JUDGMENT : Challenging the concurrent findings entered by the I Additional Munsiff's Court, Thiruvananthapuram in O.S. No. 1390 of 2004 followed by those of the III Additional District Court, Thiruvananthapuram in A.S. No. 200 of 2006, the plaintiff in O.S. No. 1390/2004 has come with this second appeal. The suit is one for declaration, perpetual injunction and mandatory injunction. Through the relief of declaration sought for, the plaintiff wanted to get Exts.A1 and A2 sale deeds declared as null and void, and also that the same are not binding on the plaintiff. Through the mandatory injunction sought for, the plaintiff wanted to get re-conveyance of the plaint schedule property from the defendants. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents. 3. The plaintiff wanted to go abroad, for which he was in dire need of money. He approached the first defendant money lender, and according to the plaintiff, he initially borrowed an amount of Rs. 60,000/- for which, he along with his mother had to execute Ext.A1 sale deed in respect of the four cents of property situated at Vattiyurkavu, Thiruvananthapuram, on condition that the property would be re-conveyed on the payment of the principal amount and the interest. Again, the plaintiff wanted Rs. 30,000/- more. That amount was also willingly lent by the first defendant for which the plaintiff and his mother had to execute Ext.A2 sale deed in respect of the remaining four more cents of property which is also lying contiguously with the four cents of property covered by Ext.A1. The residential building of the plaintiff is also situated in the property covered by Ext.A2. 4. It was specifically agreed to between the parties that on payment of the principal amount and its interest, the entire properties would be re-conveyed. According to the plaintiff, he had paid a total amount of Rs. 1,15,000/- through Demand Drafts and another amount of Rs. 1,05,000/- in cash. Accordingly, the entire amount was repaid. Even though the first defendant has agreed to re-convey the property, he retracted from his stand and clandestinely made arrangements with the 3rd defendant. The first defendant executed a power of attorney in favour of his brother-in-law who is the 2nd defendant in respect of the properties covered by Exts.A1 and A2. Accordingly, the entire amount was repaid. Even though the first defendant has agreed to re-convey the property, he retracted from his stand and clandestinely made arrangements with the 3rd defendant. The first defendant executed a power of attorney in favour of his brother-in-law who is the 2nd defendant in respect of the properties covered by Exts.A1 and A2. The 2nd defendant swiftly executed Ext.B1 sale deed in respect of the property in favour of the 3rd defendant on the strength of the said power of attorney. 5. The first defendant contended that Exts.A1 and A2 sale deeds were obtained by him as sale deeds and not by way of security. At the same time, he admitted the money transactions between him and the plaintiff. According to the first defendant, through two instalments, the plaintiff had borrowed a total amount of Rs. 4,00,000/- from him. At first the plaintiff borrowed an amount of Rs. 2,00,000/- as the first instalment, and the plaintiff along with his mother, executed Ext.A1 in favour of the first defendant. It has come out from the pleadings in the written statement that the first defendant had agreed that the property would be re-conveyed on the payment of the principal amount and its interest. Such an arrangement is, in fact, admitted in the written statement of the first defendant. 6. According to the first defendant, when an amount of Rs. 2,00,000/- was borrowed by the plaintiff from the first defendant as the second instalment, Ext.A2 sale deed was obtained in favour of the four cents of property lying contiguously with the four cents of property covered by Ext.A1. The very same arrangement was once again made between the parties and according to the first defendant, he had unwillingly agreed that the properties would be re-conveyed on the payment of the principal amount and interest. According to the first defendant, the amounts were not repaid. An amount of Rs. 1,15,000/- alone was repaid and the balance amount was not repaid in spite of repeated demands and therefore, he sold the property to the 3rd defendant. 7. The 3rd defendant contended that he purchased the property through Ext.B1 from the first defendant through the 2nd defendant, who is the power of attorney of the first defendant, and thereafter, he has been residing in the building situated in the property. 7. The 3rd defendant contended that he purchased the property through Ext.B1 from the first defendant through the 2nd defendant, who is the power of attorney of the first defendant, and thereafter, he has been residing in the building situated in the property. According to him, he is in absolute possession and enjoyment of the property and that he had never come to know about the money transactions between the plaintiff and the first defendant. It is also contended that the suit is barred by limitation. 8. The plaintiff has produced and proved Ext.A3 series which clearly show that an amount of Rs. 1,15,000/- was paid by the plaintiff to the first defendant through Demand Drafts. According to PW1, who is the plaintiff, he used to send money from Riyad, K.S.A. to his wife through Bank, and his wife along with his brother-in-law took those amounts to the first defendant and paid it. Exts.A3, A3(a) and A3(b) are the acknowledgments issued by the first defendant to the wife of the plaintiff for the receipt of those Demand Drafts. Ext.A3 series are admittedly in the handwriting of the first defendant, which contains his signature in Malayalam. The plaintiff has produced Ext.A9 letter allegedly issued by the first defendant to the plaintiff to his Riyad address. Both the courts below have not considered the contents of Ext.A9 by stating that it does not contain the signature of the first defendant. 9. The contents of Ext.A9 are very important, in case it is proved. The plaintiff ought to have subjected Ext.A9 letter to the examination of a handwriting expert. Nothing has been stated in the written statement filed by the first defendant regarding Ext.A9, may be because of the fact that it was not produced along with the plaint. 10. Ext.A21 is also an important document which could have, in a way, substantiated the case of the plaintiff. Ext.A21 is a letter issued by the first defendant to the plaintiff thereby demanding an amount of Rs. 50,000/-. The contents of the letter clearly reveal the threatening mood from the part of the first defendant in case of non-payment. As far as Ext.A9 is concerned, it has been stated in it that on payment of an amount of Rs. 5,000/-, the entire transactions between the plaintiff and the first defendant would come to an end. 50,000/-. The contents of the letter clearly reveal the threatening mood from the part of the first defendant in case of non-payment. As far as Ext.A9 is concerned, it has been stated in it that on payment of an amount of Rs. 5,000/-, the entire transactions between the plaintiff and the first defendant would come to an end. In Ext.A9 it was informed to the plaintiff that the plaintiff had to spent an amount of Rs. 15,000/- for obtaining the re-conveyance as expenses by way of stamp duty, registration charges etc. It was also informed to the plaintiff that the property was worth Rs. 30,00,000/-. If Ext.A9 is proved to be in the handwriting of the first defendant, it could be seen that the first defendant wanted to sell the property for and on behalf of the plaintiff, provided, a broker fee of 3% was paid. Through Ext.A9 it was agreed that the property would be re-conveyed in favour of the plaintiff and that the first defendant would never cheat or betray the plaintiff. 11. The courts below had not acted upon the contents of Ext.A9 by stating that it does not contain the signature of the first defendant. No date is also there. At the same time, the plaintiff has produced the said letter along with the envelop in which he had received the said letter. It has to be noted that the name of the first defendant is written at the bottom of Ext.A9 in Malayalam. It has to be noted from Ext.A3 series that the first defendant is in the habit of affixing his signature by writing his name in Malayalam and by putting a line beneath it. In such case, if Ext.A9 is proved to be in the handwriting of the first defendant, the first defendant has to explain the circumstance in which he had issued Ext.A9 letter to the plaintiff. 12. In such case, if Ext.A9 is proved to be in the handwriting of the first defendant, the first defendant has to explain the circumstance in which he had issued Ext.A9 letter to the plaintiff. 12. Even without the aid of Exts.A9 and A21, the courts below ought to have noted that even though the nomenclatures of Exts.A1 and A2 are Sale Deeds, in the light of the clear admissions in the written statement of the first defendant regarding the arrangement between him and the plaintiff regarding the re-conveyance on the repayment of the principal amount with its interest, Exts.A1 and A2 are not intended to be Sale Deeds, whereas, the same were executed as documents of security for securing repayment of the amounts borrowed. Even the period within which such repayment has to be effected has not been stipulated in those admissions in the written statement of the first defendant. The third defendant has no case that the plaintiff has colluded with the first defendant. During evidence also, the third defendant had no such case. Therefore, the fact that Exts.A1 and A2 were not intended to be Sale Deeds, and the same were executed merely as documents of security for securing repayment of the amounts borrowed, stands proved. 13. The first defendant, even though was present in court when DW1 was examined, had not chosen to mount the box. The attitude of the first defendant is clear in the sense that he, instead of executing the sale deed by himself, had chosen to execute the power of attorney in favour of his brother-in-law, who is the 2nd defendant, and in turn the 2nd defendant executed Ext.B1 sale deed in favour of the 3rd defendant. The contents of Exts.A9 as well as A21 assume great importance as far as this case is concerned. It is evident that the first defendant was avoiding examination as a witness before the court. Especially when the third defendant has no case that the plaintiff has filed the suit in collusion with the first defendant, the said attitude of the first defendant clearly militates against the contentions of the first defendant as well as the 3rd defendant. 14. The courts below ought to have extended an opportunity to the plaintiff to get Ext.A9 as well as Ext.A21 examined by a handwriting expert. 14. The courts below ought to have extended an opportunity to the plaintiff to get Ext.A9 as well as Ext.A21 examined by a handwriting expert. When such an opportunity has not been extended to the plaintiff, this court is satisfied that the judgment and decree passed by the trial court as well as the lower appellate court, have resulted in substantial miscarriage of justice as far as the plaintiff is concerned. When the first defendant had not cared to mount the box, the courts below could have believed Exts.A9 and A21. In case the courts below were reluctant to act upon Ext.A9 because of want of signature, the courts below ought to have directed the plaintiff to get Ext.A9 examined by a handwriting expert. When that has not been done, this Court is of the view that the entire matter requires reconsideration by the trial court. In the result, this Second Appeal is allowed and the judgment and decree passed by the trial court as well as the lower appellate court are set aside. The suit is remitted to the trial court for fresh disposal in accordance with law. The courts below shall give an opportunity to the plaintiff to amend the plaint in case the plaintiff wants to amend the plaint, and in such case the defendants will get an opportunity to file additional written statements except to incorporate a new contention of collusion between the plaintiff and the first defendant. The trial court shall cause Ext.A9 as well as Ext.A21 examined by a handwriting expert. The court below shall make use of Ext.A3 series by way of admitted handwriting of the first defendant with the specimen handwriting if available, for the purpose of causing such examination of Exts.A9 and A21. Both the parties shall be permitted to adduce further evidence, if they wanted to. The parties shall appear before the trial court on 01.03.2017. All the interlocutory applications in this appeal are closed. The court fee shall be refunded as per Rules.