MOHAMMED USMAN SAHIB Vs. CHAND BASHA

JUDGEMENT

(1.) The Respondents herein filed a Suit for Declaration of Title and for Permanent Injunction restraining the Appellants from interfering with their peaceful possession and enjoyment of the Suit property. The Trial Court dismissed the Suit and aggrieved by the same, the Respondents preferred the First Appeal. The First Appellate Court reversed the findings of the Trial Court and decreed the Suit as prayed for. Aggrieved by the same, the Defendants are before this Court.

(2.) According to the Respondents the Suit property originally belonged to one K. Abdhul Sathar Sahib. He died leaving behind three sons and one daughter. In the Family Partition the Suit property was allotted to the share of First Defendant viz., Mohammed Usman Sahib. Thus the First Defendant in the Suit Mohammed Usman Sahib became owner of the Suit properties. He in order to meet the Marriage expenses of his daughter and to discharge sundry debts had sold the Suit properties in favour of his brother original Plaintiff in the Suit viz., Abdul Ajeez under a registered conditional Sale Deed, dtd. 1/9/1980 for a Sale consideration for Rs.1,500..00 As per the recitals of the said conditional Sale Deed, if the First Defendant failed to pay back Rs.1,500.00 to the deceased original Plaintiff within a period of five years from the date of execution of the Sale Deed, the conditional sale shall be construed as absolute sale in favour of Plaintiff. It was claimed by the Original Deceased Plaintiff, in spite of several request, the First Defendant failed to pay back the amount to him. Hence, from 1/9/1985 onwards Plaintiff became absolute Owner of the Suit property and he had been in possession and enjoyment of the Suit property. It was also claimed that on account of close relationship between the parties, Plaintiff did not choose to pay Land Tax to the Government and there was no mutation of Revenue records. It was claimed that due to escalation of the land prices, the First Defendant started acting against the interest of the Plaintiff and hence a Legal Notice was issued on 12/9/2006 calling upon First & Fourth Defendant not to interfere with the peaceful possession and enjoyment of the Plaintiff over the Suit properties. The First and Fourth Defendant evaded the receipt of the Legal Notice and caused the same to be returned. It was also claimed that the First Defendant executed a sham and nominal Gift Deed in favour other Defendants settling the Suit properties in their favour. In such circumstances, the original Plaintiff deceased Abdul Ajeez filed a Suit for Declaration and Injunction as mentioned above.

(3.) The Appellants herein filed a Written Statement and resisted the Suit on the ground that the document dtd. 1/9/1980 was not a conditional Sale Deed but it was a Mortgage by conditional sale. It was contended by them that the said document could not be treated as absolute Sale Deed. It was also contended by the Appellants/Defendants that the First Defendant borrowed a sum of Rs.1,500.00 from Plaintiff and Mortgaged the Suit property. Later on, he paid back the entire amount of Rs.1,500.00 to the Plaintiff on 15/11/1986 and acknowledging the same, Plaintiff also executed a Marukirayam Agreement in favour of First Defendant and returned the original so called conditional Sale Deed 1/9/1980. Thus the Defendants pleaded discharge of the Mortgage debt. It was also claimed that Plaintiff himself acknowledged receipt of Rs.1,500.00 on 15/11/1986 and executed reConveyance Agreement and hence, he was estopped from contending that the First Defendant had not repaid the said amount. It was also claimed that the Plaintiff had never exercised any right of ownership in respect of the Suit property. The Appellants also claimed that the possession of the Suit property remained with the First Defendant and he in his capacity as the owner of the Suit property executed a Registered Gift Deed, dtd. 29/9/2006 in favor of 4th Defendant settling portion of the Suit property in his favour. It was also contended that remaining portion of the Suit property was settled in favour Defendants 2 & 3 and the same was accepted by the beneficiaries. The Defendants also claimed that they had no knowledge about the pre-suit Legal Notice issued by the Plaintiff. Thus, by asserting their Title as well as possession over the Suit property, the Appellants/Defendants sought for dismissal of the Suit.