Regular second appeal against a decree dismissing a suit for re-conveyance alleging the sale deed was security for a loan. The Court found no substantial question of law involved and dismissed the appeal, upholding the contention that the respondent is a bona fide purchaser in possession.
Second appeal dismissed; all pending interlocutory applications stand dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 6TH DAY OF JUNE 2012/16TH JYAISHTA 1934
RSA.NO. 392 OF 2012 ()
AS.129/2008 OF SUB COURT, PALA OS.105/2007 OF MUNSIFF-MAGISTRATE, ERATTUPETTA
APPELLANT/APPELLANT/PLAINTIFF:
N.V. THOMAS, S/O. VARKEY, NAMPUDAKATH HOUSE, THALAPPALAM KARA, MOONNILAVU VILLAGE, MEENACHIL TALUK.
BY ADVOCATE SHRI A.K.ALEX
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1. SEBASTIAN, S/O.MATHAI, MATTATHIL HOUSE, NOW RESIDING AT MUNDAKKAYAM VILLAGE, KANJIRAPPALY TALUK, PURATHANAM POST, KOTTAYAM DISTRICT.
2. N.V. JOSEPH, S/O. VARKEY, NAMPUDAKATH HOUSE, THALAPPALAM KARA, MOONNILAVU VILLAGE.
3. MATHEW JOSEPH, S/O. JOSEPH, MOOKKANTHOTTATHIL HOUSE, THALAPPALAM KARA, MOONNILAVU VILLAGE,
R.S.A. No.392 of 2012
4. GEORGE JOSEPH, NAMPUDKATH HOUSE. MOONNILAVU VILLAGE.
5. JAMES JOSEPH, S/O.JOSEPH, PARAYAN KUZHIYIL HOUSE, EDAMARUKU KARA, MELUKAVU VILLAGE.
5. MOONNILAVU SERVICE CO-OPERATIVE BANK LTD., NO.163, REPRESENTED BY ITS SECRETARY.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
==================================== R.S.A. No.392 of 2012
==================================== Dated this the 06th June, 2012
J U D G M E N T
Against concurrent verdict, plaintiff has come up in appeal. He filed O.S. No.105 of 2007 in the court of learned Munsiff, Erattupetta for re-conveyance of the suit property after holding that sale deed No.1968/1997 executed by him in favour of the first respondent is invalid, being a security for the due repayment of a loan. Appellant claimed that the suit property belonged to his deceased parents and he got right over it as per partition deed No.969 of 1970 and release deed No.95 of 1993. He claimed that he borrowed Rs.1,00,000/- from the first respondent and executed sale deed No.1968/1997 (a copy of which is Ext.A2) as security on the agreement that on repayment of the amount the property will be re-conveyed to him. He claimed that he continues to be in possession and enjoyment of the property notwithstanding the said assignment deed. Hence the suit.
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as security for repayment of any loan. He claimed that he assigned portions of the suit property to the additional defendants as per Ext.B31 to B33 and 36.
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and those suits were dismissed for default. While so, the first respondent filed O.S. No.45 of 2003 against the appellant for his eviction. According to the appellant, there was a mediation in the meantime, first respondent agreed to receive the balance amount due to him and execute the re-conveyance and accordingly that suit was withdrawn. But there is no reliable evidence brought before the court to show that O.S. No.45 of 2003 was withdrawn on any such understanding involving the first respondent. As learned counsel submits, O.S. No.45 of 2003 was dismissed for non-payment of the balance court fee.
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appellant filed appeal against that judgment and decree but it was dismissed as time barred. Learned counsel submits that a Second Appeal preferred against the judgment and decree in the first appeal was also dismissed as time barred.
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found either, that first respondent is a bona fide purchaser of the property as per document No.1968/1997 or that pursuant to that document first respondent is in possession and enjoyment of the property. Those decisions can be taken as an item of evidence in favour of the first respondent, if not as constituting res judicata so far as the present suit is concerned.
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mediated the dispute between the appellant and first respondent. He is an identifying witness in the impugned assignment deed but he was not examined. Exhibit A1 is an extract from the bank obtained by the appellant to show that on 16.08.1997 he had remitted Rs.83,616/- towards loan on the security of the said document. But Ext.A2, comes thereafter. Exhibit A6 is the residential certificate and Ext.A7 is the revenue recovery notice dated 09.07.2002 issued to the appellant. Exhibit A8 series are the building tax receipts.
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substantial question of law involved in this appeal requiring a decision by this Court.
Second Appeal is dismissed.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv
3 issues framed by the court
Whether the second appeal raises a substantial question of law requiring decision by the Court on the validity of the assignment deed as security for a loan.
Whether the lower courts erred in finding that the assignment deed was executed for a valid sale and not as a security for a loan despite the appellant claiming possession.
Whether the decisions in prior litigations operate as res judicata or can be treated as judicial recognition of facts regarding the respondent's possession.
N.V. THOMAS
SEBASTIAN
THOMAS P.JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
