Case: Kolathoor Variath &amp; Another Vs. Paiaprakottoth Cheriya Kumhahammad Haji

1. The dispute is about some land. The appellants instituted a suit against the respondent for possession over the land and for certain amount and mesne profits. In outline the plaint allegations were that the land was mortgaged with possession to one Kottath Ahmad for Rs. 600/subject to payment of purappad of 291 paras of 7paddy per annumn after deducting interest on the mortgage amount. The mortgage was oral. The mortgagees right was purchased in a court auction by the respondent. Since then the respondent is in possession as a mortgagee. The mortgage amount is fully paid up by the arrears of purappad. The appellants are entitled to remain in possession. The respondent contested the claim. He denied that he and hist have been in possession as a mortgagee. The oral mortgage cannot be proved in a court. According to him, hist was a tenant, and so he also is a tenant. The trial court decreed the suit. The trial court held that the respondent was in possession as a mortgagee and not as a tenant. His appeal was dismissed by the District Judge. The District Judge held that he was in possession as a mortgagee and not as a tenant. He than filed a second appeal in the High Court of Kerala. The High Court allowed the appeal and set aside the decree for possession passed by the trial court and the District Judge in favour of the appellants. The High Court granted a decree for the recovery of purappad. In support of its judgment the High Court gave two reasons. Firstly, the alleged mortgage was made some time after 1895 when the Transfer of Property Act was in force. A mortgage could be made only by a registered instrument, not by word of mouth. So no evidence could be led to prove an oral mortgage. The claim of the appellants based on an oral mortgage was accordingly, rejected. Secondly, the respondent was a tenant.

Reasoning:
The lower appellate Court, after discussing the oral and documentary evidence held that the respondent "had failed to prove that he was in possession of the property as lessee." It is a finding of fact. It cannot be said to be perverse or affected with any such infirmity as should invite the High Courts intervention in second appeal Ex. A. 52 is an admission by thet of the respondent. He has admitted that he was in possession under usufructuary mortgage for Rs. 600/Ex. A. 54 records an admission of the respondent himself that he was in possession under a mortgage. These documents would not be admissible to prove the terms of an oral mortgage; but surely they can be admitted to prove that neither the respondent nor hist was claiming possession as a tenant. Surprisingly, the High Court has upset the finding of the lower appellate Court in the absence of cogent reasons. The High Court has relied on two documents filed by the respondent. Ex. B. 1 and Ex. B. 2 Exhibit B. 1 is the sale certificate issued to him on May 29, 1943. Exhibit B. 2 is the document showing delivery of possession to him pursuant to the sale certificate. In Ex.1 the encumbrance on the property is shown as the purappad and interest payable thereon. In Ex.2 the right of ther is shown as the Munpattom right for Rs.. None of these documents can be used against the appellants because they were not parties to the suit and to the execution proceedings against the respondents. The High Court has also relied on an averment in the plaint. In paragraph 2 of the plaint the appellants have stated that the respondent paid the purappad in 1127, when one of the appellants demanded that the mortgage amount should be increased to Rs. 2000/and the purappad should be enhanced to 300 paras. The respondent agreed to pay Rs. 1400/in addition to Rs. 600/and raised the mortgage amount to Rs.. He also agreed to enhance purappad to 300 paras of paddy. From these averments the High Court has spelt out a tenancy right in favour of the respondent5. There is little warrant for jettisoning the finding of the lower appellate court, based as it is on appraisal of the whole evidence from an averment in the appellants plaint, which, at worst, may be echoing two voices. More, the respondent did not admit the averment. This part of their case was not pressed by them. Courts below did not act upon it. The trial court granted a decree for arrears of Purappad at the rate of 291 paras of paddy as stated by them in paragraph 1 of their plaint and not as claimed in paragraph 2 thereof. The High Court itself has affirmed this part of the decree. In the circumstances of this case, the High Court should not have interfered with the finding of fact recorded by the lower appellate court. So we would uphold the finding of the lower appellate court that neither the respondent nor hist was inducted to the property in dicpute as a tenant6. This does not conclude the matter. Counsel for the respondent has urged before us that the respondent has become a tenant under the Kerala Land Reforms Act. But this point was not raised before the High Court. For various reasons, we think that this question should be decided first by the High Court. Accordingly, we propose to remit the case to the High Court for decision of this question and for disposal of the second appeal accordingly.