IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 AS.No. 134 of 1996() -------------------- OS..393/1994 of PRL.S.C.,THALASSERY .................... APPELLANT(S): -------------- P.P.ISMAIL, S/O.MAMMU HAJI, 31 YEARS, BUSINESS, RESIDING PANOORPEEDIKA, PANOOR AMSOM DESOM, P.O.PANOOR, TELLICHERRY TALUK, KANNUR DISTRICT. BY ADV. SRI M.RAMESH CHANDER, SRI.M.S.MANIKANTAN RESPONDENT(S): --------------- M.P.RAJU, S/O.KUNHIRAMAN, 47 YEARS, BUSINESS, RESIDING AT CHALIL HOUSE, PATTIAM AMSOM DESOM, P.O.PATHAYAKUNNU, THALASSERY TALUK, KANNUR DISTRICT. ADV. SRI.GRASHIOUS KURIAKOSE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- A.S.No.134 OF 1996 ------------------------------------------- Dated this the 9th day of June, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.The plaintiff appeals against the dismissal of a suit for money. 2.According to the plaintiff, the defendant sold a lorry to him on 9.10.1991 fixing a consideration of Rs.2,28,000/- and an advance of Rs.5,000/- was paid on that day. The plaintiff was to pay off the hire purchase loan of Rs.30,000/- outstanding on the lorry and was also to transfer 5 cents of land and 4 shop rooms for Rs.1,00,000/-. According to the plaintiff, he paid to the defendant further amounts of Rs.60,000/- and Rs.25,000/- on 6.11.1991 and 23.11.1991 respectively as evidenced by Exts.A2 and A3. Even according to him, he did not discharge the dues to the hire purchaser. He also did not transfer the property to the defendant, going by the plaint. He built up a AS.134/96 2 case that on 18.1.1992, the defendant took away the lorry from the plaintiff's possession and accordingly, sued for return of the total amount of Rs.90,000/- which the plaintiff had given to the defendant under the alleged agreement. 3.While the defendant did not dispute the agreement as pleaded by the plaintiff, we notice that Ext.A1 which is produced to evidence the terms of the transaction was inadmissible in evidence in as much as it is an unregistered receipt of payment of advance and though so styled, it contains specific recitals as to exchange of the lorry for immovable property mentioned in that document. It further turned out at trial that the so called immovable property and the shop rooms did not belong to the plaintiff but to his wife. On the evidence, the court below also found that there was no shred of legal evidence to show that the defendant had taken away the lorry on 18.1.1992 or at any point of time as alleged by the plaintiff. The plaintiff attempted to show that he had made complaint to the police AS.134/96 3 authorities. But no material was forthcoming before the court below. Learned Subordinate Judge records of having put queries to the learned counsel appearing for the plaintiff as to what action was taken in relation to the missing lorry. Though the reply was that steps were taken for obtaining orders for search and seizure, ultimately nothing was shown. Admittedly, the plaintiff did not pay off the financier. The defendant appears to project a case that it could have been the financier who took away the vehicle. This is a probable version having regard to the fact that the financier was not paid off. The court below held that the terms of the transaction itself was a fraud played by the plaintiff on the defendant in as much as the immovable property, including the shop rooms which the plaintiff agreed to sell (or sold going by the terms of Ext.A1) did not belong to him but to his wife. The court below did not find any material to hold that the vehicle did not continue to be in the de jure possession of the plaintiff. Even if the plaintiff had been deprived of de facto possession by any other person, AS.134/96 4 it was not possible for the court below to saddle the responsibility on the defendant. Even if such responsibility was found, that could not be treated as a breach of the so called agreement. In the aforesaid circumstances, we do not find any illegality in the appreciation of evidence by the court below. Reasonable inferences on the basis of the materials have been rightly arrived at. The court below was justified in dismissing the suit. With the aforesaid, this appeal fails. The same is accordingly dismissed directing both sides to suffer their respective costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.10/06.