KUTTANKAVIL SHAMSUDHEEN Vs. SAINABHA

JUDGEMENT

(1.) The common order passed by the Court of the Subordinate Judge, Manjeri on two Interlocutory Applications for temporary injunction filed in O.S.No.292 of 2011 is under challenge in this appeal. The second defendant in the suit is the appellant. The respondents are the plaintiff and the first defendant respectively.

(2.) The plaintiff is running a petroleum outlet. She has instituted the suit for a declaration that the registered sale deed executed by her in favour of the second defendant in respect of the plaint schedule property is vitiated by fraud and collusion and for a decree setting aside the said sale deed on that ground. A decree for permanent prohibitory injunction restraining the second defendant from interfering with the possession of the plaintiff over the plaint schedule property and other ancillary reliefs are also sought in the suit. The case of the plaintiff is that she is in possession of the plaint schedule property by virtue of Ext.A1 assignment deed and is residing in the residential building therein. According to her, at the instance of the first defendant who is none other than her son, she borrowed a sum of Rs.12 lakhs from the second defendant and while borrowing the said amount, she had executed the sale deed sought to be set aside on the impression that the same was a mortgage deed and it is only when the second defendant required the plaintiff to vacate the property, she came to know that the document executed by her was a sale deed. It is alleged by the plaintiff in the plaint that the sale deed executed by her in favour of the second defendant was obtained by the first defendant in the name of the second defendant who is his friend by playing fraud on her. It is also alleged by the plaintiff in the plaint that she is not a person who is capable of understanding the nature of the documents. .

(3.) The first defendant remained ex -parte. The second defendant filed a written statement contending interalia that the plaint schedule property was obtained by him by virtue of Ext B1 sale deed for a consideration of Rs.11,42,800/ -; that pursuant to the purchase, mutation has been effected in respect of the property in the name of the second defendant and that he is in absolute possession and enjoyment of the property. It is stated by the second defendant in the written statement that neither the plaintiff nor the first defendant had ever approached him for any loan and that he has not given any loan to them at any point of time. According to the second defendant, he was admitted in Kondotty Relief Hospital on 3/9/2011 for a surgery and was discharged from the hospital only on 17/9/2011 and in the meanwhile, on 16/9/2011, the plaintiff trespassed upon the plaint schedule property and thereafter filed the suit, stating falsely that she is in possession of the property.