IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 RSA.No. 397 of 2011() --------------------- AS.224/2009 of DISTRICT COURT, KOTTAYAM OS.287/2000 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANT/ APPELLANT/PLAINTIFF --------------------------------------- VALSALAKUMARI, W/O.VIKRAMAN, PEEDIKAPARAMBIL HOUSE, PEROOR KARA, PEROOR VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT/ RESPONDENT(S): DEFENDANT ------------------------ JAMES, S/O.JOSEPH, MUTTATHUPADAM HOUSE, CHERUVANDOOR BHAGAM, ETTUMANOOR VILLAGE, KOTTAYAM TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.397 OF 2011 --------------------------------------------- Dated 8th June, 2011 JUDGMENT Plaintiff in O.S.287/2000 on the file of Munsiff court, Ettumanoor is the appellant. Defendant is the respondent. Plaint schedule property having an extent of 6.51 Ares in R.S.No.246/9 of Peroor village, admittedly originally belonged to the appellant. Under Ext.B1 assignment deed dated 6/3/1999, appellant assigned the property in favour of the respondent. Appellant instituted the suit seeking a decree declaring her title to plaint schedule property and to set aside Ext.B1 sale deed and also for a permanent prohibitory injunction restraining the respondent from trespassing into plaint RSA 397/11 2 schedule property contending that though Ext.B1 sale deed was executed purporting to be a sale deed it was not intended to be acted upon as a sale deed and instead when the appellant borrowed Rs.5,000/- from the respondent as insisted by the respondent, the sale deed was executed as security and possession was never transferred and the appellant continued to be in possession of the property and she is residing in the building and continuous her possession of the property and respondent attempted to cut and remove the trees by trespassing into the property and he has no right to do so. Appellant is prepared to repay the amount borrowed and therefore, she is entitled to the decree sought for. 2. Respondent resisted the suit contending that appellant instituted the suit after trespassing into the cattle shed in the RSA 397/11 3 plaint schedule building two days prior to the institution of the suit and by Ext.B1 assignment deed appellant had already transferred the property in favour of the respondent which is a valid sale deed and appellant is not entitled to get the sale deed set aside and she is not entitled to the declaration of title or injunction sought for. 3. Learned Munsiff on the evidence of Pws.1 to 4, DW.1 Exts.A1 to A4, B1 to B3 and C1 and C1(a) dismissed the suit holding that Ext.B1 is a sale deed and appellant had already transferred the property under Ext.B1 and it is not a document executed as security as claimed and hence the appellant is not entitled to the reliefs sought for. Appellant challenged the judgment in A.S.224/2009. Learned District Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff RSA 397/11 4 and dismissed the appeal. 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 property assigned under Ext.B1 is more than 6 Ares, the total consideration shown is only Rs.5,000/- and that itself shows that it was not a sale deed but only a document executed as security for the amount borrowed as claimed by the appellant. Learned counsel pointed out that the courts below did not properly appreciate the evidence and Ext.C1 report of the Commissioner establishes that when the Commissioner inspected the property immediately after institution of the suit, Commissioner could find possession of the house with the appellant, as he has noted all the household articles in the building. Learned RSA 397/11 5 counsel also pointed out that Ext.A2 ration card shows that ration card was issued in favour of the appellant in House No.504 of Ward No.17 and in the light of Ext.A2 finding of the first appellate court that there is no ward No.17 and hence facts noted by the Commissioner in Ext.C1 cannot be relied on is not sustainable. Learned counsel vehemently argued that on a proper appreciation of the evidence, it should have been found that appellant continued to reside in the same building even after execution of Ext.B1 which establishes that possession of the property was not transferred and when consideration shown in Ext.B1 is only Rs.5,000/- it is clear that it was not a sale and hence a decree should have been granted. 6. As rightly found by the courts below sale deed validly executed by the appellant in RSA 397/11 6 favour of the respondent cannot be set aside on the ground that consideration shown is not sufficient. Consideration for a property may be fixed between the parties taking into several relevant facts. Based on the alleged sufficiency of the consideration, a sale deed cannot be set aside, especially when there is no allegation that the sale deed is vitiated by fraud, coercion and undue influence. The only question is whether the case of the appellant that possession was not transferred pursuant to Ext.B1 is true and whether for that reason Ext.B1 could be set aside as void. 7. Though learned counsel vehemently argued that possession continued with the appellant, trial court and the first appellate court appreciated the evidence in the proper perspective and entered a factual finding that appellant was not in possession of the property RSA 397/11 7 covered under Ext.B1, subsequent to execution of Ext.B1. Learned counsel had made available the evidence considered by the courts below. On considering the findings of the courts below and the evidence, it cannot be said that appreciation of the evidence by the courts below was not proper much less perverse. In such circumstances, finding of fact entered into by the courts below cannot be interfered in exercise of the the powers under Section 100 of Code of Civil Procedure. Hence, I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.