E.P.PAULOSE Vs. DEVASI

JUDGEMENT

(1.) The defendant in O.S.No.355/1999 before the Munsiff Court, Aluva who suffered a decree for redemption is the appellant.

(2.) Shorn of unnecessary details, essential facts required for the purpose of disposal of this appeal are as follows: The appellant claimed to be a tenant under the respondent. While so, Ext.A1 mortgage deed was executed. The case put forward by the plaintiff was that as per Ext.A1, relationship between the parties changed into one of mortgagor and mortgagee and thereafter the defendant in the suit could not claim the status of a tenant. The mortgage amount was Rs.3,000/ - and redemption was possible at any moment of time. On the allegation that in spite of demand of surrender of property after receiving the mortgage amount, the defendant did not heed to the demand and therefore the suit was laid.

(3.) The defendant resisted the suit. It is contended that the mortgage deed is not supported by consideration and he had no intention to execute a mortgage deed. The plaintiff had executed an agreement in favour of the defendant after receiving an advance amount of Rs.1,000/ - on 15.04.1995. The plaintiff had received further advance amount of Rs.64,000/ - from the defendant on 27.07.1993. The defendant was put in possession of the property as a lessee and while he was continuing so, the so called mortgage deed was executed. The contention taken was that the status of the defendant as lessee continued even after the execution of Ext.A1 and the plaintiff is not in law entitled to get physical possession of the property. As the defendant is a lessee, he can be evicted only under Act 2 of 1965. It is also contended in the written statement that initially rent was Rs.650/ - per month which was enhanced to Rs.750/ - per month since 01.12.1994, and till 31.10.1995 the defendant has been regularly paying rent. Pointing out that the leasehold right of the defendant continues to exist, he prayed for dismissal of the suit.