IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 RSA.No. 985 of 2011() --------------------- AS.371/2008 of DISTRICT COURT, PALAKKAD OS.4/2005 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/PLAINTIFF --------------------------------------- M.ASEENA,W/O.MOOSA,RESIDING AT ANAKUZHIKAD HOUSE,KADUKKANKUNNU AMSOM,DESOM, MALAMPUZHA VILLAGE,PALAKKAD TALUK, MALAMPUZHA P.O, 678 651. BY ADV. SRI.D.KRISHNA PRASAD SMT.O.K.SANTHA RESPONDENT(S): DEFENDANT ------------------------ 1. M.LEELAVATHI,W/O.RAJAMANI,LAKSHAM VEEDU, CHIRAKKAD,KADUKKANKUNNU AMSOM DESOM, MALAMPUZHA VILLAGE, PALAKKAD TALUK, MALAMPUZHA P.O, 678 651. 2. RAJAMANI,S/O.CHINNAN,LAKSHAM VEEDU, CHIRAKKAD,KADUKKANKUNNU AMSOM DESOM, MALAMPUZHA VILLAGE, PALAKKAD TALUK, MALAMPUZHA P.O, 678 651. 3. SURESH,S/O.GOPI,UTHRADAM HOUSE, NEAR FIRE STATION,PALAKKAD TALUK, PALAKKAD P.O, 678 001. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.985 of 2011 ............................................ DATED THIS THE 14th DAY OF OCTOBER, 2011 JUDGMENT Plaintiff in O.S.4 of 2005 on the file of Munsiff Court, Palakkad is the appellant. Respondents are the defendants. Suit was filed for a declaration that Ext.A7 registered assignment deed dated 15.10.2001 is invalid and never acted upon and to cancel the same and for a permanent prohibitory injunction. The plaint schedule property admittedly belonged to the appellant under Ext.A1 sale deed 2774 of 2000 of SRO, Olavakkode. Under Ext.A7 sale deed it was assigned in favour of the first respondent. The case of the appellant is that the property is not assigned in favour of the first respondent and though Ext.A7 was executed, it was never executed as a sale deed. It was alleged that respondents 1 to 3 are family friends of the appellant and because of the acquaintence appellant used to be a witness in the documents executed when respondents purchased property and appellant had obtained a loan from the bank and respondents were sureties to the transaction and they used to extend a RSA 985/2011 2 helping hand, when the appellant requires assistance and thus appellant reposed faith on them and misusing the trust reposed, they informed the appellant that they are intending to purchase a property and appellant was requested to be a witness and believing their words and without any suspicion, she went to the Sub Registrar's office from where respondents requested the appellant to affix her signature in the stamp papers as well as other papers before the Sub Registrar's office as well as at the office of the document writer and she affixed her signature on the belief that she is a witness to the document and later on 17.12.2004, respondents came to the plaint schedule property and contended that seven cents out of the property of the appellant belongs to them and showed them a xerox copy of a sale deed and attempted to fence the seven cents from the remaining property of the appellant. When appellant and her husband perused the xerox copy of the document, they realised that they were cheated and fraudulently respondents created the sale deed making the appellant believe that she is only a witness to the document. It is contended that she has not received the consideration and did not execute Ext.A7 with the intention to RSA 985/2011 3 assign the property and the property is worth Rs.50,000/- but the sale consideration is only Rs.3000/- and in such circumstances, appellant is entitled to the decree sought for. 2. Respondents resisted the suit contending that the allegations are false and the plaint schedule property belongs to the first respondent under Ext.A7 sale deed executed by the appellant and the document was not got executed as alleged and the respondents did not cheat or mis-represent the appellant and the value of the property is not Rs.50,000/- as claimed and the consideration shown in Ext.A7 is the proper consideration and appellant validly transferred her title to the first respondent and subsequently first respondent assigned her rights in favour of the third respondent who was subsequently impleaded as an additional third defendant, in the light of the contentions raised by respondents 1 and 2. Third respondent also filed a similar statement reiterating the contentions raised by respondents 1 and 2. 3. On the side of appellant, she was examined as PW1. Exts.A1 to A7 were also marked. On the side of respondents, DW1, the husband of first respondent was examined and Ext.B1, RSA 985/2011 4 the assignment deed executed by the first respondent in favour of third respondent was marked. The Commissioner, who was appointed, submitted Ext.C1 report and Ext.C1(a) plan. Learned Munsiff, on the evidence found that when the appellant admittedly executed Ext.A7 sale deed and it is contended that it is vitiated by fraud and mis-representation, the burden is on the appellant to establish the fraud and the mis-representation. Learned Munsiff found that it is clear from the evidence that appellant is not an illiterate lady or rustic villager who does not know the consequence of her actions and she purchased property having an extent of 53 cents including the plaint schedule property in December, 2000 and she was aware of the dealings and had also admittedly pledged the document and availed a loan from the bank and in such circumstances, her case that she was not aware that she was executing a sale deed from the Sub Registrar's office cannot be accepted. Learned Munsiff, on proper appreciation of evidence found that appellant failed to establish that Ext.A7 is vitiated by fraud or mis-representation. The suit was dismissed. Appellant challenged the decree and judgment before District Court, Palakkad in A.S.371 of 2008. RSA 985/2011 5 Learned District Judge on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that courts below did not properly appreciate the evidence. It was vehemently argued that when first respondent, the assignee under Ext.A7 did not get herself examined, there is no contra evidence to the evidence of PW1 and in such circumstances, courts below were not justified in not accepting the evidence of PW1. Learned counsel also argued that under Ext.A1, appellant obtained title to 53 cents of the property and what was transferred under Ext.A7 is only seven cents and that seven cents was not demarcated immediately after the execution of Ext.A7 and the respondents attempted to demarcate it at the time when they intended to transfer the property in favour of thrid respondent and then only appellant was aware that respondents 1 and 2 committed fraud and mis- representation and a sale deed was executed. It was argued that when even the original of Ext.A7 sale deed was not produced, courts below should have accepted the case of the appellant. RSA 985/2011 6 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The execution of Ext.A7 is admitted. Ext.A7 is a registered sale deed executed by the appellant whereunder seven cents viz, the plaint schedule property was assigned in favour of the first respondent for the consideration shown therein. When the appellant is contending that it is vitiated by fraud and mis-representation, the burden is heavily on the appellant to establish the case. The case of the appellant is that respondents 1 and 2 were having close acquaintance with the appellant and she had reposed faith on them and she used to be witness to the documents in respect of properties purchased by respondents 1 and 2. If that case is true, appellant should be aware of the role of an attesting witness. It is the case of the appellant that respondents 1 and 2 made her believe that they are purchasing a property and appellant is to be a witness to the document and took her to the office of the Sub Registrar and from there obtained her signature in stamp papers and other papers. If the appellant was an attesting witness earlier, she would definitely know the difference between affixing signature in a sale deed as an attesting witness and an RSA 985/2011 7 executant, especially when her evidence show that under Ext.A1, one year earlier to the execution of Ext.A7 sale deed, she purchased the property under Ext.A1. If that be the case, when it is not disputed that she had gone to the Sub Registrar's office and signed the document as executant and the document was registered, the Sub Registrar would definitely ask the appellant whether she executed the document and whether she understood contents of the sale deed and whether she received the consideration. Being familiar with the role of an executant as well as attesting witness it cannot be believed that appellant was not aware of the fact that she is executing Ext.A7 and was not affixing her signature as an attesting witness. In the light of the evidence on record, the factual finding of the courts below that appellant did not establish that Ext.A7 is vitiated by fraud and mis-representation is perfectly correct. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk