IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 RSA.No. 1213 of 2009() ---------------------- AS.15/2008 of SUB COURT,ALAPPUZHA OS.770/2005 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANT(S)/APPELLANTS/PLAINTIFF ---------------------------------------- 1. ANIYAMMA @ ANIAMMA,KOLLANTHARA HOUSE, CHAMPAKULAM VILLAGE,THEKKEKARA.P.O,KUTTANAD. 2. JACOB ABRAHAM,KOLLANTHARA HOUSE, CHAMPAKULAM VILLAGE,THEKKEKARA.P.O, KUTTANAD. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S)/RESPONDENTS/DEFENDANTS ------------------------- 1. SAJI THOMAS,S/O.THOMAS,KADAMTHOTTU HOUSE PERUNNA KIZHAKKEMURI,PERUNNA.P.O, CHANGANASSERY VILLAGE. 2. JACOB KURIAN,NELLIKUNNAM,NEAR Y.M.C.A, ALAPPUZHA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1213 of 2009 -------------------------------------- Dated this the 1st day of February, 2010. JUDGMENT Appellants and respondent No.2 are legal representatives of late K.K.Chacko. According to the appellants the late K.K.Chacko had borrowed certain amount from respondent No.1 and executed sale deed No.3276 of 1999 dated 12.11.1999 in favour of respondent No.1 as security for repayment of loan amount on condition of reconveyance of property on payment of the said amount. Property continued to be in the possession of the said K.K.Chacko. While so respondent No.1 got an exparte decree for eviction against respondent No.2 in O.S.No.472 of 2002. Appellants learnt that respondent No.2 had executed a rent deed in favour of respondent No.1 which according to the appellants is fraudulent. Appellants wanted a declaration that decree obtained in O.S.No.472 of 2002 is fraudulently obtained and for injunction against their eviction from the building situated in the suit property. Respondent No.2 did not contest the suit. Respondent No.1/defendant No.1 contended that he purchased the suit property as per sale deed No.3276 of 1999 and from then onwards he is in possession and enjoyment of the property. While so on 18.11.1999 respondent No.2 took the building in the suit property for rent for eleven months. For eviction of respondent No.2 he has filed O.S.No.472 of 2002 and obtained a decree. He denied that there was any fraud in obtaining rent deed or decree in O.S.No.472 of 2002. Appellant No.2/plaintiff No.2 gave evidence as PW1 on RSA No.1213/2009 2 behalf of appellants/plaintiffs and proved Exts.A1, A4 and A5. Exts.A2, A3 and A6 marked are photocopy of the documents which, it is seen from the judgment of the trial court that were objected from being brought in evidence and the objection was upheld. Trial court dismissed the suit. That was confirmed by first appellate court and hence the Second Appeal urging by way of substantial question of law whether courts below erred in framing the issue whether appellants who were not parties to the earlier suit are claiming under respondent No.2 and whether they are bound by the decree in O.S.No.472 of 2002. The further question raised is whether trial court was justified in framing an issue regarding reconveyance of property as claimed by the appellants. It is contended by the learned counsel for appellants that finding of courts below are erroneous and cannot be sustained and that under the cover of decree obtained by respondent No.1 appellants cannot be evicted. 2. Suit as laid is one for declaration that decree in O.S.No.472 of 2002 is fraudulently obtained and is not binding on appellants. Though it is alleged in the plaint that late K.K.Chacko had executed sale deed No.3276 of 1999 in favour of respondent No.1 merely as security for repayment of loan it is pertinent to note that no declaration has been prayed for regarding that character of the said sale deed. Challenge is only to the decree in O.S.No.472 of 2002 obtained by respondent No.1 against respondent No.2. Appellants are not RSA No.1213/2009 3 disputing that there was a rental arrangement between respondent Nos.1 and 2 though according to the appellants that is a fraudulent transaction. When an assessment or decree is sought to be assailed on the ground of fraud, a high degree of evidence is required and such evidence must be something beyond reasonable doubt. [See Vamakshi Renuka v. Bhargavi Meenakshi (1994 (1) KLT 306) and Gopalakrishnan, M.K. and others v. Rajamma, M.K. and others (2006(3) ILR Kerala 524)]. In this case evidence attempted regarding alleged fraud is through PW1/appellant No.2 but it is seen from judgments under challenge that PW1 had no direct information about the transaction. If that be so, challenge to decree in O.S.No.472 of 2002 has to fail. I stated that no relief is prayed with respect to sale deed No.3276 of 1999 executed by late K.K.Chacko. Contention is that there was an agreement between respondent No.1 and K.K.Chacko for reconveyance of property. That means that it is not disputed that sale deed was executed in favour of respondent No.1. Courts below have stated that there is no evidence of any such agreement for reconveyance of property. It is conceded that late K.K.Chacko died in the year 2001 and until then he did not challenge validity of sale deed No.3276 of 1999. Appellants should have knowledge about that sale deed atleast in the year 2005. They have admittedly not initiated any RSA No.1213/2009 4 proceeding within the period of limitation. I have gone through judgments under challenge and I do not find any substantial question of law arising for a decision in the Second Appeal. Accordingly, Second Appeal is dismissed in limine. I.A.No.2771 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks