IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 RSA.No. 495 of 2010() ------------------------------- AS.162/2009 of SUB COURT, PERUMBAVOOR OS.17/2002 of MUNSIFF COURT, MUVATTUPUZHA .................... APPELLANTS/APPELLANTS/DEFENDANTS ------------------------------------------------------------- 1. BASHEER, S/O.ALIYAR, AGED 43 YEARS, ARYANKALAYIL HOUSE, KAVUMKARA KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK. 2. JALEENA, W/O.BASHEER, AGED 35 YEARS, ARYANKALAYIL HOUSE, KAVUMKARA KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.V.V.ASOKAN, SRI.K.S.SAJEEV KUMAR. RESPONDENT/RESPONDENT/PLAINTIFF ----------------------------------------------------------- ALIKUTTY, S/O.IBRAHIM, AGED 61 YEARS, THACHALAYIL HOUSE, KAVUMKARA KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.BHAVADASAN, J. ------------------------------------- RSA No.495 of 2010 ------------------------------------- Dated 15th June 2010 Judgment The defendants, who are the appellants before this court, suffered a decree at the hands of the Trial Court. Their appeal did not yield any result. The parties and facts are hereinafter referred to as they are available before the Trial Court. 2. The plaintiff laid the suit on the basis of Ext.A1 sale deed executed on 10.11.1998. The property originally belonged to one Amina Pilla, who had sold the same to the plaintiff as per the above said sale deed. The extent of property is 29 cents. The plaintiff submits, evensince then, he was in absolute possession of the suit property. In the year 2001, due to some unforeseen circumstances, his family had to shift from the plaint schedule property and on return, they found the defendants in possession of the property. The defendants have no right over the property. Therefore, to evict them, the suit was laid. RSA 495/10 2 3. The defendants resisted the suit. Their contention was that Ext.A1 sale deed is not supported by consideration and it was not executed with the free consent of Amina Pilla and therefore, it is vitiated by fraud and mala fides. It was also contended that the plaintiff had not obtained possession of the suit property in pursuance of Ext.A1 sale deed and he had not derived any right over the plaint schedule property by virtue of Ext.A1. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendant examined DW1 and had Exts.B1 to B10 marked. Exts.C1 and C1(a) commissioner's report and sketch were also marked. 5. The Trial Court, on an appreciation of the evidence on record, came to the conclusion that the plaintiff has succeeded in establishing his title and possession over the suit property and in the absence of any better evidence on the part of the defendants to show that they had a better right to remain in possession, decreed the suit. The lower Appellate Court confirmed the Judgment and decree of the Trial Court. RSA 495/10 3 6. The learned counsel for the appellant stressed before this Court that the courts below have not given sufficient significance and importance to Ext.B4 document, which would clearly show that Ext.A1 is a fraudulent document. Attention of this Court was also drawn to the boundaries mentioned in Ext.B4. Ext.B4 is a document executed subsequent to the execution of Ext.A1. The western boundary is shown as “............................................................”. It was pointed out that one of the boundaries is shown in the sale deed executed in favour of the defendants as property belonging to the vendor. This is the ground which is taken to assert the position that Ext.A1 document is vitiated by mala fides. 7. The courts below have considered this contention in detail and have come to the conclusion that, that by itself is insufficient to hold that Ext.A1 is a fraudulent document or executed under vitiating circumstances. The courts below also found that the plaintiff has succeeded in establishing his title over the suit property. There is no reason to disagree with the view taken by the courts below. As rightly pointed out by the courts below, merely because one of the RSA 495/10 4 boundaries is shown in the sale deed executed in favour of the defendants as property belonging to the vendor, that by itself is not sufficient to ignore the sale deed in favour of the plaintiff. That is too thin a piece of evidence to hold so. One must remember that the defendants have come forward with a contention that the sale deed is a fraudulent document etc. It is for the defendants to adduce the ingredients to establish his claim. They have to prove the allegation of fraud. No such attempt is seen taken in the suit except for the testimony of PW1, which was found insufficient by the courts below. This Second Appeal is without merits and it is liable to be dismissed. I do so. P.BHAVADASAN, JUDGE sta RSA 495/10 5