Decided on March 02,1962



- (1.) This Second Appeal is by the plaintiff who sued for a declaration that an assignment executed by him in favour of the 1st defendant, who is none other than his own younger brother, was sham and did not come to effect.
(2.) The plaintiff was holding the suit property as a lessee.. In October 1942, the landlord served on him Ext. A-7 notice to quit, to which he sent the reply Ext. A8 denying the landlords right to resume the land under the provisions of the Malabar Tenancy Act. Apprehending that the landlord might institute a suit for his eviction the plaintiff, on February 9, 1943, executed Ext. A-1 assignment of his tenancy in the name of the 1st defendant, who was then in the Army. The assignment was designed to secure the benefit of the Indian Soldiers Litigation Act, to delay any attempt by the landlord to resume the land through a court of law. As apprehended the landlord did sue for the plaintiffs eviction, in O.S. No. 345 of 1943 on the file of the Munsiff, Koothuparamba, Ext. A-9 being the plaint therein, claiming the land for his bona fide cultivation. The assignment under Ext. A-1 was pressed into service in that suit which was consequently stayed till 1947. Meanwhile other enactments for tenants protection came to be in succession and therefore the suit had a chequered career. In 1954 the brothers fell out and on August 16, 1954, the 1st defendant filed an additional written statement, Ext. XIV, expressing his willingness to surrender the property to the landlord. The plaintiff, who was thrown off his chord by this unexpected event, instituted the present suit on August 25,1954, for a declaration that the assignment which he had executed in favour of the 1st defendant was a sham document not intended to be put nor come to effect and that the 1st defendant had no interest in the suit property. In answer thereto, the 1st defendant asserted the assignment valid and operative and himself the real tenant of the property. The Munsiff accepted validity of the assignment and dismissed the suit, observing also that the plaintiff is not entitled to any relief against a fraudulent conveyance made by himself. On appeal, the District Judge felt no hesitation to hold that Ext. A-1 is sham and was not intended to be acted upon, but observing that plaintiff has succeeded so far in staying the suit, firstly under the Soldiers Litigation Act and later on by other stay Acts, the latter of which were made available to him only on account of his initial move. I am inclined to hold that plaintiff intended fraud and that what was intended by him was effected by him to a substantial extent, if not fully dismissed the appeal. The plaintiff has therefore come up in Second Appeal.
(3.) The Supreme Court has pointed out in Deity Pattabhiramaswamy v. Hanymayya (AIR 1959 S.C. 57) that the High Court has no jurisdiction to interfere in Second Appeal with a finding of fact entered by the first appellate court on an appreciation of the evidence on record, even if it be grossly erroneous. The findings that Ext. A-1 was a sham deed, and that it was designed to delay eviction of the plaintiff by the landlord which object was carried out substantially have to be accepted and this Second Appeal decided on that basis only. The question then is whether the plaintiff is debarred by his protraction of the landlords suit for his eviction from asserting his real title to the tenancy in this suit and securing the declaration sought for.;

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