IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 649 of 1993()
1. MADHAVAN
... Petitioner
Vs
1. LUKHS
... Respondent
For Petitioner :SMT.V.P.SEEMANTHINI
For Respondent :SRI.C.K.KOSHY
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :12/04/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO.649 OF 1993
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Dated this the 12th day of April, 2007
JUDGMENT
Defendant in O.S.120/1988 on the file of
Munsiff Court, Pala is the appellant. Plaintiff
therein is the respondent. Suit was filed for
injunction. Plaint schedule property is 47 cents
in survey No.550/3 of Elackadu Village which is
part of 7 acre 21 cents. Plaint schedule property
admittedly originally belonged to respondent.
Respondent instituted the suit contending that
respondent sought a loan of Rs.1500/- and appellant
agreed to lend him the money if respondent executes
a sale deed as security for respondent with
interest permitting respondent to retain possession
of the property and to retransfer the property on
repayment of the amount with interest. It was
contended that as agreed Ext.B1 sale deed was
executed on 9.12.1985 in favour of appellant but
it was never intended to be a sale deed but only
S.A.649/1993 2
as security and possession was also not
transferred. Contending that appellant is
attempting to trespass into the plaint schedule
property, respondent sought a decree for
prohibitory injunction. Appellant in the written
statement contended that he is not a money lendor
but a driver in Kerala State Road Transport
Corporation. But it was admitted that in November
1985 respondent sought a loan from him and
believing respondent Rs.48,580/- was paid and in
first week of December 1985 respondent approached
appellant and offered to sell the property on
condition that the property is to be reconveyed on
repayment of Rs.48,580/- and thereafter on
9.12.1985 Ext.B1 sale deed was executed. It was
further contended that amount borrowed was not
Rs.1500/- as alleged but Rs.48,580/-. It was also
contended that respondent did not repay the amount
as agreed and appellant is in possession of the
property and in such circumstance, respondent is
not entitled to the decree for injunction sought
S.A.649/1993 3
for.
2. Learned Munsiff framed the necessary
issues. On the evidence of Pws.1 to 4 on the side
of the respondent, and DW1 on the side of
appellant, and Exts.A1 to A6, B1 and X1, learned
Munsiff found that though Ext.A1 is a sale deed, it
is clear from the evidence that it was executed
only as a security with an understanding that on
receipt of the amount borrowed, appellant would
reconvey the property and possession continued with
respondent and appellant is entitled to get the
amount paid to the respondent; but he is not
entitled to resist the enjoyment of the property by
respondent. A decree for injunction was granted
without prejudice to the right of appellant to
seek appropriate remedy for due performance of the
agreement for repayment of the amount due or for
recovery possession of the property by due process
of law. Appellant challenged the decree and
judgment before District Court, Kottayam in
A.S.72/1991. Learned District Judge on
S.A.649/1993 4
reappreciation of evidence confirmed the decree and
dismissed the appeal. It is challenged in this
second appeal.
3. Second Appeal was admitted formulating the
following substantial questions of law.
1) Whether under section 92 of
Evidence Act, courts below were
justified in discarding Ext.B1
while granting a decree for
injunction?
2) When appellant has title to the
property under Ext.B1, whether
courts below were correct in
granting a decree for injunction in
favour of respondent?
4. Learned counsel appearing for appellant
was heard. There was no representation for
respondent as respondent did not engage a counsel
after the original counsel expired.
5. Under Ext.B1, respondent assigned the
plaint schedule property in favour of appellant on
S.A.649/1993 5
9.12.1985. As per Ext.B1 title and possession has
been transferred to appellant. But when examined
as DW1, appellant himself admitted that Ext.B1 was
not executed as a pucca sale deed and instead his
own evidence was that it was executed as security
for the amount paid to the respondent as loan. It
was also admitted by appellant that he had agreed
to reconvey the property as and when the amount is
repaid by the respondent. In the light of this
evidence, on appreciation of evidence by the
courts below found that appellant did not obtain
possession of the property. It cannot be found
fault with. Evidence establish that eventhough
Ext.B1 sale deed was executed, it was never
treated as a sale deed but only as security to
enable appellant to realise the amount paid to the
respondent as loan. It was also clear that
appellant had agreed to reconvey the property on
receipt of the amount paid to the respondent.
True, there was dispute with regard to the amount
borrowed by respondent and paid by appellant.
S.A.649/1993 6
When respondent contended that it was only
Rs.1500/- appellant contended that it was
Rs.48.580/-. Anyway the amount borrowed, is not to
be decided in the present suit. The question is
only regarding possession.
6. The evidence of PW1 itself establish that
he did not obtain possession of the property under
Ext.B1. When the sale deed was executed as
security, there was no yielding trees in the
property. When appellant has no case that he has
cultivated the property, evidence of the respondent
and his witnesses and the admission of PW1
establish that inspite of execution of Ext.B1,
possession of the property continued with the
respondent. In such circumstance, as rightly found
by the courts below, appellant is not entitled to
take possession of the property other than by due
process of law and respondent is entitled to the
decree for injunction granted by the courts below.
The trial court itself granted liberty to
appellant to seek appropriate remedy either for
S.A.649/1993 7
realisation of the amount paid to respondent or
for recovery seeking possession of the property
under Ext.B1. In such circumstances, I find no
reason to interfere with the concurrent findings of
the courts below.
Appeal is dismissed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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S.A..NO.649 /1993
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JUDGMENT
12TH APRIL, 2007