GEETHA VISWANATHAN Vs. SASIDHARAN

JUDGEMENT

(1.) The appellants are the legal heirs of the original defendant who had been impleaded as additional appellants, consequent to death of their predecessor, during the pendency of the appeal before the Court below. Concurrent decision rendered by two Courts below that the respondent / plaintiff is entitled to recovery of possession of the suit property on the basis of his title is challenged in the second appeal.

(2.) Subject - matter involved in the suit is fifteen cents of land with a building and three shop rooms in Maranelloor village. Admittedly, the above property was under the possession and enjoyment of one Pankajakshy on the basis of an assignment of mortgage over the property in her favour, in 1954. The mortgagor had instituted a suit for redemption of the property, in which Pankajakshy, the mortgagee, among other contentions had set up a claim of tenancy under the Kerala Land Reforms Act. That suit, which was not disputed, was dismissed for default. Asserting that she had obtained absolute title over the mortgage holding, she executed A1 deed in favour of her sister's son, the plaintiff, who was in occupation of one of the shop rooms in the property, conducting a tailoring shop. Ext. A1 sale deed is dated 03/05/1989. While the suit for redemption was pending, the original defendant, who is the brother - in - law of Pankajakshy as having married her sister, had obtained janmam right over the mortgage holding from the janmi under B3 sale deed. Though he had taken a sale deed over the property encumbered by the mortgage, admittedly, he did not take any steps to redeem the property from Pankajakshy, the mortgagee. Plaintiff, on the basis of the title obtained under A1 sale deed from Pankajakshy, laid the suit for its recovery alleging that during his absence while he had gone to Delhi in search of employment, the defendant had trespassed upon the property and reduced it into his possession. Resisting the suit claim, the defendant contended that Pankajakshy, the mortgagee, was his wife and he is holding the property as the title - holder by virtue of title derived under B3 sale deed from the janmi of the property. It was further contended that the previous suit for redemption, OS No. 3/1979, was compromised and, pursuant thereto, Ext. B4 sale deed was executed in his favour assigning the janmam right over the property. He also claimed right over the property as the legal heir of Pankajakshy who had passed away in 1993. A1 sale deed taken by the plaintiff was impeached by the defendant contending that it was not executed by Pankajakshy.

(3.) The Trial Court, appreciating the materials produced by both sides, with reference to the pleadings presented, initially, had passed a decree in favour of the respondent / plaintiff. That decree was challenged by the defendant preferring an appeal. In that appeal, the appellant / defendant filed two applications, one for framing an additional issue that A1 deed was vitiated by fraud on registration as it was registered at a different sub registry, which had no jurisdiction over the suit property, by including a non - existing property situate in such registry. The appellant / defendant, on the above ground, sought for amendment of his written statement to raise such a plea as well to impeach A1 deed obtained by the plaintiff. Yet another petition was filed for reception of two documents, a GO and another, to substantiate the plea which was sought to be included by amending his written statement. The lower Appellate Court, allowing both that applications, set aside the decree of the Trial Court and remitted the matter for fresh disposal. Respondent / plaintiff challenged the order of remand filing an appeal, FAO No. 187/2008 before this Court. That appeal was allowed setting aside the remand order by which the lower Appellate Court was directed to consider the merit of the application moved for admission of additional evidence in accordance with the provision covered under O.41 R.27 of the Code of Civil Procedure. The application moved by the appellant / defendant for amending his written statement to include a new plea that A1 deed was a fraud on registration, which was allowed by the lower Appellate Court, was found to be not entertainable, and it was dismissed. After the remand order was set aside and the appeal remitted back to the lower Appellate Court, after hearing the counsel on both sides, the impugned judgment was rendered by that Court by which the decree passed by the Trial Court was confirmed. Aggrieved thereby, the appellants, the legal heirs of the original defendant, have preferred this appeal.