LAWS(KER)-1998-2-6

NOORUDEEN Vs. UMAIRATHU BEEVI

Decided On February 06, 1998
NOORUDEEN Appellant
V/S
UMAIRATHU BEEVI Respondents

JUDGEMENT

(1.) This appeal is directed against the judgment delivered by the District Judge, Kollam in A.S. No. 123 of 1989 dated 22-11-1991. The appellants are the legal representatives of the second defendant who were brought on record as defendants 6 to 8 on the; demise of the second defendant. The original plaintiff Mytheen Kunju Abdul Rehman Kunju died pending the first appeal. Therefore his legal representatives have been brought on record as plaintiffs 2 to 5 who are the respondents along with other defendants 1, 3, 4 and 5.

(2.) The deceased plaintiff filed O.S. No. 622 / 83 before the Munsiff Court, Quilon for declaration of title and possession of the plaint schedule property, to set aside Ext. B2 sale deed and Ext. B3 hypothecation deed and for prohibitory injunction restraining the defendants from committing trespass into the suit property and from interfering with the enjoyment of the plaintiff. The plaint schedule property is 30 cents. The case of the plaintiff for consideration is as follows :

(3.) The first defendant filed a written statement supporting the case of the first plaintiff. In other words, his allegations in the written statements would be that he believed the second defendant that it was only a hypothecation deed executed for Rs. 3000/- and, though he has studied up to Pre Degree, he did not go through the documents. The defendants 4 and 5 in their written statement would contend that the first plaintiff transferred his right to the second defendant under Ext. B2 sale deed on receipt of Rs. 3000/- and put the second defendant in possession of the same. Now the suit property is in the possession of the 4th defendant by virtue of the power of attorney executed by the second defendant. The second defendant then executed Ext. B3 hypothecation dated 27-6-83 in favour of the 3rd defendant. The averment of the first plaintiff is that he was totally blind, that he was misrepresented by the second defendant that Ext. B2 is a hypothecation deed, etc. are denied. The second defendant never agreed to seek a job for the first defendant in Gulf countries nor did he demand Rs. 3000/- from the first defendant or from the first plaintiff for preliminary expenses. The sale deed, Ext. B2 was for Rs. 3000/- received by the first plaintiff and the first plaintiff knew even at the time of execution of Ext. B2 that it is a sale deed and not a hypothecation. The first plaintiff and first defendant executed another sale deed (Ext. B1) subsequently on 20-9-83. The execution of Ext. B1 sale deed would apparently disclose that there was no bitter enmity or whatsoever between the first plaintiff and his son the first defendant at the time of execution of Ext. B2 sale deed. The defendants never attempted to trespass into the suit property since the suit property is in their possession. The suit has been filed at the instigation of the first defendant. The suit property has been attached in OS No. 46/83 filed against the second defendant. So the suit is liable to be dismissed. Pending the suit, the second defendant died. Therefore his father and children were brought on record as defendants 2 to 8 who are the appellants herein and who are accepting the written statement filed by the defendants 4 and 5.