SEEMA Vs. JOHNY THOMAS

JUDGEMENT

(1.) These second appeals arise from the common judgment and decree of learned first Additional District Judge, Ernakulam in A.S. Nos. 210 and 217 of 2007 arising from the judgment and decree of learned Second Additional Sub Judge, Ernakulam in O.S. Nos. 561 of 1999 and 185 of 2002. For the sake of convenience parties are referred as plaintiffs and defendants as in O.S. No. 561 of 1999. Appellants/plaintiffs filed O.S. No. 561 of 1999 for a declaration that Exts.X1 to X3, assignment deeds are null and void and for a mandatory injunction to direct defendants 3 and 4 to vacate from the ground floor of the building in question. The suit property in O.S. No. 561 of 1999 is 8.190 cents and building situated thereon. According to the plaintiffs, at a time when they were engaged in construction of the building they fell short of money and approached defendants 1 and 2 for a loan. Defendants 1 and 2 agreed to lend Rs. 5,00,000/-. It was agreed that plaintiffs will execute mortgage deeds in favour of defendants 1 and 2. Accordingly, defendants 1 and 2, made available loan but, less Rs. 1,10,000/- which defendants 1 and 2 appropriated as advance interest etc. Pursuant to the agreement with defendants 1 and 2, plaintiffs 1 and 2 executed Exts.X2 and X3, document Nos. 1953 and 1954 of 1998 on 08.06.1998 in favour of defendants 1 and 2 under the impression that the said documents are mortgage deeds. Later, there was some difference of opinion with defendants 1 and 2 when the latter threatened plaintiffs that based on the 'sale deeds' plaintiffs have executed, they will take action. According to plaintiffs, it is only then that they learned that the documents they have executed (Exts.X2 and X3 dated 08.06.1998) are sale deeds in favour of defendants 1 and 2. Thereon, plaintiffs filed O.S. No. 561 of 1999 to declare that Exts.X2 and X3 are null and void. Along with the institution of suit plaintiffs filed I.A. No. 4998 of 1999 for an order of temporary injunction to restrain defendants 1 and 2 dealing with the suit property. It is submitted that the said application was posted on 14.10.1999. On defendants 1 and 2 taking time, the application was posted on 05.11.1999. Defendants 1 and 2 on 16.10.1999 executed Ext-X1, sale deed No. 4359 of 1991 in favour of defendants 3 and 4. It is the further case of plaintiffs that pursuant to Ext.X1, assignment deed defendants 3 and 4 forcibly occupied the ground floor of the building. Thereon plaintiffs got plaint in O.S. No. 561 of 1999 amended to incorporate a prayer that Ext.X1 also may be declared as null and void and for mandatory injunction to direct defendants 3 and 4 to vacate the ground floor of the building.

(2.) Defendants 1 and 2 contested the suit and claimed that Exts.X2 and X3 are assignment deeds in their favour, taken for consideration. They denied that there was any loan transaction between them and plaintiffs or any agreement to execute deeds of mortgage. They also claimed that they transferred the property to defendants 3 and 4 as per Ext.X1, dated 16.10.1999. Defendants 3 and 4 raised similar contentions and claimed that plaintiffs are licensees of first floor of the building on an agreement to pay fee of Rs. 2500/- per month. Defendants 3 and 4 filed O.S. No. 185 of 2002 for a mandatory injunction to direct plaintiffs (in O.S. No. 561 of 1999) to vacate first floor of the building and for recovery of Rs. 1,16,000/- with interest(r) 12% per annum being arrears of licensee with damages for future use and occupation. Plaintiffs in O.S. No. 561 of 1999 who are defendants in O.S. No. 185 of 2002 contended, as averred in the plaint in O.S. No. 561 of 1999 that as per the agreement with defendants 1 and 2, they executed Exts.X2 and X3 as if those documents are deeds of mortgage. They also contended that since those documents are null and void, defendants 3 and 4 acquired no right over the suit property by virtue of Ext.X1, assignment deed dated 16.10.1999. Trial court tried the suits jointly and accepting the case of plaintiffs in O.S. No. 561 of 1999 granted decree as prayed for while O.S. No. 185 of 2002 was dismissed. Defendants 3 and 4 in O.S. No. 561 of 1999 challenged judgment and decree in that case in A.S. No. 210 of 2007. They, as plaintiffs in O.S. No. 185 of 2002 challenged dismissal of that suit in A.S. No. 217 of 2007. Learned Additional District Judge reversing the judgment of the trial court held that the plea of plaintiffs that they have executed deeds of mortgages in favour of defendants 1 and 2 cannot be accepted since they being literate, young persons a plea of non est factum is not available to them. First appellate court also found that the plea of fraud raised by plaintiffs in O.S. No. 561 of 1999 is not established. Consequence was reversal of judgment and decree of the trial court. O.S. No. 561 of 1999 was dismissed and in O.S. No. 185 of 2002 a decree was granted in favour of defendants 3 and 4 (plaintiffs in that suit) for mandatory injunction directing plaintiffs in O.S. No. 561 of 1999 to vacate first floor of the building. Learned Additional District Judge did not grant any monetary relief as claimed by defendants 3 and 4 (as plaintiffs) in O.S. No. 185 of 2002. Defendants 3 and 4 have not challenged that part of the decree in A.S. No. 215 of 2007. On the other hand, plaintiffs in O.S. No. 561 of 1999 who are defendants in O.S. No. 185 of 2002 challenged the common judgment and decree of learned Additional District Judge in these second appeals raising the following substantial questions of law.

(3.) Learned Senior Advocate for plaintiffs/appellants has contended that learned Additional District Judge has misread the contentions raised by the parties. It is contended that learned Additional District Judge has proceeded as if the plea raised by the plaintiffs is one of forgery of documents while there was no such contention raised by the plaintiffs. It is also contended by learned Senior Advocate that unlike in cases where there is fraud or misrepresentation as to the contents of documents which make the documents voidable, plaintiffs have pleaded that the very character of the document is the result of the fraud. Reliance is placed on the decision in Ningawwa v. Byrappa Shiddappa Hireknrabar & Ors., 1968 AIR(SC) 956. According to the learned Senior Advocate in such situation, plea of non est factum is not available in favour of the executee of the document. It is also contended that facts and circumstances of the case would support the plea of fraud and misrepresentation as to the character of Exts.X2 and X3. It is pointed out by learned Senior Advocate that while in Exts.X2 and X3 the sale consideration mentioned is Rs. 75,000/- each, in Ext.X1, assignment deed dated 16.10.1999 executed after an year of execution of Exts.X2 and X3 the sale consideration mentioned is Rs. 3,00,000/-. The same property was mortgaged by defendants 3 and 4 in favour of a Co-operative bank on 14.03.2000 for Rs. 6,00,000/-. According to the learned Senior Advocate, the meagre sale consideration stipulated in Exts.X2 and X3 is an indication that the documents were got executed by fraud and misrepresentation as pleaded by the plaintiffs. In that view of the matter, it is contended that first appellate court was not correct in reversing the finding of fact entered by the Trial Court.