IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 SA.No. 557 of 2000() ------------------------------ AS.NO.81/1990 of PRINCIPAL SUB COURT,ATTINGAL OS.NO. 66/1981 of MUNSIFF COURT,VARKALA .................... APPELLANT/ APPELLANT/1ST DEFENDANT ---------------------------------------------------------------- * AHAMMED PILLA KANNU HABUSE BEEVI, AGED 62, VILAYIL VEEDU, NADAYARA, KANNAMBA DESOM, VARKALA VILLAGE.(DIED) *ADDL.APPELLANTS 2 TO 9 IMPLEADED ADDL.A NO.2: BADARUNNISSA, D/O. HABUSA BEEVI, VILAYIL VEEDU, NADAYARA, VARKALA, TRIVANDRUM. ADDL.A NO.3: RAHUMATHUNNISA,S/O.AYUB, RESIDING AT DO. DO. ADDL.A NO.4: ABDUL AZEEZ, S/O. AYUB, RESIDING AT DO. DO. ADDL.A NO.5: SAUDHA BEEVI, D/O. HABUSA BEEVI, DO. DO. ADDL.A NO.6: ABIDA BEEVI, D/O. HABUSA BEEVI, DO. DO. ADDL.A NO.7: SABIRA BEEVI, D/O. HABUSA BEEVI, DO. DO. ADDL.A NO.8: JABIR, S/O. AYUB, DO. DO. ADDL.A NO.9: LATHIFA BEEVI,D/O. HABUSA BEEVI, DO. DO. BY ADV.SRI.G.S.RAGHUNATH SRI.BASANT BALAJI RESPONDENTS/ RESPONDENTS/ PLAINTIFF AND DEFENDANTS 2 TO 11 ---------------------------------------------------------------------------------------------------------- 1. ASSAN PILLA MOHAMMED KOYA,VALLAKADAVU, THODIYIL VEEDU,NADAYARA KANNAMBA DESOM, VARKALA VILLAGE. *2. ASSAN PILLA AYOOB, VALAYIL VEEDU, NADAYARA KANNAMBA DESOM, DO. DO. (DIED) 3. AYOOB BADARUNNISSA, DO. DO. 2/- -2- S.A.NO.557/2000 4. AYOOB RAHUMATHUNNISSA, DO. DO. 5. AYOOB ABDUL AZEEZ, DO. DO. 6. AYOOB SOUDA BEEVI, DO. DO. 7. AYOOB LATHEEFA BEEVI, DO. DO. 8. AYOOB ABIDA BEEVI OF DO. DO. 9. AYOOB SABIRA BEEVI OF DO. DO. 10. AYOOB JABIR, OF DO. DO. 11. AYOOB SUBAIR OF DO. DO. *ADDL.RESPONDENT 12 IMPLEADED *ADDL.R12: SUBAIR, S/O. AYUB, VILAYIL VEEDU, NADAYARA, KANNAMBA DESOM, VARKALA VILLAGE. *THE LEGAL REPRESENTATIVES OF DECEASED APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 9 AND AS ADDITIONAL RESPONDENT NO.12 AS PER ORDER DATED 17/10/07 IN I.A.NO.1781/2007. * 2ND RESPONDENT DIED AND RESPONDENTS 3 TO 11 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED 2ND RESPONDENT VIDE ORDER DATED 2/11/2010 IN THE MEMO BEARING CF 6645/10 DATED 28/10/10. R1 BY ADV.SRI. P.R.VENKATESH SRI.P.R.RAJA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts 3/- -3- S.A.NO.557/2000 ORDER ON C.M.P.NOS.1942/2000 AND C.M.P.NO.1602/2000 IN S.A.NO.557/2000 08/06/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO.JUDGE sts P.BHAVADASAN, J. ---------------------------- S.A.No. 557 of 2000 --------------------------------- Dated this the 8th day of June, 2011 JUDGMENT The first defendant in O.S.No.66/1981 before the Munsiff's Court, Varkala, which was the suit for redemption is the appellant. The appellant died during the pendency of the appeal and his legal heirs have been brought on the party array. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff claimed to have obtained plaint A and B schedule properties as per Ext.A1 dated 13.04.1995. While he was in enjoyment and possession of the suit property, a mortgage deed was executed in favour of the first defendant as evidenced by Ext.A2 document dated 10.12.1902. The details of the mortgage have been given in the plaint. 3. It is claimed that in the plaint B schedule building the plaintiff continued residence even after the mortgage and later he shifted his residence. The first defendant was allowed to occupy S.A.No. 557 of 2000 2 the building on oral lease arrangement. The plaintiff seeks to redeem the mortgage and therefore, the suit. 4. The first defendant in her written statement disputed the allegation in the plaint and pointed out that about Rs.10,000/- was handed over to the plaintiff to purchase the property in the name of the first defendant. Further contention is that a fraud was played in executing Ext.A2 and that has been brought about by misrepresentation also. It is further contended that the mortgage included the building and the understanding was that the mortgage will never be redeemed. The first defendant asserts that the building in the plaint schedule property was demolished and a new structure was put up and the plaintiff had no manner of right over the suit property. 5. In the separate written statement filed by the defendants 2 to 11 they took similar contentions as that of the first defendant. 6. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A17 from S.A.No. 557 of 2000 3 the side of the plaintiff. Defendants had DWs 1 to 6 examined and Exts.B1 to B3(a) marked. Ext.X1 is the third party exhibit. Exts. C1 and C2(a) are the commissioner's report and plan. The lower court found that the building involved in the suit shown as B schedule is not a subject matter of mortgage. Accordingly, the lower trial court passed the preliminary decree reads as follows: “In the result preliminary decree for redemption passed stating that the plaintiff has title over the plaint schedule property. Plaintiff is entitled to redeem the mortgage and recover possession of the property on payment of redemption price. Regarding the B schedule property no relief is sought in this suit. Plaintiff has deposited mortgage amount. So entitled to realise 6% interest from the date of preliminary decree till recovery of the property. Plaintiff is not entitled to get damages as claimed for. Defendants are entitled to get value of improvements. The quantum of value of improvements is to be decided in the final decree stage. Plaintiff is directed to apply for passing final decree within two months from the date of preliminary decree. Defendants have liberty to apply for fixing value of improvements if required in the final decree stage. No order as to cost.” 7. The first defendant took the matter in appeal as A.S.No.81/1990, the lower appellate court concurred with the trial court but found the defendant can be evicted only under the provisions of Act 2 of 1965 and passed a modified S.A.No. 557 of 2000 4 preliminary decree which reads as follows: “In the result, the appeal is dismissed. The judgment and decree of the lower court are confirmed and upheld. The cross-appeal filed by the first respondent is allowed. In addition to the reliefs granted by the trial court, plaintiff's title over plaint B schedule building is declared and plaintiff is allowed to realise rental arrears what is not not time batted which provision shall be made in the final decree but allowing recovery of possession of the building from the defendants only under the provision of the Kerala Buildings (Lease and Rent Control) Act. First respondent is allowed to realise his costs from the appellant and her assets.” 8. Notice is seen issued on the following substantial questions of law: “a) When the plaint schedule property includes 59 cents and building and the suit is for redemption of plaint schedule property can a decree for redemption passed when the claim regarding the building is withdrawn. b) Is the court justified in granting a decree for partial redemption. c) When the plaintiff has withdrawn his relief regarding the building can the appellate court uphold the title of the plaintiff over the plaint schedule building and direct him to file a petition under the Kerala Building (Lease and Rent Control) Act 2 of 1965. d) As the plaintiff has withdrawn his claim for a portion of plaint schedule property can the suit be held maintainable. e) When the claim of Kudikidapu is specifically raised as a ground in the appeal Memo and argued by the Advocate, can the appellate court refuse to consider the same. S.A.No. 557 of 2000 5 f) Is the appellate court justified in dismissing the Review Petition. g) Is not the court bound to consider the validity of the order passed by the Land Tribunal on reference. h) Is not the appellant entitled to demand kudikidapu under Section 2(25)ii-A in view of the admission in the plaint. i) Is the court correct in deferring the question of value of improvements to the final decree.” 9. The learned counsel appearing for the appellant pointed out that both the courts below were not justified in coming to the conclusion that the building shown in B schedule was not a subject matter of mortgage. There was sufficient evidence to show that the defendants had come into the possession of the building in furtherance of the mortgage deed namely Ext.A2 and not on the basis of an oral lease as alleged in the plaint. 10. There is no merit in the above contentions at all. The courts below have concurrently found that the building is not a subject matter of the mortgage. Further, the plaintiff had represented before the trial court that the relief of redemption as regards the plaint B schedule property ie. the building has been given up and the plaintiff reserved the liberty to proceed under S.A.No. 557 of 2000 6 the Rent Control Act to evict the defendants. 11. It is significant to notice that the contesting defendants have raised a plea of fraud, which was found against. One cannot omit to note that Ext.A2 execution of mortgage was admitted. One of the pleas raised by the appellant was that the mortgage deed was obtained by fraud and misrepresentation. It is for them to establish the said elements. According to them, money was entrusted to the first plaintiff to purchase the building and property in the name of the first defendant but that was not done. Admittedly, Ext.A1 document stands in the name of the plaintiff. Ext.A2 mortgage deed was executed in favour of the first defendant. The lower appellate court noticed that the said document along with registration fee was presented for registration by the first defendant himself. Both the courts below have found that there is absolutely no evidence regarding fraud and misrepresentation said to have been played by the plaintiff on the defendants. More interestingly, the father of the first defendant as also her husband are two attesting witnesses to Ext.A2. It is also significant to notice that the person who alleged S.A.No. 557 of 2000 7 fraud and misrepresentation did not choose to enter the box and give evidence. 12. The case of the defendants was that they were put in possession of the building as per the mortgage was also found against. On evidence, the courts below found that the defendants came into possession of the building only after Ext.A2 deed. The evidence is to the effect that at the time of Ext.A2 mortgage the building was outstanding on lease, as could be seen from Ext.A6. It has come out in evidence that the building was outstanding on lease atleast till 31.1.1981 thereby making it obvious that at the time of execution of mortgage, building could not have come into the possession of the defendants. Thus it was found that the building is not included in the mortgage. 13. As regards the value of improvements, it was found that the mortgagee is entitled to make improvements. The quantum was relegated to be determined at the final decree stage. 14. The appellants are unable to show any legal infirmity in the judgments and decrees of the courts below. There is nothing S.A.No. 557 of 2000 8 to show that the judgments and decrees suffer from any factual error also. In the result, the appeal is without any merits and it is liable to be dismissed. I do so. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln