Point of law : non-delivery of possession by the plaintiff to the defendant does not by itself or other facts cumulatively pointed out by the plaintiff, would lead to the conclusion that the transaction between the parties was not sale of the suit property, but was a mere loan transaction. So also the defendant waited to claim possession of the suit property from the plaintiff has no bearing on the defendant's title to the suit property or their right to claim possession in accordance with law.

JUDGMENT :

N. ANIL KUMAR, J.

1. The present second appeal has been filed challenging the judgment and decree in A.S. No. 164/2018 dated 25.9.2020 on the file of the Court of the Subordinate Judge, Irinjalakuda, (hereinafter referred to as ‘the first appellate court’] which affirmed the judgment and decree of the Principal Munsiff's Court, Irnjalakuda (hereinafter referred to as ‘the trial court’] in O.S. No. 1817/2015 dated 8.8.2018 dismissing the suit for cancellation of Ext.B1 sale-deed No. 2899/2013 of the Sub Registrar's Office, Nellayi and for consequential permanent prohibitory injunction restraining the respondent/ defendant from trespassing into or committing waste in the plaint schedule property.

2. The subject matter of the present appeal pertains to the plaint schedule property by virtue of Ext.A1 (Ext.B1) sale-deed No. 2899/2013 of the S.R.O. Nellayi admeasuring appropriately 40 cents of property and a building therein comprised in Sy. Nos. 1491/18 and 1469/1 situated in Nenmanikkara Village in Mukundapuram Taluk. The parties will be referred to in the rank assigned to them in the suit for the purpose of convenience and clarity.

3. The facts emerging from the records of the case are as follows:-

The plaintiff and his brother Sreedharan obtained the plaint schedule property by virtue of Ext.B2 sale-deed No. 3116/1955 of S.R.O. Nellayi. Subsequently, Sreedharan transferred his title and interest in the plaint schedule property in favour of the plaintiff by executing Ext.B3 settlement deed No. 2411/2010 of the very same Sub Registrar's Office. Hence, the plaintiff is the absolute owner in possession and enjoyment of plaint schedule property. On 18.6.2013, the defendant and his friend one Kuttappan approached the plaintiff and his wife claiming that his son Saroj Kumar had some financial liabilities with two persons namely, Sudheesh S/o Kuttappan and Mahesh S/o Raghavan, while working together in Gulf country. The aforesaid Raghavan is arraigned as the defendant in this case. Towards the financial liability of the plaintiff's son, they demanded to execute a registered deed in their favour as security for payment of a debt. Believing their representation, the plaintiff and his wife executed a document on 19.6.2013 in favour of the defendant. In fact, the document was executed as a mortgage deed to discharge the liability due to the defendant. The plaintiff and his wife were made to believe that the mortgage would be released in the event of repayment of the debt of their son. In April 2015, the wife of the plaintiff received a legal notice, which was advised by Kuttappan. On receipt of the legal notice, the plaintiff made enquiry at the Sub Registrar's office, Nellayi. On enquiry, it was disclosed that he executed a sale-deed on 19.6.2013 in favour of the defendant in lieu of a mortgage deed. The above deed was executed as a result of fraud and misrepresentation on the part of the defendant. The plaintiff neither received any amount nor did he hand over the possession of the plaint schedule property in favour of the defendant. The sale consideration of Rupees six lakh alleged to have been received by the plaintiff is false. In fact, during the relevant period, the plaint schedule property would fetch an amount of Rs. 3.5 lakh per cent as market value. Since the existence of Ext.A1 sale-deed casts a cloud on the title of the plaintiff in the plaint schedule property, the sale-deed is liable to be cancelled.

4. On service of summons, the defendant appeared and contested the suit. In short, the stand taken by the respondent/defendant was that the defendant obtained title and possession over the plaint schedule property after due execution of Ext.A1 sale-deed and hence the defendant is the true owner of the plaint schedule property. After the execution of Ext.A1 sale-deed, the property was mutated in favour of the defendant. On the very same date of execution of Ext.A1 sale-deed, the plaintiff handed over the prior title deeds of