BALASUBRAMANIYAM Vs. PANEER SELVAM

JUDGEMENT

(1.) This Second Appeal is filed challenging the judgment and decree of learned Additional District and Sessions Judge, Ariyalur, in A.S.No.76 of 2016 dtd. 7/12/2018 confirming the judgment and decree of the learned Principal District Munsif, Ariyalur in O.S.No.225 of 2008 dtd. 27/9/2012.

(2.) Appellant/plaintiff filed the suit to declare his right and title to the suit property with the consequential relief of permanent injunction restraining the defendants, their men, servants, agents, police in interfering with the peaceful possession and enjoyment of the suit property. The case of the appellant/plaintiff is that the suit property originally belongs to deceased first defendant Panneer Selvam, through a partition held in his family on 23/12/1998. Appellant/plaintiff purchased the suit property from him on behalf of his son-second defendant on a conditional sale with the condition to repurchase for a good and valuable consideration of Rs.3,200.00 on 18/6/1999 by a sale deed. Second defendant was a minor at the time of the sale. Appellant/plaintiff is in possession and enjoyment of the suit property. Condition of repurchase is that defendants, within 1 1/2 years, should get repurchase of the suit property, otherwise defendants loose their right of repurchase. Since the repurchase clause was embodied in the same document, the document would not come under the category of mortgage by conditional sale, but an outright sale with a condition to repurchase. Since the defendants had not exercised their right of repurchase option within the time stipulated under the document, the claim is barred by limitation. Without any legal right, they gave complaint to the police. Patta and Chitta are in the name of appellant/plaintiff. Suit property is a vacant site and appellant/plaintiff is intended to construct a building in the suit property. In the said circumstances, the suit is filed for the aforesaid reliefs.

(3.) Case of the defendants/respondents, in brief is as follows:- It is denied that the appellant/plaintiff purchased the suit property from the defendants as conditional sale with a condition to repurchase. First defendant Panneer Selvam borrowed a sum of Rs.3,200.00 from the appellant/plaintiff on 18/8/1999. Since the appellant/plaintiff demanded the document as security for the loan transaction, first defendant executed a deed of mortgage by conditional sale. First defendant was paying interest to the appellant/plaintiff regularly. Document dtd. 18/6/1999 is only a mortgage by conditional sale and not an outright sale with a condition to repurchase. There is only a debtor-creditor relationship between the appellant/plaintiff and defendants. There was no intention on the part of the defendants to sell the suit property as the property would fetch more than Rs.1,00,000.00 even in 1999. First defendant approached appellant/plaintiff in 2000 with the principal amount to settle the loan amount. But appellant/plaintiff refused to receive the amount and demanded another loan transaction pending between them has to be cleared. Since the first defendant had only money to settle this loan amount and the appellant/plaintiff insisted on paying another loan transaction, this loan could not be settled. Only recently, appellant/plaintiff made attempts to change patta in his name. Then only first defendant came to know that appellant/plaintiff had obtained a deed of conditional sale instead of mortgage by conditional sale. Appellant/plaintiff misrepresented to the first defendant with regard to the nature and character of the document. Since the appellant/plaintiff and first defendant were colleagues, first defendant believed the words of appellant/plaintiff and executed the document in good faith. Appellant/ plaintiff misused the good faith and created the document. On 11/10/2007, first defendant entered into a sale agreement in respect of the suit property with Thangarasu with the consent of appellant/plaintiff, to settle the loan amount. First defendant issued a notice to the appellant/plaintiff on 3/7/2008 and the appellant/plaintiff managed to return the notice as "unclaimed." The suit has no merits and is liable to be dismissed.