The main legal point established in the judgment is the importance of interpreting and construing the terms of a document, the relevance of subsequent conduct of the parties, and the application of Sections 92 and 62 of The Indian Evidence Act in determining the nature of a transaction.

B. KEMAL PASHA, J.

(1) What has been created by the parties through Ext.A1, is a mortgage or lease?

(2) Whether the version that the parties wanted to treat the transaction covered by Ext.A1 as a lease, is admissible in evidence?

(3) Can the subsequent enhancements of the amount of monthly profits fixed in Ext.A1, amounts to novation?

2. Challenging the concurrent findings entered by the Munsiff's Court, Nadapuram in O.S. No. 183/2011 followed by those of the Subordinate Judge's Court, Vadakara in A.S. No. 7/2014, the defendant in the suit has come up in second appeal.

3. The suit is one for redemption of mortgage. The case of the plaintiff is that the scheduled shop room owned by the plaintiff was mortgaged to the defendant by accepting a mortgage amount of Rs. 1,500/- on 06.09.1988, by way of usufructuary mortgage, for a period of six months on a monthly profit calculated at Rs. 600/-. Subsequently, the monthly profit was increased to Rs. 1,075/-. Even after repeated requests and demands, the defendant has not cared to surrender vacant possession of the scheduled shop room and therefore, the plaintiff caused to issue Ext.A2 lawyer's notice. According to the plaintiff, the notice evoked a response in the form of a reply thereby resorting to false and untenable contentions, and hence the suit.

4. The defendant contended that the transaction in question was not a mortgage; whereas it is a lease. The plaintiff had rented out the scheduled shop room to the defendant on a monthly rent of Rs. 600/- initially, and thereafter the rent was enhanced to Rs. 1,075/-. Since that area comes within the notified area under the Kerala Buildings (Lease and Rent Control) Act, the suit is not maintainable.

5. The trial court by entering a finding that the transaction in question is a usufructuary mortgage, decreed the suit in terms of the plaint. Aggrieved by the same, the defendant preferred A.S. No. 7/2014 before the lower appellate court. The lower appellate court found that the transaction in question is an anomalous mortgage and not a usufructuary mortgage, and by entering such a finding, the lower appellate court also concurred with the decree passed by the trial court, and hence this second appeal.

6. This Court has admitted this second appeal on the following substantial questions of law.

"(i) Whether the findings of the courts below that Ext.A1containedthe ingredients of a usufructuary mortgage or anomalous mortgage, is legal and proper?

(ii) Whether the courts below are legally correct in holding that the transaction between the appellant and the respondent was in the nature of a usufructuary mortgage or anomalous mortgage and not a lease as contended by the appellant?

(iii) Whether the courts below are justified in not drawing adverse presumption against the plaintiff on the basis of the principles contained in illustration (g) to Section 114 of the Indian Evidence Act?

(iv) Whether the courts below have appreciated the evidence on record properly and correctly while arriving at a conclusion that the appellant was a mortgagee and the plaintiff was entitled for a decree of recovery of possession on the strength of Ext.A1?"

7. Heard the learned counsel for the appellant and the learned counsel for the respondent.

8. The learned counsel for the appellant has argued that the plaintiff has not cared to enter the box and has not adduced any oral evidence. At the same time, the defendant was examined as DW1. According to the learned counsel for the appellant, the transaction in question is a lease arrangement between the parties, whereby the plaintiff had rented out the scheduled shop room to the defendant initially on a monthly rent of Rs. 600/-. Thereafter, when disputes arose between the parties regarding the enhancement of rent, a mediation was conducted and initially rent was enhanced to Rs. 875/- and subsequently once again the same was enhanced to Rs. 1,075/-. It is the case of the defendant that presently the defendant has been continuin