K O MATHEW Vs. THOMAS

JUDGEMENT

(1.) A. S. No. 225 of 1991 is filed by the plaintiff in O.S. No. 101 of 1985 on the file of the Subordinate Judge's Court, Thiruvananthapuram. He is also the appellant in A.S. No. 6 of 1999 filed against the judgment and decree in O.S. No. 326 of 1986 on the file of the Subordinate Judge's Court, Thiruvananthapuram. Both the suits were tried jointly and a common judgment was passed by the Trial Court. O.S. No. 101 of 1985 was treated as the leading case. O.S. No. 101 of 1985 was filed by the appellant herein for specific performance and O.S. No. 326 of 1986 was filed in respect of the same property by the 1st respondent in the appeal against the appellant and his wife for declaration of title and for a mandatory injunction to vacate the premises and also directing the defendants to remove the structures. That suit was in fact filed originally as O.S. No. 301 of 1984 before the Munsiff's Court, Thiruvananthapuram, and was transferred to be tried along with O.S. No. 101 of 1985 pending before the Principal Subordinate Judge's Court, Thiruvananthapuram. The plaintiff in O.S. No. 326 of 1986 is the 1st defendant in O.S. No. 101 of 1985.

(2.) The original appellant in these two appeals died pending the appeals and his legal representatives have been impleaded as additional appellants. The case of the appellant as stated in O.S. No. 101 of 1985 is as follows. The plaint schedule property is having an extent of 8 cents and it contains a building. According to the plaintiff, one Idicheria was having the business of money lending. He died on 16-3-1983. Defendants 2 to 6 are his legal heirs. As part of his business, he used to purchase immovable properties for his customers in his name or in the name of his close relatives. Sale consideration was provided by him on the understanding that the same should be repaid by the customer in instalments with high rate of interest and on completion of the entire instalments a conveyance deed will be executed in the name of such customer or his nominee. The plaintiff had purchased 10.96 through this method with Idicheria in 1974 and the document was executed in the name of the plaintiff's wife. Similarly, for the plaint schedule property also, the plaintiff approached Idicheria and on negotiations the price was fixed as Rs. 51,000/-. The document showed only Rs. 35,000/- as directed by Idicheria for minimising the registration expenses. The property was purchased in the name of the 1st defendant who was the brother inlaw of Idicheria and the entire amount was to be paid in 27 instalments at the rate of Rs. 4,000/- per mensem and the balance Rs. 2,750/- as the 28th and final instalment. Possession of the property was given to the plaintiff on the date of purchase itself. Since the plaintiff was in short of funds, he agreed for all the terms set out by Idicheria and the property was purchased in the name of the 1st defendant. The plaintiff paid an amount of Rs. 65,900/- in instalments up to 4-6-1980 and a further amount of Rs. 6,000/- in 6 instalments of Rs. 1,000/- from 2-10-1982 to 4-8-1983. Printed receipts had been issued to the plaintiff by Idicheria. In 1980, when the plaintiff tried to make some repairs to the building, the adjacent owner filed a suit as O.S. No. 1221 of 1980 before the Munsiff Court for perpetual injunction. The plaintiff alone contested that suit. The plaintiff further contended that he was ready and Willing to pay the balance amount due under the agreement. But it was postponed by Idicheria on account of pendency of O.S. No. 1221 of 1980. Immediately after the disposal of that suit, Idicheria died. However, the 1st defendant filed O.S. No. 301 of 1984 through his power-of-attorney holder, the 4th defendant against the plaintiff and his wife for declaration of his title and mandatory injunction. The 1st defendant is fully aware of the transaction between the plaintiff and Idicheria and defendants 2 to 6 being the legal heirs of Idicheria are also bound by the transaction between the plaintiff and Idicheria. Since O.S. No. 301 of 1984 was filed the plaintiff realised that the defendants did not want to honour the agreement. Hence the suit was filed for directing the 1st defendant to execute the sale deed in respect of the plaint schedule property and the building therein in favour of the plaintiff on payment of the balance purchase price of Rs. 38,850/- and also directing defendants 2 to 6 to cause the execution of the sale deed by the 1st defendant and if for any reason it is found that the said reliefs cannot be granted, the plaintiff may be allowed to realise Rs. 72,900/- being the amount paid by the plaintiff to Idicheria and the 1st defendant with 12% interest. Defendants 2 to 6 remained ex parte.

(3.) The 1st defendant contended that the property was purchased by him with his own funds and the plaintiff was allowed to occupy the premises only for enabling him to shift his hotel business temporarily till the reconstruction of the building where the hotel was situated in the nearby place and when he refused to shift back the suit for mandatory injunction was filed and it was only after one year of such filing of the suit that the present suit is filed. The entire case of the plaintiff that the 1st defendant was only a benamidar for Idicheria was denied. The title deed was handed over to the plaintiff to enable him to get the extension of the building and plan approved by the local authority. At that time, the neighbouring owner filed O.S. No. 1221 of 1980 and the 1st defendant had left for Nigeria, and the plaintiff promised to contest that suit. In that suit, plaintiff herein admitted the title of the 1st defendant. The suit is barred by limitation as well as under S.53(a) of the Transfer of Property Act. The 1st defendant has sold the property on 26-3-1985 to Abrahim and his wife Annamma though through his power of attorney and they are necessary parties to the suit. They were subsequently impleaded as additional defendants 7 and 8 in the suit.