BIJI POTHEN Vs. THANKAMMA JOHN

JUDGEMENT

(1.) Following are the substantial questions of law framed for a decision in these second appeals arising from the judgment and decree in A.S. Nos. 130 of 2002 and 130(A) of 2002 of the Principal Sub Court, Kochi which arose from the judgment and decree in the suit and counter claim in O.S. No. 527 of 2000 of the Principal Munsiff's Court, Kochi:

(2.) Appellant denied that there was any fraud, misrepresentation or collusion as pleaded by the 1st respondent. He contended that he purchased the suit property for a total consideration of '50,000/- and with the eyes wide open, 1st respondent executed the assignment deed (Ext. B3) in his favour. Since the 1st respondent wanted to stay in the ground floor of the building in the suit property, she was allowed to do so on rental arrangement. 1st respondent executed Ext. B2, rent deed dated 04.11.1999 in favour of the appellant. Appellant claimed that he is in possession of the suit property though, by virtue of Ext. B2, 1st respondent was allowed to stay in the ground floor of the building as his tenant. He claimed that since out of the sale consideration of '50,000/-, he had already paid '35,000/- even prior to the execution of Ext. B3, assignment deed, he did not get the property measured at the time of Ext. B3 and hence the extent of property happened to be mentioned in Ext. B3 as 6 cents. He claimed that since the 1st respondent had title and possession of only 3 cents which alone she could convey to him, he is entitled to get back the proportionate value of 3 = cents (amounting to '16,600/-). 1st respondent prayed for dismissal of the suit and made a counter claim for recovery of 16,600/- with interest from the 1st respondent.

(3.) Respondents 2 and 3 denied that they had any such acquaintance with the 1st respondent as the latter pleaded. They contended that as desired by the 1st respondent, they found out a purchaser (appellant) since the 1st respondent wanted to sell the suit property to provide money to her daughter. Respondents 2 and 3 denied that there was any collusion, fraud or misrepresentation on their part in the matter of execution of the sale deed (Ext. B3).