KANNIAH NAIDU Vs. KALAICHELVAN

JUDGEMENT

(1.) The defendant in the original suit O.S.No.58 of 1997 on the file of the Additional District Munsif, Mayiladuthurai is the appellant in the second appeal. The respondent herein filed the above said suit for redemption of alleged oral mortgage regarding the suit property and in the alternative for recovery of possession of the suit properties based on title, from the appellant herein/defendant. The said plea was made on the basis of the contention that the respondent/plaintiff borrowed a sum of Rs.15,000/- from the appellant/defendant and created a oral mortgage by which the appellant/defendant was put in possession with the understanding that he could enjoy the income derived from the property in lieu of interest.

(2.) The appellant herein/defendant resisted the suit by contending that there was no such oral arrangement and on the other hand, the properties were in possession of his son Mohan pursuant to an agreement for sale dated 10.10.1989 executed by the father of the respondent herein/plaintiff in his capacity as Kartha of the family consisting of himself and the respondent/plaintiff. It was also contended that the entire sale consideration of Rs.40,000/- was paid by Mohan and the sale deed was also executed on 05.02.1990, but before the same could be presented for registration, the respondent/plaintiff demanded further amount and refused to go for registration and that the son of the appellant herein being the purchaser under the agreement, put in possession, was entitled to the protection under Section 53-A of the Transfer of Property Act, besides having a right to seek specific performance of the contract. As a corollary to the said plea, the appellant/defendant also took a plea that the father of the respondent herein/plaintiff as well as Mohan, the son of the appellant herein/defendant were necessary parties and the suit was bad for non-joinder of necessary parties.

(3.) Issues were framed by the trial Court and a trial was conducted in which two witnesses were examined as Pws 1 and 2 and 5 documents were marked as Exs.A1 to A5 on the side of the respondent herein/plaintiff. On the side of the appellant herein/defendant, three witnesses were examined as Dws 1 to 3 and 14 documents were marked as Exs.B1 to B14. The learned trial Judge, after considering the evidence, accepted the contention of the appellant herein/defendant that the right of redemption has not been substantiated. However, the learned trial Judge held that since the title of the respondent/plaintiff is not in dispute, he was entitled to a decree for recovery of possession of the suit property from the appellant herein/defendant. The learned trial Judge did it based on his finding that though the appellant / defendant set up an agreement for sale in favour of his son Mohan and Mohan's possession to be in part performance of the agreement for sale, such a contention was not substantiated by taking steps to implead the said Mohan or to examine him as a witness on his side. Accordingly, the learned trial Judge decreed the suit regarding the alternative plea for recovery of possession on the basis of title. The decree of the trial Court dated 18.03.2004 was challenged before the lower appellate Court, namely learned Principal Subordinate Judge, Mayiladuthurai in A.S.No.99 of 2004. The learned lower appellate Judge also concurred with the findings of the trial Court and dismissed the appeal by his judgment and decree dated 06.04.2005. As against the decree of the lower appellate Court dated 06.04.2005 made in A.S.No.99 of 2004, the present second appeal has been filed on various grounds set out in the memorandum of grounds of second appeal.