IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 RSA.No. 258 of 2011 --------------------------------- AS.40/2008 of ADDL.SUB COURT, IRINJALAKUDA OS.35/1986 of MUNSIFF COURT, KODUNGALLUR .................... APPELLANT/RESPONDENT/PLAINTIFF: ALI, SON OF MALETH MOHAMMED, KOTTAPURAM MALIYAMPEEDIKA DESOM, ALENGADU VILLAGE, PARAVOOR TALUK. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENTS/APPELLANTS/DEFENDANTS: 1. ABDUL NAZAR, S/O THANDASSERY ABDUL JABBAR, ERIYAD VILLAGE AND DESOM, KODUNGALLUR TALUK - 680666, REP. BY POWER HOLDER, MOTHER- SUHARA, W/O ABDUL JABBAR. 2. SUHARA, W/O ABDUL JABBAR, ERIYAD VILLAGE, KODUNGALLUR TALUK- 680666. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. ----------------------------------------- R.S.A.No.258 of 2011 ----------------------------------------- JUDGMENT Plaintiff in O.S.No.35/1986 on the file of Munsiff's Court, Kodungallur is the appellant. Respondents are the defendants. Appellant instituted the suit seeking a decree for realisation of Rs.50,000/- contending that marriage of his daughter Rajeena with first respondent, son of the second respondent, was fixed and at the time of betrothal, on 14.1.2003, Rs.50,000/- was paid, but the marriage did not take place and respondents are liable to return the amount. As it was not returned, a decree was sought for. Respondents resisted the suit contending that though marriage was fixed, it did not materialise and the marriage of the daughter of the appellant was over and defendants did not receive any amount as alleged. 2. Learned Munsiff, on the evidence of PWs 1 and 2 and DW1 and Exhibits A1 to A4 and B1 to B3, granted a decree in favour of the appellant with interest at 6% from the date of suit. Respondents challenged the judgment and decree before Sub Court, Irinjalakuda in A.S.No.40/2008. Learned Additional Sub RSA 258/2011 2 Judge, on re-appreciation of evidence, set aside the findings and the decree of the learned Munsiff and dismissed the suit. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. 4. Argument of the learned counsel is that first appellate court should not have relied on the mistaken statement made by the appellant before the Magistrate in Exhibit B1 deposition and on proper appreciation of the evidence, appellate court should not have interfered with the decree granted by the trial court, when the learned Munsiff had the opportunity to note the demeanour of the witnesses. It is, therefore, argued that findings of the first appellate court are to be set aside. 5. Appellant is contending that Rs.50,000/- was paid on 14.1.2003, at the time of betrothal of his daughter Rajeena with the first respondent. The allegation in the plaint is that, that amount was paid, to be returned when demanded. In fact, if there was a payment of Rs.50,000/- to the future son-in-law at the time of betrothal, there cannot be an agreement for its return, as nobody will visualise the position of breach of the relationship. Unfortunately, learned Munsiff did not properly RSA 258/2011 3 appreciate the evidence and finding that a father will not institute a suit for realisation of the money against the boy and his mother, who had agreed to marry his daughter, granted a decree. Inconsistency of the version of the appellant, as evidenced by Exhibit B1 deposition, was omitted to be appreciated by the learned Munsiff. First appellate court, on proper appreciation of evidence, found that case of the appellant cannot be believed. That finding of fact cannot be interfered in the second appeal, as appreciation of evidence cannot be said to be perverse. As no substantial question of law is involved in the appeal, appeal is dismissed. 21st March, 2011 (M.Sasidharan Nambiar, Judge) tkv