IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN TUESDAY, THE 5TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941 RSA.No.1010 OF 2012 AGAINST THE JUDMENT AND DECREE DATED 11.04.2012 IN AS 242/2009 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR AND AGAINST THE JUDGMENT AND DECREE DATED 30.09.2009 IN OS 183/2007 OF SUB COURT, PERUMBAVOOR -----

APPELLANT/APPELLANT IN THE APPELLATE COURT AND PLAINTIFF IN THE TRIAL COURT:

JOSEPH, AGED 68 YEARS,S/O VARKEY,KAYYANICKAL HOUSE,IRAPURAM KARA, IRAPURAM VILLAGE,IRAPURAM P.O. PIN 683541 BY ADVS.

SRI.R.D.SHENOY (SR.)

SRI.P.GEORGE VARGHESE SRI.LEGITH T.KOTTAKKAL SRI.S.VINOD BHAT RESPONDENT/RESPONDENT IN THE APPELLATE COURT AND DEFENDANT IN THE TRIAL COURT:

RAMACHANDRAN NAIR, S/O NANGU AMMA,KIZHAKEDATH PUTHENPURAYIL, IRAPURAM VILLAGE, IRAPURAM P.O. PIN-683541 R1 BY ADV. SRI.T.KRISHNAN UNNI (SR.)

R1 BY ADV. SRI.K.C.KIRAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

SATHISH NINAN, J.

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Dated this the 5^th day of November, 2019

JUDGMENT

The unsuccessful plaintiff is the appellant.

The suit is for a declaration that Ext.A4 cancellation deed does not affect the title and possession of the plaintiff over the plaint schedule property and for injunction against trespass.

2. The plaint schedule property has an extent of 30 cents equivalent to 12.14 Ares. It is the eastern portion of a larger extent of 77 cents which admittedly belonged to the defendant. According to the plaintiff, when he attempted to effect mutation of the property it was understood that the defendant had executed Ext.A4 cancellation deed and it is accordingly that the suit is filed.

3. According to the defendant, the plaintiff is a money lender. He had borrowed amount from the plaintiff on various occasions totalling to `4,30,000/-. The title deed relating to the :- 2 :-

property viz. Ext.A2, along with signed cheques, signed blank papers and signed blank stamp papers were obtained by the plaintiff as security towards repayment of the debt. Though an amount of `3,70,550/- was repaid to the plaintiff, the documents were not returned by the plaintiff demanding unconscionable interest. At the instance of the plaintiff, the defendant executed a registered document in his favour on his undertaking that a document will be executed back in favour of the defendant on payment of the entire amounts due. The plaintiff failed to execute document in favour of the defendant in spite of repayment of the entire amounts due which necessitated execution of Ext.A4 cancellation deed. Ext.A1 was never intended as a sale deed nor was it acted upon is the contention.

4. Though for varying reasons, both the courts below dismissed the suit, refusing to uphold Ext.A1 sale deed. It is aggrieved thereby that this appeal by the plaintiff.

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5. Heard learned Senior Counsel Sri.R.D.Shenoy on behalf of the appellant-plaintiff and Sri.T.Krishnanunni, learned Senior Counsel on behalf of the respondent-

defendant on the following substantial questions of law:-

“(i) Is the finding of the lower appellate court that ExtA1 sale deed is sham and nominal, supported by pleadings and evidence?

(ii) Did not the trial court err in dismissing I.A.1492 of 2008, the application for joint trial along with O.S.162 of 2008 wherein also the same issue arises for consideration?”

6. On the entire evidence, the following circumstances emerge:-

(a) Though Ext.A1 sale deed is executed on 15.07.98, even according to the plaintiff mutation was not even attempted to be effected till execution of Ext.A4 cancellation deed dated 03.10.06 by :- 4 :-

the defendant.

(b) In spite of Ext.A1 sale deed dated

15.07.1988, the plaintiff did not make even a single remittance of tax with respect to the property till date of suit.

(c) Ext.A1 sale deed relates to 30 cents of property out of a larger extent of 77 cents belonging to the defendant as per Ext.A