IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 AS.No. 748 of 1998(B) -------------------------- OS.1092/1992 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT(S)/PLAINTIFF ------------------------------- RAMAKRISHNAN, S/O. POOTHERI KOCHUNNY, CHERPU VILLAGE, THRISSUR TALUK. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S)/DEFENDANT ----------------------------------- SANTHAN, S/O. THAYYIL KOCHUGOVINDAN, KANIMANGHALAM VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. ADV. SRI.JIJO PAUL THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 11/11/2010, ALONG WITH AS NO. 221 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 748 OF 1998 & A.S. NO.221 OF 2003 = = = = = = = = = = = = = = = Dated this the 11th day of November , 2010. J U D G M E N T A.S.748/98 is an appeal preferred against the judgment and decree in O.S.1092/92 and A.S.221/03 is an appeal preferred against the judgment and decree in O.S.276/93 of the Sub Court, Thrissur. Originally this appeal was filed before the District Judge, Thrissur and that had been withdrawn to be heard along with the other appeal. Now the brief facts necessary for the disposal of the appeal are stated as follows. O.S.1092/92 is a suit filed for declaration and consequential injunction. The case of the plaintiff is it belonged to him by virtue of a document in the year 1967 and he had made improvements in the property. According to A.S. NO. 748 OF 1998 & A.S. NO.221 OF 2003 -2- him he was badly in need of money and therefore contacted the defendant who is a money lender and the defendant wanted the mortgage deed to be executed. The plaintiff readily agreed, he had gone to the Registrar's office and executed the document but later he came to know that the document was an out and out sale and not a mortgage. Thereafter he contacted a social worker namely Sivaraman Nair who is also an advocate clerk and he had promised to take appropriate proceedings to get the document set aside or corrected but later he received a notice from Sivaraman Nair stating that he had agreed to sell the property to Sivaraman Nair or to return Rs.30,000/-. It is also contended that the defendant had taken blank signed papers and had created documents to defeat the interest of the plaintiff. Therefore the plaintiff has A.S. NO. 748 OF 1998 & A.S. NO.221 OF 2003 -3- prayed for setting aside the document and also for a permanent injunction. 2. The defendant in the suit contended that it is not a mortgage it is an out out sale for proper consideration and on the strength of the document the other tenants had given rent to him and that the plaintiff had even executed a lease deed and therefore the suit is not liable to be entertained. 3. The other suit O.S.276/93 is filed by the defendant in O.S.1092/92 for a permanent injunction wherein the plaintiff therein has requested the Court to grant an injunction. On the strength of the document filed he had purchased the property and is enjoying the property. The defendant in the case namely the plaintiff in O.S.1092/92 and his son had filed written statement contending that the plaintiff A.S. NO. 748 OF 1998 & A.S. NO.221 OF 2003 -4- in O.S.276/93 is not entitled to any relief and therefore had prayed for dismissal of the suit. 4. In the trial court Exts.A1 to A5(b) and B1 to B5 were marked. PW1 and DWs.1 and 3 were marked and on analysis of the materials the trial court granted a decree in favour of the plaintiff in O.S.276/93 and dismissed the suit O.S.1092/92. It is against that these decisions the present appeals are filed. 5. Heard. The crux of the matter depends upon the correctness of the document and the nature of the document executed by the plaintiff in O.S.1092/92 in favour of the defendant in that case. Admittedly the plaint schedule property is having an extent of 2 cents with a row of rooms therein. It is the case of the plaintiff that he wanted to borrow money from the defendant who is a money lender and as per A.S. NO. 748 OF 1998 & A.S. NO.221 OF 2003 -5- his request he had executed a mortgage deed but to his utter dismay he found it as a sale deed later and therefore he wanted to set aside that or to declare that the document is invalid. 6. On the other hand, the defendant would contend that the document is a valid one supported by actual consideration. The trial court has elaborately considered the matter both documentary as well as oral evidence. It has to be remembered that Ext.A1 is a registered assignment deed executed by the plaintiff, Ramakrishnan in favour of the defendant, Santhan on 25.10.84. Ext.A2 is the rent chit executed by the plaintiff therein to the defendant for retaining a room on rent which he was occupying. Ext.A3 series are the basic tax receipts for the property. Ext.A4 series are the demand notices and building tax receipts issued in the name of A.S. NO. 748 OF 1998 & A.S. NO.221 OF 2003 -6- Santhan. Ext.A5(a) and (b) are money order receipts. The defendant's i.e. Ramakrishnan's exhibits are only regarding notices and the assignment deed. It has to be stated that the plaintiff is not an ordinary person. He had executed the document with both his eyes opened and it cannot be stated that he was in a position to be dominated by the other person. If really it was only a mortgage deed then there was no necessity for executing Ext.A2, the execution of which is denied by Sri. Ramakrishnan. The learned trial judge found that the document has been executed and on the basis of the document Mr. Santhan has proceeded and has been enjoying the property and the suit is filed admittedly in 1992 for declaration of that document as invalid. It is interesting to note that this Ramakrishnan has set up a case A.S. NO. 748 OF 1998 & A.S. NO.221 OF 2003 -7- that he had contacted one Sivaraman Nair who is an advocate clerk and according to him that advocate clerk has also cheated him after obtaining blank signed papers and thereafter he had issued a notice to the person for assigning the property in his favour. So the case of the plaintiff, Ramakrishnan appears to be that if somebody wants some blank papers to be signed he would readily oblige them and later face the consequences. 7. The trial court also found that the evidence of DW2 and DW3 are not convincing and they are closely related and it does not carry much weight. When confronted with the rent chit he would say that he had also given blank signed papers. This can never be the attitude at all. Similarly other persons who are all occupying the rooms as tenants after the execution of A.S. NO. 748 OF 1998 & A.S. NO.221 OF 2003 -8- Ext.A1 had attorned to the purchaser and had started paying rent to him. Therefore the sum and substance of the entire materials would show that Ext.A1 is a valid assignment deed executed for consideration and possession is handed over on the basis of which Mr.Santhan had exercised acts of ownership and possession and therefore the conduct of the plaintiff that it was only intended to be a mortgage deed cannot be accepted by any stretch of imagination. It has also to be remembered the transaction was as early as in 1984 and the consideration shown in the document was Rs.15,000/- and it relates to 2 cents of property in a remote place in Thrissur called Cherpu and therefore the plea of inadequacy of consideration also does not loom large in this case. So from these discussions I concur with the finding of the trial court and A.S. NO. 748 OF 1998 & A.S. NO.221 OF 2003 -9- find that the Court below has granted a decree correctly in O.S.276/93 and dismissed O.S.1092/92. Therefore both these appeals fail and are dismissed but without costs. M.N. KRISHNAN, JUDGE. ul/- A.S. NO. 748 OF 1998 & A.S. NO.221 OF 2003 -10- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.748 OF 1998 & A.S. NO.221 OF 2003 = = = = = = = = = = = J U D G M E N T 11th November, 2010.