IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 RSA.No. 558 of 2011() --------------------- AS.137/2005 of ADDL. DISTRICT COURT (ADHOC), KOLLAM OS.1104/2001 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANTS/APPELLANTS/PLAINTIFFS ------------------------------------------------------------ 1. DR.VIJAYAN, AGED 59 YEARS, S/O.KRISHNANACHARI, ALAZHIKATHU VEEDU, PAMKONAM CHERRY, KANNANALLOOR, THRIKKOVILVATTOM VILLAGE, KOLLAM TALUK. 2. RADHAMANI, AGED 49 YEARS, W/O.DR.VIJAYAN, ALAZHIKATHU VEEDU, PAMKONAM CHERRY, KANNANALLOOR, THRIKKOVILVATTOM VILLAGE, KOLLAM TALUK. BY ADV. SRI.T.GOPALAKRISHNAN RESPONDENT(S): RESPONDENTS/DEFENDANTS --------------------------------------------------------------------- 1. C.P.VIMALAKUMARI AMMA, 51 YEARS, D/O.PARUKUTTY AMMA, VIMALA MANDIRAM, EROOR CHERRY, EROOR P.O., EROOR VILLAGE, KOLLAM TALUK - 691312. 2. SASIDHARAN PILLAI, AGED 57 YEARS, S/O.GOPALA PILLAI, 'AISWARYA', PERETHU CHERRY, THAZHUTHALA VILLAGE, THAZHUTHALA P.O., KOLLAM TALUK - 691001. ADV. SRI.P.R.PREMACHANDREN FOR R1 SMT.T.S.MAYA (THIYADIL) FOR R1 SRI.S.VASUDEVAN FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 558 OF 2011 =========================== Dated this the 28th day of October,2011 JUDGMENT Plaintiffs in O.S.1104/2001 on the file of Additional Munsiff Court, Kollam are the appellants. Respondents are the defendants. Suit was instituted to set aside Ext.A2 and A3 sale deeds executed respectively on 2.8.1997 and 15.5.1998. Plaint schedule property originally belonged to the mother of the second appellant under Ext.A1 settlement deed. Under Ext.A1 settlement deed, the mother transferred the property in favour of the appellants. Subsequently on 2.8.1997 appellants executed Ext.A2 sale deed by which the property was transferred in favour of the first respondent. First respondent on 15.5.1998 under Ext.A3 transferred a portion of the property to the second respondent. The case of the appellants RSA 558/2011 2 is that brother of the second appellant incurred financial liability in his business and therefore on receiving Rs.26,000/- from the first respondent plaint schedule property was sold in favour of the first respondent on the agreement that first respondent, will reconvey the property to the plaintiffs on receipt of the amount with interest. It was contended that though sale deed was executed, possession was not handed over to the first respondent and later first respondent created Ext.A3 in favour of the second respondent and it is only a sham document which was not acted upon. It was contended that appellants are prepared to pay the amount due with interest to the first respondent and therefore Exts.A2 and A3 are to be set aside. First respondent resisted the suit contending that Ext.A2 sale deed was executed after receipt of valuable sale consideration and there was no agreement to reconvey the property and first respondent later sold a portion of the property in favour of the second respondent under RSA 558/2011 3 Ext.A3 sale deed and it is not a sham document and in any case the suit is barred by time. Second respondent also filed a written statement reiterating the same contentions. 2. Learned Munsiff on the evidence found that when Ext.A2 sale deed was executed on 2.8.1997, the suit was instituted only on 30.11.2001 three years after the execution of Ext.A2 and so the suit is barred by time. Suit was dismissed. Appellants challenged the decree and judgment before Additional District Court, Kollam in A.S.137/2005. Learned Additional District Judge on reappreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellants was heard. 4. The argument of the learned counsel is that though Ext.A2 was executed as a sale deed, it was brought to the knowledge of the appellants that it is a sale deed only later and within three years RSA 558/2011 4 from that date the suit is filed and therefore findings of the courts below that suit is barred by time is not sustainable. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. First appellant, who is one of the executants of Ext.A2 sale deed and who is also one of the attesting witness to Ext.A3 sale deed, is a doctor. It cannot be believed that he was not aware of the contents of Ext.A2 sale deed when it was executed. Moreover the very case is that Ext.A2 was executed on the assurance that on payment of the money, the property will be reconveyed. Hence appellants cannot be heard to contend that they were unaware of the nature of Ext.A2 when it was executed. Ext.A2 sale deed was admittedly executed on 2.8.1997. The suit was filed only on 30.11.2001 after three years from the date of execution of the document. As rightly found by the courts below, the suit is barred by time. RSA 558/2011 5 The appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006