Kerala High Court
N.V. Thomas vs Sebastian on 6 June, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 6TH DAY OF JUNE 2012/16TH JYAISHTA 1934
RSA.NO. 392 OF 2012 ()
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AS.129/2008 OF SUB COURT, PALA
OS.105/2007 OF MUNSIFF-MAGISTRATE, ERATTUPETTA
APPELLANT/APPELLANT/PLAINTIFF:
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N.V. THOMAS, S/O. VARKEY,
NAMPUDAKATH HOUSE,
THALAPPALAM KARA,
MOONNILAVU VILLAGE,
MEENACHIL TALUK.
BY ADVOCATE SHRI A.K.ALEX
RESPONDENTS/RESPONDENTS/DEFENDANTS:
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1. SEBASTIAN, S/O.MATHAI,
MATTATHIL HOUSE,
NOW RESIDING AT MUNDAKKAYAM VILLAGE,
KANJIRAPPALY TALUK,
PURATHANAM POST, KOTTAYAM DISTRICT.
2. N.V. JOSEPH, S/O. VARKEY,
NAMPUDAKATH HOUSE,
THALAPPALAM KARA,
MOONNILAVU VILLAGE.
3. MATHEW JOSEPH, S/O. JOSEPH,
MOOKKANTHOTTATHIL HOUSE,
THALAPPALAM KARA, MOONNILAVU VILLAGE,
R.S.A. No.392 of 2012
4. GEORGE JOSEPH, NAMPUDKATH HOUSE.
MOONNILAVU VILLAGE.
5. JAMES JOSEPH, S/O.JOSEPH,
PARAYAN KUZHIYIL HOUSE,
EDAMARUKU KARA, MELUKAVU VILLAGE.
5. MOONNILAVU SERVICE CO-OPERATIVE BANK LTD.,
NO.163, REPRESENTED BY ITS SECRETARY.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 06-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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R.S.A. No.392 of 2012
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Dated this the 06th June, 2012
J U D G M E N T
Against concurrent verdict, plaintiff has come up in appeal. He filed O.S. No.105 of 2007 in the court of learned Munsiff, Erattupetta for re-conveyance of the suit property after holding that sale deed No.1968/1997 executed by him in favour of the first respondent is invalid, being a security for the due repayment of a loan. Appellant claimed that the suit property belonged to his deceased parents and he got right over it as per partition deed No.969 of 1970 and release deed No.95 of 1993. He claimed that he borrowed Rs.1,00,000/- from the first respondent and executed sale deed No.1968/1997 (a copy of which is Ext.A2) as security on the agreement that on repayment of the amount the property will be re-conveyed to him. He claimed that he continues to be in possession and enjoyment of the property notwithstanding the said assignment deed. Hence the suit.
2. First respondent contended that he purchased the property as per assignment deed No.1968/1997 and is in possession and enjoyment. He denied that Ext.A2 was executed R.S.A. No.392 of 2012 -: 2 :- as security for repayment of any loan. He claimed that he assigned portions of the suit property to the additional defendants as per Ext.B31 to B33 and 36.
3. Trial court held that though there were some litigations between the parties the decisions in those litigations will not operate as res judicata but found against his claim that assignment deed No.1968/1997 was executed as security for a loan transaction. Accordingly the suit was dismissed. That was confirmed by the first appellate court in A.S. No.129 of 2008. Hence this appeal.
4. It is contended by the learned counsel that evidence on record shows that notwithstanding the assignment deed No.1968/1997 appellant continues to be in possession and enjoyment of the suit property. According to the learned counsel, courts below did not take into account the fact that as per assignment deed No.1968/1997, 1.76 acres is stated to be assigned in favour of the first respondent for a paltry sum of Rs.1,00,000/-.
5. It came in evidence that some of the brothers and sisters of the appellant who were not parties to release deed No.95 of 1993 brought suits for partition of the suit properties R.S.A. No.392 of 2012 -: 3 :- and those suits were dismissed for default. While so, the first respondent filed O.S. No.45 of 2003 against the appellant for his eviction. According to the appellant, there was a mediation in the meantime, first respondent agreed to receive the balance amount due to him and execute the re-conveyance and accordingly that suit was withdrawn. But there is no reliable evidence brought before the court to show that O.S. No.45 of 2003 was withdrawn on any such understanding involving the first respondent. As learned counsel submits, O.S. No.45 of 2003 was dismissed for non-payment of the balance court fee.
6. First respondent filed O.S. No.535 of 1999 against the appellant for a decree for prohibitory injunction restraining the appellant from trespassing into the suit property and interfering with the first respondent's possession. There, appellant, it is not disputed contented that first respondent has no right or possession over the property and that assignment deed No.1968/1997 was executed merely as a security for the loan transaction. Trial court found in favour of possession claimed by the first respondent (obviously on the strength of the assignment deed referred above) and granted a decree restraining the appellant from trespassing into the property. It is submitted that R.S.A. No.392 of 2012 -: 4 :- appellant filed appeal against that judgment and decree but it was dismissed as time barred. Learned counsel submits that a Second Appeal preferred against the judgment and decree in the first appeal was also dismissed as time barred.
7. Yet another litigation is O.S. No.70 of 1998 filed by one Sajith Kappan against the appellant for recovery of money and for a declaration that sale deed No.1968/1997 is a sham document executed to defeat the claim of the said Sajith Kappan. Appellant remained ex parte in that suit. First respondent got impleaded in that suit and resisted it contending that he purchased the property as per assignment deed No.1968/1997 for valid consideration. Exhibits B7 and B8 are the copy of judgment and decree in O.S. No.70 of 1998. There, it was found that first respondent is a bona fide purchaser. Of course reliance was placed on the judgment and decree in O.S. No.535 of 1999 referred above.
8. Trial court did not take the decisions in O.S. No.535 of 1999 or O.S. No.70 of 1998 as creating bar of res judicata so far as the present suit is concerned. Assuming so, those decisions must be taken as judicial recognition of a disputed fact involving the appellant also. In O.S. Nos.70 of 1998 and 535 of 1999 it is R.S.A. No.392 of 2012 -: 5 :- found either, that first respondent is a bona fide purchaser of the property as per document No.1968/1997 or that pursuant to that document first respondent is in possession and enjoyment of the property. Those decisions can be taken as an item of evidence in favour of the first respondent, if not as constituting res judicata so far as the present suit is concerned.
9. Apart from the above, it is seen that first respondent has adduced enormous documentary evidence to show that he is in possession and enjoyment of the property. Exhibits B11 to B18 are the receipts for payment of building tax and land revenue. Exhibits B31 to B33 and 36 are documents executed by the first respondent in favour of additional defendants 2 to 6 in respect of portions of the suit property. First respondent has also produced certificate from the Village Officer showing his possession and enjoyment of the suit property.
10. True that appellant has adduced some oral evidence regarding the alleged money transaction pursuant to which sale deed No.1968/1997 was executed. Trial court has observed that though P.W.3 has supported the appellant, he has no much idea about the transaction and even as per the version of the appellant and P.W.3, it was one Baby Mathew who (allegedly) R.S.A. No.392 of 2012 -: 6 :- mediated the dispute between the appellant and first respondent. He is an identifying witness in the impugned assignment deed but he was not examined. Exhibit A1 is an extract from the bank obtained by the appellant to show that on 16.08.1997 he had remitted Rs.83,616/- towards loan on the security of the said document. But Ext.A2, comes thereafter. Exhibit A6 is the residential certificate and Ext.A7 is the revenue recovery notice dated 09.07.2002 issued to the appellant. Exhibit A8 series are the building tax receipts.
11. Trial court has considered the oral and documentary evidence and concluded that contention of the appellant that Ext.A2 was executed merely as a security for the loan transaction is not acceptable. That was confirmed by the first appellate court. I have also referred to the earlier decisions with the appellant and first respondent also as parties where it has been found either that first respondent is a bona fide purchaser or that he, pursuant to that purchase is in possession and enjoyment of the suit property. Those decisions can be taken as an item of evidence in support of the case pleaded by the first respondent.
12. On hearing the learned counsel and going through the judgments under challenge I do not find any R.S.A. No.392 of 2012 -: 7 :- substantial question of law involved in this appeal requiring a decision by this Court.
Second Appeal is dismissed.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv