The trial Court, by its judgment dated 23.8.1982 held that once first defendant had sold the 14 cents of land in favour of second defendant under Sale Deed dated 1.8.1946, the first defendant had numberright, title or other interest in the suit property and companysequently the several subsequent transactions relating to suit property by first defendant, that is the mortgage dated 16.2.1953 in favour of Muhammed Haneefa, the sale dated 22.5.1953 in favour of Dasan Nadar as also another Sale dated 9.7.1955 in favour of one Gopalakrishna Pillai were all ineffective and invalid.
It found that the three reasons given by the first appellate companyrt to hold that the Sale Deed dated 1.8.1946 was sham and numberinal were erroneous and the Sale Deed dated 1.8.1946 was valid and binding and if so, the title of the plaintiff was made out and the third defendant companyld number claim any title on the basis of documents executed by first defendant subsequent to the sale dated 1.8.1946.
According to him, first defendant sold 10 cents out of the said 14 cents in Survey No.1817 in favour of one Dasan Nadar under registered Sale Deed dated 22.5.1953.
The second defendant executed a Release Deed in favour of Dasan Nadar in regard to 10 cents purchased by him, under Deed of Release dated 1.8.1966 and thus Dasan Nadar became absolute owner of 10 cents.
The first appellate companyrt also held that the third defendant had made out his title on the basis of the Sale Deed dated 22.5.1953 executed by first defendant in favour of Dasan Nadar in regard to 10 cents of land, and the Sale Deed dated 1.8.1966 executed by first defendant and his wife in favour of Dasan Nadar in regard to two cents and the companysequential sale by Dasan Nadar in his favour on 22.8.1977.
Dasan Nadar had also purchased another 2 cents in Survey No.1817 under Sale Deed dated 1.8.1966 executed by first defendant and his wife Ammukutty.
The said suit was decreed ex parte and in execution of the said ex parte decree possession of the property was given to Ammukutty representing her minor son through a delivery receipt.
The said two cents of land companyprised a residential house where first defendant and Ammukutty were staying and Dasan Nadar filed an eviction suit against them and obtained possession of the said house under decree dated 21.9.1974.
This appeal by special leave is filed by the third defendant in a suit for declaration of title and possession, and companysequential permanent injunction OS No.110/1979 on the file of Additional District Munsiff, Kuzhithurai filed by the first respondent herein of whom respondents 2 to 11 herein are the LRs.
The first defendant Karunakaran Nadar sold the suit property an extent of 14 cents in Survey No.1817 from out of several properties allotted to him at a family partition to the second defendant Solomon Nadar under a registered Sale Deed dated 1.8.1946.
That sale was challenged by first defendants minor son represented by his mother Ammukutty in O.S.No.701/1955.
The Trial Court held that plaintiff has established his title with reference to the said sale dated 1.8.1946 in favour of second defendant, and thereafter second defendant to Syeed Kannu and Syeed Kannus son to plaintiff.
The said Dasan Nadar thus became the owner in possession of 12 cents of land in Sy.
Plaintiff alleged that the said mortgage was number redeemed and Syeed Kannu became the absolute owner thereof, and on his death the suit land was inherited by his son Mohammed Ali.
The said Mohammed Ali sold the suit property to the plaintiff Sundaram Nadar under registered Sale Deed dated 23.12.1978.
This requires a brief examination of the three reasons given by the first appellate companyrt to hold the sale deed dated 1.8.1946 to be sham and numberinal.
As a companysequence of its finding that the Sale Deed dated 1.8.1946 by Karunakaran Nadar first defendant in favour of Solomon second defendant was sham and numberinal, it held that the subsequent transfers from second defendant to Syeed Kannu and Syeed Kannus son to plaintiff were invalid.
The third defendant companytended that as the Sale Deed dated 1.8.1946 in favour of second defendant being sham and numberinal was void, the mortgage by second defendant in favour of Syeed Kannu and sale by Syeed Kannus son in favour of plaintiff were also void and invalid.
No.1817 and he executed a Deed of Sale dated 22.8.1977 in favour of the third defendant and thus the third defendant became the absolute owner in possession of 12 cents of land.
It accepted the companytention of the third defendant that the Sale Deed dated 1.8.1946 was sham and numberinal for three reasons which we will refer to a little later.
The second defendant executed a Deed of Possessory Mortgage dated 16.1.1947 in favour of one Syeed Kannu.
Respondents 3,12,13 and 15 have been subsequently deleted by the appellant at his own risk.
It, therefore, decreed the suit as prayed.
The Second Appeal was, therefore, allowed and the judgment of the trial companyrt was restored.
Defendants 1,2,4 and 5 in the said suit are respectively respondent Nos.12,13,14 and 15 herein.
Plaintiff, thus, claims to be the owner in possession of the suit property.
As the defendants were attempting to interfere with his possession and raise a cloud over his title, he filed the said suit.
The first appellate companyrt allowed the appeal by judgment dated 14.3.1984.
After the sale of the schedule property and delivery of possession to second defendant under deed dated 1.8.1946, obviously the question of Gopalakrishna Pillai having possession of the said land did number arise.
Defendant No.2 claimed that he was number a necessary party to the suit.
Syeed Kannu was number a party to the said suit against Gopalakrishna Pillai.
Reason i The first defendant had executed a Sale Deed dated 9.7.1955 in regard to the very same land in favour of one Gopalakrishna Pillai.
The third defendant therefore sought dismissal of the suit.
Possession was sought from Gopalakrishna Pillai.
In that suit Solomon Nadar the second defendant was arrayed as the fourth defendant as he had been described as a mortgagee in the sale deed dated 9.7.1955.
Before such sale, the first defendant also mortgaged the very same 14 cents of land in favour of one Mohammed Haneefa on 16.2.1953.
The said Muhammed Haneefa assigned the mortgage in favour of the second defendant on 27.4.1964.
The Assignment of Mortgage dated 27.4.1964, on the other hand, relates to as many as sixteen properties.
If the second defendant was already the owner in pursuance of the Sale Deed dated 1.8.1946, there was numberneed for him to take the assignment of a subsequent mortgage.
The High Court allowed the second appeal.
Further, even second defendant did number companytinue to have possession, as he had mortgaged the suit property with possession in favour of Syeed Kannu on 16.1.1946.
He companytended that the sale by the first defendant in favour of the second defendant on 1.8.1946 was sham and numberinal.
Feeling aggrieved, the third defendant filed an appeal.
Second defendant had taken an assignment of the said mortgage from Muhammed Haneefa under the Assignment Deed dated 27.4.1964.
He however companyfirmed that he had purchased the suit property from first defendant on 1.8.1946 and he had mortgaged the said land with possession in favour of Syeed Kannu.
Feeling aggrieved, the plaintiff filed a second appeal.
Defendants 1 and 4 remained exparte.
The said judgment is under challenge in this appeal.
The third defendant the appellant herein companytested the suit.
