Ambujakshy vs Ramachandran Pillai and Vijayan

Justice Thomas P. Joseph

The plaintiff in O.S. No. 505 of 2007 of the Principal Munsiff''s Court, Nedumangad is aggrieved by the dismissal of the suit and the decree on the counter claim, confirmed by the Sub Court, Nedumangad in A.S. No. 40 of 2009. It is not disputed that the appellant/plaintiff executed sale deed No. 1 of 1999 in favour of the 1st respondent (Ext. A1/B1 is a copy of that sale deed). According to the appellant, she had borrowed Rs. 25,000/- from the 1st respondent on 01.01.1999 and as security, executed that assignment deed with an oral understanding that on re-payment of the amount with interest the 1st respondent shall re-convey the property. In spite of the appellant tendering Rs. 25,000/- with interest, the 1st respondent refused to re-convey the property. In spite of execution of the sale deed, the property remained in the possession of the appellant. On 09.09.2007 the respondent trespassed into the property and tried to measure the same. Hence the suit for specific performance of the oral agreement for re-conveyance and other reliefs.

The respondents denied that there was any such loan transaction or that the sale deed was executed as security for its re-payment. They claimed that the 1st respondent purchased the property for valid consideration. The 1st respondent has effected mutation and paid revenue for the property. He constructed barbed wire fencing on the southern side of the property for separating it from the rest of the property belonging to the appellant. The 1st respondent sold the property to the 2nd respondent as per Ext. B2, assignment deed No. 3672 of 2005. The appellant and her men removed the survey stones and destroyed the barbed wire fencing on the southern side of the property on 14.09.2007. Hence the 2nd respondent/2nd defendant raised a counter claim for restoration of the southern boundary fence.

The trial court found that the suit is time barred as per Article 54 of the Limitation Act, that Ext. A1 is an assignment deed in favour of the 1st respondent, the alleged oral agreement for re-conveyance is not proved and that the appellant is not entitled to the reliefs prayed for. The suit was dismissed and based on Ext. C2(a), the counter claim was allowed in part to put up boundary wall on the southern side of the suit property.

The appellant challenged that judgment and decree in A.S. No. 40 of 2009. The learned Sub Judge dismissed the appeal in confirmation of the judgment and decree of the trial court. Hence the second appeal.

The learned counsel for the appellant contends that finding of the trial court as confirmed by the first appellate court that the assignment deed in favour of the 1st respondent was not as security for the due re-payment of the loan is not correct. It is also contended that the courts below ought to have found that the appellant is in possession of the suit property notwithstanding Exts. A1 and B2.

The learned counsel who took notice for the 2nd respondent contends that the concurrent findings entered by the courts below do not warrant any interference and that no substantial question of law is also involved.

It is not disputed by the appellant also that Ext. A1/B1 is an assignment deed executed by her in favour of the 1st respondent though her case is that it was executed as a security for the due re-payment of the loan. So far as the loan transaction is concerned, what is available is only the interested version of the appellant as PW 1. She has not produced any document evidencing the loan transaction or payment of interest which she claimed, was regularly made to the 1st respondent.

So far as the alleged oral agreement of re-conveyance of the property is concerned, apart from the appellant''s evidence as PW 1, the evidence attempted to be adduced is through PW 3. Going by the judgment of the trial court, he has not much idea even about the time of alleged oral agreement for sale. The learned counsel for the appellants contends that the said observation is not correct and that what PW 3 said is that he does not know about the alleged oral agreement for sale after Ext. A1. The appellant when examined as PW 1 stated that she does not remember the date of alleged oral agreement between herself and the 1st respondent. At one stage, she stated that the oral agreement was in the year, 2005 while Ext. A1 was executed on 01.01.1999. As against the above version of PW 1 that the oral agreement was in the year, 2005, the courts below observed that a reading of paragraph 2 of the plaint would reveal that according to the appellant, the oral agreement was simultaneous with the execution of Ext. A1. The courts below were not inclined to act upon the evidence of PWs 1 and 3 regarding the alleged oral agreement.

So far as the possession of the property claimed by the appellant is concerned, it is the version of the 2nd respondent that on 14.09.2007 the appellant and her men removed the survey stones and dismantled the fence on southern side of the suit property, demarcating it from the rest of the property. Following that, the 2nd respondent preferred a complaint to the local police. That fact is admitted by the appellant also when examined as PW 1. Therefore, version of the 2nd respondent regarding the appellant removing the existing survey stones and fence was found probable and acceptable.

A further fact which persuaded the courts below to find against possession claimed by the appellant is that though she claimed to be in possession of the entire property including the suit property, Ext. X1 series would show that she mortgaged only the property other than the suit property belonging to her. That indicated that at the time of Ext. X1 series even, the appellant was not having any right or possession of the suit property.

The respondents have produced Exts. B3 to B5, receipts for payment of revenue on 01.03.2000 and 01.02.2006 also for showing that the property was mutated in the name of respondents 1 and 2.

It is in the above circumstances the courts below found against the plea raised by the appellant and non-suited her. On hearing learned counsel on both sides and going through the judgments under challenge, I do not find any substantial question of law involved in this appeal requiring its admission.

Second Appeal is dismissed.

All pending interlocutory applications will stand dismissed.