GOPI Vs. H DAVID

JUDGEMENT

(1.) The second Defendant in O.S. No. 61 of 1999 and the Plaintiff in O.S. No. 25 of 1999 on the file of the Sub Court, Padmanabhapuramis the Appellant in these two second appeals.

(2.) The Appellant filed the suit in O.S. No. 25 of 1999 for declaration of his title, possession of the plaint schedule property and for permanent injunction restraining the Defendant., the Respondent in S.A. No. 991 of 2004 from interfering with his possession and enjoyment of the suit property. The case of the Appellant in O.S. No. 25 of 1999 was that the suit property originally belonged to the first Respondent in S.A. No. 990 of 2004and he executed a sale deed in favour of the second Respondent in S.A. Nos. 990 of 2004 on 22.6.1996 and thereafter, the second Respondent in S.A. No. 990 of 2004 was enjoying the property and under a registered sale deed dated 3.2.1997, the said second Respondent in S.A. No. 990 of 2004 sold the property to the Appellant and since then the Appellant is enjoying the plaint schedule property and the first Respondent in S.A. Nos. 990 of 2004claimed to have entered into an agreement of sale with the Respondent in S.A. No. 991 of 2004 in respect of the same property and the said Sivagnanam also filed O.S. No. 46 of 1997 against the first Respondent in S.A. No. 990 of 2004 and obtained a decree andon the basis of the decree, the Respondent in S.A. Nos. 991 of 2004 was attempting to interfere with the possession and enjoyment of the plaint schedule property and the first Respondent H. David has no right to execute an agreement of sale in favour of the Respondent in S.A. No. 991 of 2004, as even prior to the agreement of sale dated 1.10.1996, the first Respondent H. David has sold the property to the second Respondent in S.A. No. 990 of 2004 and therefore, the Respondent in S.A. No. 991 of 2004 cannot claim right and title over the suit property and on that basis, filed the suitfor the relief's stated above.

(3.) The suit in O.S. No. 61 of 1999 was filed by one HarisDavid who is the first Respondent in S.A. No. 990 of 2004 for declaration and recovery of possession of the plaint schedule property. The case of Haris David, the first Respondent in S.A. No. 990 of 2004 was that the property belongs to him and he obtained loan of Rs. 9.25 lakhs from the Tamil Nadu Industrial Investment Corporation (TIIC) by mortgaging the said property and he was in need of some more money and for that purpose, he borrowed amount from the second Respondent in S.A. Nos. 990 of 2004 and the second Respondent viz., Johnson was demanding security forthe loan advanced and for that purpose, he agreed to execute a mortgage deed in favour of the second Respondent Johnson and taking advantage of the confidence reposed on Mr. Johnson, a document dated 22.6.1996 was executed as if the first Respondent executed a sale deed in favour of the said Johnson and in that sale deed, a property was mentioned as security and the said property which was mentioned as security did not belong to the first Respondent H. David and for the purpose of getting the document registered in Kerala, that piece of property was deliberately included by the second Respondent Johnson in S.A. No. 990 of 2004 as if the property belongs to the first Respondent H. David and therefore, the sale deed in favour of the second Respondent dated 22.6.1996 is void and it is also hit by Section 28 of the Registration Act and even after the execution of the sale deed dated 22.6.1996, the first Respondent continued to be in possession of the property and in the year 1999, the Appellant forcibly entered into the property and thereafter, he came to know that the second Respondent in S.A. No. 990 of 2004fraudulently obtained a sale deed from him in respect of the suit property and therefore, filed the suit for recovery of possession.