 in the plaint schedule property, the defendants produced
Ext.B1 Ration Card dated 22.11.1994 and Ext.B7 Voters List
dated 01.01.1995. As rightly pointed out by the learned counsel
for the appellant, merely because these documents were issued
during the disputed period, it could not be assumed that
defendants 1 and 2 had been residing in the plaint schedule
property during the disputed period. Both these documents are
issued after conducting a long procedure including inspections.
Ext.A1 dated 16.08.1994. Admittedly, the defendants 1 and 2
had been residing in the plaint schedule property till the said
date. It is not clear whether the inspections which were made
for issuance of Ext.B1 and B7 documents were made prior to
16.08.1994 or not. Exts.B1 & B7 documents are issued after a
couple of months from Ext.A1 Sale deed. Hence, I am of the
view that the Trial Court, as well as the First Appellate Court,
acted illegally in relying on Exts.B1 and B7 documents to find
possession in favour of the defendants 1 and 2. True, if
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defendants 1 and 2 had been residing in the plaint schedule
property during the disputed period, they could have produced
the utility bills paid by them during the said period. No such
document is produced.
17. On the other hand, the plaintiffs produced Land Tax
Receipts, Building Tax Receipts, and Electricity Invoice in her
name with respect to the plaint schedule property and the
building therein. These documents could not be relied on to find
possession in favour of the plaintiff as the plaintiff will be able to
obtain these documents on the strength of Ext.A1 even without
possession. Ext.A15 Possession Certificate issued by the
Village Officer is produced by the plaintiff. It could not be relied
on without the examination of the person who issued the same.
18. The case of the plaintiffs is that the defendants 1 and 2
have been continuing possession of the residential building on
the strength of Ext.A8 Rent Deed. The Trial Court, as well as
the First Appellate Court, disbelieved Ext.A8. The plaintiff did
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not take any steps to prove the signatures of defendants 1 and
2 through expert evidence, even though the execution of Ext.B8
by defendants 1 and 2. Ext.A8 would show that there is no
witness to it. Ext.A8 is executed on two stamp papers
purchased on different dates. The plaintiff did not adduce any
independent evidence to prove Ext.A8. Both the Courts
concurrently found glaring differences in the signatures in
Ext.B8 with the admitted signatures. I do not find any ground or
reason to take a different view. Hence, possession of the plaintiff
before Ext.A8 could not be found in favour of the plaintiff on the
basis of Ext.A8. Since there is no lease arrangement between
the plaintiff and defendants 1 and 2, the question of termination
of lease as required under Section 106 of the Transfer of
Property Act does not arise.
19. The plaintiff admits possession of the residential building
by the defendants 1 and 2. There is no evidence as to when
defendants 1 and 2 obtained possession of the residential
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building after Ext.A1. In such a case, going by the pleadings and
evidence in the case, the only inference possible is that
defendants 1 and 2 continued their possession of the plaint
schedule property even after execution of Ext.A1 Sale Deed.
But, that by itself is not sufficient to hold that Ext.A1 is executed
for securing loan. First of all, the defendants 1 and 2 do not have
a consistent case with respect to the alleged borrowing. They
contended in their Written Statements that the amount borrowed
is Rs.10,000/- whereas in evidence PW1 stated that the amount
borrowed is Rs.15,000/-. If the amount borrowed is Rs.10,000/-
, there was no need to execute Ext.A1 for Rs.15,000/-. The
details of the alleged borrowing are not disclosed by the
defendants 1 and 2. The rate of interest, the understanding
regarding the payment of interest, and the principal amount, Etc
are not stated by defendants 1 and 2. Their specific contention
is that at the time of execution of the Ext.A1 Sale deed, there
was an oral agreement to re-convey the property when they
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repay the loan amount. There is nothing to prove the alleged
agreement to re-convey the property between the plaintiff and
the defendants 1 and 2. The defendants have no case that they
repaid the alleged loan amount. The alleged Agreement to re-
convey the property between the plaintiff and the defendants 1
and 2 is in the year 1994. The defendants have not taken any
steps to enforce the alleged Agreement. The claim on the basis
of the alleged Agreement is hopelessly time barred. If Ext.A1
was intended for security, the defendants 1 and 2 do not have
any explanation as to why Ext.A6 prior Deed was handed over
to the plaintiffs. It is true that PW2 and DW2 has deposed that
the transaction between the plaintiffs and the defendants 1 and
2 is a money transaction and no sale of property is involved. But
when defendants 1 and 2 do not have a consistent case with
respect to the alleged borrowing, and there is evidence to
believe that Ext.A1 is a pucca Sale Deed, it is difficult to believe
the oral evidence of PW2 and DW2 in this regard. No mediation
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agreement was recorded in writing, even though DW2 has
spoken about mediation agreement. There is perversity in the
matter of appreciation of evidence by the Trial Court and the
First Appellate Court in this regard.
20. The findings of the Trial Court and the First Appellate Court
that Ext.A1 was not intended to be a sale deed, but a security
and that case set up by the defendants that Ext.A1 is not a sale
deed, but only a security is true are unsustainable, they are
liable to be vacated. Hence, I hold that Ext.A1 is perfectly legal
and valid as a sale deed.
21. The pleadings and evidence in the case would indicate that
the plaintiff derived title over the plaint schedule property as per
Ext.A1 and that defendants 1 and 2 continued possession of the
plaint schedule property after execution of Ext.A1. The parties
are relatives as per the evidence of PW1. In such case, the
possession by defendants 1 and 2 can only be on the basis of
permission given by the plaintiff. In such a case, the plaintiff is
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entitled to recover possession of the plaint schedule property on
the strength of her title over the plaint schedule property.
22. O.S.No.604/1996 was filed for recovery of the residential
building in the 7.5 cents of land covered by Ext.A1 on the
allegation that the defendants 1 and 2 are tenants of the plaintiff.
The property scheduled is only the residential building
No.III/859 situated in the 7.5 cents of land covered by Ext.A1. It
is not a suit for recovery of the 7.5 cents of land and the building
therein covered by Ext.A1 on the strength of the title of the
plaintiff. The suit as framed is not sufficient to grant decree of
recovery of possession in favour of the plaintiff allowing
recovery of the property covered by Ext.A1. Hence, the plaintiff
is not entitled to get any relief in O.S.No.604/1996.
23. Since the plaintiff is the owner of the plaint schedule
property and the possession of the plaint schedule property
remains with defendants 1 and 2, the plaintiff is perfectly entitled
to get the permanent prohibitory injunction sought for in
RSA No.731/2012 & 666 /2012
2025:KER:28593
O.S.No.398/1996 to restrain the defendants from committing
any act of waste or mischief in the plaint schedule property.
R.S.A.No.731/2012 is liable to be allowed to that extent.
24. In view of the aforesaid discussions, I find that the
substantial question of law No.2 does not arise for consideration
in this appeal. The substantial question of law No.1 is answered
in the negative and against the appellant. The substantial
question of law No.3 is answered in the affirmative and in favour
of the appellant. The additional substantial question of law No.4
and 5 are answered in the negative and in favour of the
appellant.
25. In view of the aforesaid answer to the additional substantial
question of law No.4, R.S.A.No.666/2012 is allowed in part
without costs setting aside the findings of the Trial Court and the
First Appellate Court to the effect that Ext.A1 was not intended
to be sale deed and that it is only a security for loan, and
confirming the judgments and decrees of the Trial Court and the
RSA No.731/2012 & 666 /2012
2025:KER:28593
First Appellate Court in all other respects.
26. In view of the aforesaid answer to the additional substantial
question of law No.5, R.S.A.No.731/2012 is allowed in part
without costs setting aside the impugned judgments passed by
the Trial Court as well as the First Appellate Court and
decreeing O.S.No.398/1996 in part granting a permanent
prohibitory injunction restraining the defendants from
committing any act of waste or mischief in the plaint schedule
property.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Jma/shg
