SIVAN PANDI Vs. P.MURUGAIAH

JUDGEMENT

(1.) Against the modifying judgment of the lower Appellate Court, the plaintiff has filed above second appeal. The plaintiff is aggrieved by the judgment of the lower Appellate Court, in so far as the relief of declaration of title, recovery of possession and damages stood rejected.

(2.) The suit property is a house (Door No.25, Ward 34, Tirunelveli Corporation). Minor defendants 2 and 3 are the children of the 1st defendant and they form a Joint Hindu Family. The suit property was acquired by the 1st defendant under a partition deed in Ex.A1, dtd. 17/1/1989. The plaintiff stated that the 1st defendant in his capacity as the Karta of the Joint Hindu Family, borrowed a sum of Rs.32,000.00 for his family expenses and executed a mortgage deed under Ex.A2 on 4/6/1998, in favour of the plaintiff, agreeing to repay the same with interest.Whileso, the 1st defendant approached the plaintiff and expressed his intention to sell the suit property for settling an antecedent mortgage debt of Rs.7,500.00 payable to one Jamuna Rani. The plaintiff agreed to purchase the suit property for a sale consideration of Rs.1,37,656.00 by acceding to the 1st defendant's request to discharge the mortgage debt under Ex.A2, at a later point of time. According to the plaintiff the entire sale consideration was paid on 10/9/2000, and prior to the registration of the sale Deed on 11/9/2000, the defendant executed a Yadhast/Memorandum, Ex.A3 on 10/9/2000, acknowledging the receipt of the entire sale consideration and seeking 3 months time to vacate the suit property. Thereafter, the 1st defendant as Karta of the Joint Hindu Family, executed the registered sale Deed, Ex.A4 (Ex.A.15 original) on 11/9/2000. However, the 1st defendant failed to keep up his promise of repaying the mortgage loan and vacating the premises by the end of December 2000. When the plaintiff questioned the 1st defendant on his breach of promise, he prayed for further time to vacate and also executed a pronote, Ex.A5 dtd. 21/1/2001, for repayment of Rs.32,000.00 borrowed by him from the plaintiff. Since the 1 st defendant was acting against the interest of the plaintiff and started harassing him by lodging false complaints, the plaintiff issued a legal notice to the defendant on 22/7/2002, calling upon him to vacate and surrender possession of the suit property and repay the loan. The defendant neither complied with the demands of the plaintiff nor issued a reply notice and therefore, the plaintiff left with no other alternative filed the suit for declaration of his title, recovery of possession, damages for unauthorised use and occupation and for recovery of the loan amount of Rs.32,000.00 with interest.

(3.) The 1st defendant contested the suit contending inter alia, that he had never borrowed Rs.32,000.00 from the plaintiff and that he had borrowed only Rs.20,000.00, and that amount was repaid, albeit in excess. The defendant contended that the plaintiff was a money lender and that the plaintiff by exploiting the poverty and ignorance of the 1st defendant created many documents. The defendant contended that none of the documents relied on by the plaintiff were legally valid. The 1 st defendant contended that the plaintiff in collusion with Jamuna Rani, who was illegally running a chit business, created the suit documents. The defendant contended that mortgage deed in favour of the plaintiff was not true and also that the sale Deed dtd. 11/9/2000, was illegal and unsustainable. The defendant denied the execution of the Pronote by contending that it was a fabricated document. The defendant contended that as he was in lawful possession of the suit property, the plaintiff was not entitled to the relief of declaration, recovery of possession and damages. The defendant therefore prayed for the dismissal of the suit.