IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 RSA.No. 245 of 2005() --------------------- AS.28/2003 of SUB COURT, VADAKARA OS.71/2002 of MUNSIFF COURT, NADAPURAM .................... : APPELLANT/RESPONDENT/DEFENDANT/CROSS OBJECTOR: --------------------------------------------------------------- PATTARMADATHIL SHANTHA, D/O. KANNAN, KOLLAMKODE HOUSE, NARIPATTA AMSOM THINUR DESOM, VADAKARA, KOZHIKODE. BY ADV. SRI.R.PARTHASARATHY SMT.SEEMA PARTHASARATHY RESPONDENTS: APPALLANT/PLAINTIFF: -------------------------------------------- CHANDROTH THAZHEKUNIYIL ABDULLA, S/O. K. MAMMU, CHANDRATH THAZHAKUNIYIL HOUSE, CHOKLI AMSOM, MANAPRAM DESOM, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.P.NARAYANAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.489/2005 IN R.S.A.NO.245/2005 14.2.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 245 OF 2005 =========================== Dated this the 14th day of February, 2008 JUDGMENT Defendant in O.S.71/2002 on the file of Munsiff Court, Nadapuram is the appellant. Plaintiff is the respondent. Plaint schedule property admittedly originally belonged to the appellant. Under Ext.A1 registered sale deed dated 24.1.1998 appellant assigned plaint schedule property in favour of respondent. Respondent claims that from the date of execution of Ext.A1 he has been in possession and enjoyment of the property and appellant removed the northern boundary and attempted to interfere with his peaceful possession and enjoyment of the plaint schedule property. He instituted the suit for permanent prohibitory injunction. Appellant resisted the suit admitting execution of Ext.A1 but contending that it was not executed as a sale deed and instead was executed only as a security for the loan of Rs.5000/- R.S.A.245/2005 2 availed of by respondent to enable the son of appellant to go to Gulf. It was also contended that Ext.A1 is only a sham and nominal document which was not acted upon and respondent did not obtain possession of the property and he had agreed to reconvey the property, on receiving the amount paid to appellant and he is not entitled to the decree for injunction. 2. Learned Munsiff on the evidence of Pw1, Dws.1 and 2 and Exts.A1 to A9 and B1 and B2 dismissed the suit holding that respondent did not establish his possession of the property as well as cause of action alleged for instituting the suit. Respondent challenged the judgment before Sub Court,Vadakara in A.S.28/2003. Learned Sub Judge on reappreciation of evidence found that execution of Ext.A1 was admitted by appellant and Ext.A1 sale deed shows that the property was handed over to the respondent and evidence establish that respondent has been in possession of the property and granted a decree for injunction. It is challenged in the R.S.A.245/2005 3 second appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of the learned counsel is that first appellate court was not justified in interfering with the findings of the trial court, when trial court had the advantage of noting the demeanour of the witnesses and on the evidence it should have been found that under Ext.A1 sale deed respondent did not obtain possession of the property and he did not establish his possession of the plaint schedule property and therefore suit should have been dismissed. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. The fact that Ext.A1 sale deed was executed by the appellant was not disputed. What was contended by appellant was that it was only a sham and nominal document and was executed only as security. Respondent claim that he obtained R.S.A.245/2005 4 possession of the property under Ext.A1 and has been in possession of that property since then. No decree for declaration of title was sought for. 7.Being a suit for injunction learned Munsiff framed issues only regarding possession as well as cause of action. The question whether Ext.A1 is a sham and nominal document as claimed by appellant is not very relevant for a decision of the appeal as suit is not based on title. First appellate court on appreciating the evidence found that Ext.A1 itself shows that possession of the property was handed over to the respondent. First appellate court also found that the evidence of PW1 with the tax receipts evidencing payment of tax establish possession of the plaint schedule property with the respondent. In the light of that factual finding, based on proper appreciation of evidence, I do not find any reason to interfere with the findings of fact by the first appellate court which is final. Appeal is dismissed in limine. It is made R.S.A.245/2005 5 clear that dismissal of the appeal will not disentitle appellant from instituting a suit for declaration based on his defence on the nature of Ext.A1. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006