MAKRISHNAN Vs. SANTHAN

JUDGEMENT

(1.) A.S.748/98 is an appeal preferred against the judgment and decree in O.S.1092/92 and A.S.221/03 is an appeal preferred against the judgment and decree in O.S.276/93 of the Sub Court, Thrissur. Originally this appeal was filed before the District Judge, Thrissur and that had been withdrawn to be heard along with the other appeal. Now the brief facts necessary for the disposal of the appeal are stated as follows. O.S.1092/92 is a suit filed for declaration and consequential injunction. The case of the plaintiff is it belonged to him by virtue of a document in the year 1967 and he had made improvements in the property. According to him he was badly in need of money and therefore contacted the defendant who is a money lender and the defendant wanted the mortgage deed to be executed. The plaintiff readily agreed, he had gone to the Registrar's office and executed the document but later he came to know that the document was an out and out sale and not a mortgage. Thereafter he contacted a social worker namely Sivaraman Nair who is also an advocate clerk and he had promised to take appropriate proceedings to get the document set aside or corrected but later he received a notice from Sivaraman Nair stating that he had agreed to sell the property to Sivaraman Nair or to return Rs.30,000/-. It is also contended that the defendant had taken blank signed papers and had created documents to defeat the interest of the plaintiff. Therefore the plaintiff has prayed for setting aside the document and also for a permanent injunction.

(2.) THE defendant in the suit contended that it is not a mortgage it is an out out sale for proper consideration and on the strength of the document the other tenants had given rent to him and that the plaintiff had even executed a lease deed and therefore the suit is not liable to be entertained.

(3.) HEARD. The crux of the matter depends upon the correctness of the document and the nature of the document executed by the plaintiff in O.S.1092/92 in favour of the defendant in that case. Admittedly the plaint schedule property is having an extent of 2 cents with a row of rooms therein. It is the case of the plaintiff that he wanted to borrow money from the defendant who is a money lender and as per his request he had executed a mortgage deed but to his utter dismay he found it as a sale deed later and therefore he wanted to set aside that or to declare that the document is invalid.