Kerala High Court · 2024

The plaintiff in suit for declaration and injunction, has filed this appeal. The parties are referred according to their status before the Trial Court.

2. The plaintiff filed the suit with the averments that the plaintiff is a housewife and the defendants, who are husband and wife, are money lenders; that the Plaint Schedule Property of 4.05 ares and building therein belongs to the plaintiff; that the plaintiff availed a loan of Rs.2,50,000/- from the 2nd defendant in the year 2006; that as insisted by the 2nd defendant the plaintiff had to execute Ext.A3 sale deed in favour of the 2nd defendant as a security for the said loan; that the 2nd defendant had agreed to re- convey the property to plaintiff on return of the said amount of Rs.2,50,000/- ; that the plaintiff executed lease deed also as security with respect to the building in the property as demanded by the defendant No.2; that at the time of execution of Ext.A3, the property was under mortgage in favour of bank; that the plaintiff paid the amount due to the bank and after release of mortgage, the Ext.A2 Title deed received from the Bank was also handed over to the defendants on their demand; that the defendant No.1 RSA No.345 of 2024 3 attempted to evict the plaintiff by force from the plaint schedule property; that the sale deed and lease deed were executed only as security; the plaintiff never intended to execute those documents; and that the value of the plaint schedule property is Rs.25,00,000/-. On these contentions, the plaintiff sought a decree to set aside Ext.A3 sale deed and to declare that the same is not binding on the plaintiff and to allow the plaintiff to deposit Rs.2,50,000/- before the Court. The plaintiff also sought for Permanent Prohibitory Injunction to restrain the defendants from forcibly evicting the plaintiff from the plaint schedule property and from alienating the plaint schedule property and from inducting strangers into the plaint schedule property.

3. The defendants filed Written Statement with a Counter Claim seeking surrender of vacant possession of the Counter Claim property contending that, the suit is barred by limitation; that the allegation that the defendants are money lenders is incorrect; that the defendant No.1 purchased the plaint schedule property as per Ext.A3 sale deed for a sale consideration of Rs.15,00,000/-; that the property was mortgaged to State Bank with a liability of Rs.5,00,000/-; that the defendants advanced Rs.10,00,000/- to the plaintiff and they agreed to clear the bank liability; that the defendant No.1 cleared the bank liability on 22.07.2010; that RSA No.345 of 2024 4 plaintiff obtained title deed from the Bank and handed over the same to the 1st defendant; that the plaintiff wanted to reside in the property and hence executed Ext.B3 to B6 lease deeds in favour of the 1st defendant; that the claim for reconveyance of the property is without any merit; that Ext.A3 sale deed is valid; that the demand of the defendants to vacate from the building was not complied by the plaintiff and that the suit is liable to be dismissed. The defendants claimed recovery of possession of the counter claim building from the plaintiff.

4. The plaintiff filed a Written Statement to the Counter Claim raising the very same contentions which she raised in the Plaint.

5. The Trial Court dismissed the suit and allowed the Counter Claim directing the plaintiff to surrender vacant possession of the counter claim schedule property to the defendants within 30 days failing which the defendant is allowed to get the possession recovered through the Court at the cost of the plaintiff.

6. Though the plaintiff filed A.S.No. 109 of 2019 before the First Appellate Court, the same was also dismissed confirming the judgment and decree of the trial Court.

7. I heard the learned counsel for the appellant. The RSA No.345 of 2024 5 learned counsel for the appellant submitted that the Trial Court as well as the Appellate Court ought to have found that Ext.A3 document was given only as a security for the loan availed by the plaintiff. It is highly improbable that such a valuable property was given for a meagre consideration of Rs.2,50,000/-. There is no chance that the defendants purchasing the plaint schedule property when mortgage was there in favour of the bank.

8. Though the learned counsel for the appellant contended that there was an oral agreement to re-convey the plaint schedule property on repayment of the loan, the same was not proved. Such an oral understanding is highly improbable and if such an understanding was there, nothing prevented the parties from entering into an agreement for the same. No such agreement was entered. That apart, if Ext.A3 document was intended only as a security for the loan, the plaintiff would not have handed over Ext.A2 original title deed when the bank liability is settled subsequently. According to the plaintiff, when the bank liability is settled in the year 2010, she demanded reconveyance of the plaint schedule property from the defendants and they refused. But Ext.B4 to B6 Rent deeds are executed subsequent to 2010. If, the case pleaded by the plaintiff that she demanded reconveyance of the property on settlement of bank liability in 2010, the plaintiff RSA No.345 of 2024 6 would not have executed Ext.B4 to B6 rent deeds. That apart, PW5 Village Officer deposed that the mutation of the plaint schedule property was effected in favour of the 1 st defendant on

23.07.2010. When the plaintiff pleads that the property was given only as a security with an understanding that the same would be reconveyed on the settlement of the bank loan, the burden is heavy upon the plaintiff to prove her case. In order to prove the oral contract there is only the interested testimony of PW1 and 2 in the matter. No circumstance which prevented the plaintiff from insisting a written agreement has been brought out from the evidence of PW1 and PW2. There is no evidence that defendants are engaged in money lending business. Ext.B11 and 12 Pay Slips would show that the defendants have paid amounts to the bank towards settlement of the loan. If the intention of the parties while executing Ext.A3 sale deed was only to create security for the loan availed by the plaintiff from the defendants, there was no need for the defendants to pay the amounts to the bank to settle the loan liability.

9. Though there is a ground taken in the Memorandum of Appeal that the Trial Court could not have given recovery of the possession of the plaint schedule property and the remedy is to file Rent Control Petition, learned counsel for the appellant submitted RSA No.345 of 2024 7 that the building is situated in an area were the Kerala Building (Lease and Rent Control) Act is not made applicable. The Appellate Court has entered a finding that the building is not shown to be situated in a rent control area. Under the circumstances, I do not find any illegality in the judgments passed by the Trial Court as well as the Appellate Court. Accordingly, this Regular Second Appeal is dismissed. Anu Sd/- M.A.ABDUL HAKHIM JUDGE