IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 RSA.No. 1138 of 2009() ---------------------------------- AS.167/2006 of I ADDL. DISTRICT COURT, KOLLAM OS.20/2002 of MUNSIFF MAGISTRATE COURT, PARAVOOR .................... APPELLANT/RESPONDENT/PLAINTIFF -------------------------------------------------------- SUBHASHANAN PILLAI, S/O.K. KUNJAN PILLAI, PRESENTLY RESIDING AT SATHI NIVAS, ADICHANALLOOR. P.O, KOLLAM. BY ADV. SRI.B.S.SWATHY KUMAR, SMT.P.A.ANITHA. RESPONDENTS/APPELLANTS/DEFENDANTS ------------------------------------------------------------------ 1. ABBAS, ATHULLIA HOUSE, CHIRAYINKEEZHU, THIRUVANANTHAPURAM. 2. LABOODA, -DO- -DO- 3. HABEES, -DO- -DO- 4. SINOBA, -DO- -DO-. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.1138 of 2009 --------------------------------------- JUDGMENT Plaintiff in O.S.No.20/2002 on the file of Munsiff-Magistrate Court, Paravoor filed this appeal challenging the decision of the first appellate court in A.S.No.167/2006, where under, the decree granted by the learned Munsiff Magistrate was reversed and the suit was dismissed. The suit was instituted for realisation of Rs.60,262.55 contending that on 4.2.1999, respondents approached the appellant and borrowed Rs.75,000/- agreeing to repay the same jointly and severally and subsequently, when repayments were made, entries were made in Exhibit A1 book and only Rs.55,300/- was paid towards the principal and the balance, including interest, of Rs.60,262.55 is to be paid. 2. Respondents filed a written statement denying the very transaction. It is contended that they did not receive any amount and did not agree to repay any amount and did not pay any amount and appellant is not entitled to the decree sought for. It was contended that defendants knew the father-in-law of the appellant through a PWD contract work. Husband of the fourth RSA 1138/09 2 respondent died in 1997. He was the owner of the tempo KL- 01/C 8652. It was alienated to Raghavan Pillai, father-in-law of the appellant. The best friend of Raghavan Pillai Abdul Salam alienated his car to fourth defendant for Rs.1,75,000/- and the balance amount of Rs.75,000/- was paid through Raghavan Pillai in instalments and the entire amount was paid. When Raghavan Pillai accepted that amount, it was endorsed in a book and appellant is not entitled to the decree sought for. 3. Learned Munsiff, on the evidence of PW1, DW1 and Exhibits A1 to A4 and B1 and B2, granted a decree in favour of the appellant finding that appellant established the transaction. Respondents challenged the judgment and decree before Additional District Court, Kollam in A.S.No.167/2006. Learned Additional District Judge, on re-appreciation of evidence, found that the transaction was denied by the respondents and Exhibit A1 was also disputed and there is only oath against oath. It was found that even, according to the appellant, mediators had intervened, but no mediator was examined and on re- appreciation of evidence, it was found that case of the appellant cannot be true and accepted the case of the respondents and RSA 1138/09 3 dismissed the suit reversing the decree granted by the trial court. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant was heard. 5. Argument of the learned counsel is that when the trial court, which had the opportunity to note the demeanour of the witnesses, appreciated the evidence and accepted the case of the appellant, first appellate court should not have reversed the findings. It was argued that on the evidence of PWs 1 and 2, it is clear that out of Rs.75,000/- borrowed by the respondents, only Rs.55,000/- was repaid and balance was payable and in such circumstances, the decree granted by the trial court is to be restored. 6. Appellant would allege that Rs.75,000/- was paid to the respondents on 4.2.1999. Respondents denied the factum of borrowal. Though trial court accepted the evidence of PW1 and granted a decree based on Exhibit A1, first appellate court found that though Exhibit A1 was relied on, it does not contain any endorsement by the respondents for receipt of Rs.75,000/- on 4.2.1999 as claimed. Learned Additional District Judge found that there is only oath against oath. It was also found that in RSA 1138/09 4 spite of the contention of the appellant that mediators had intervened and on mediation payment was made, none was examined. It is, based on re-appreciation of evidence, a factual finding was rendered that appellant failed to prove that respondents borrowed any amount from him. That factual finding cannot be interfered in the second appeal as it cannot be said that appreciation of evidence was perverse. As no substantial question of law is involved, appeal is dismissed. 3rd March, 2011 (M.Sasidharan Nambiar, Judge) tkv