IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 RSA.NO. 674 OF 2009() --------------------------------- AS.16/2006 OF ADDL. DISTRICT COURT, PARAVUR OS.440/1996 OF MUNSIFF COURT, PARAVUR .................... APPELLANT – APPELLANT - PLAINTIFF: ---------------------------------------------------- KRISHNAN, S/O.BAPPY, AGED 50, KUSIDU PARAMBIL, KUNJITHAI MURI, VADAKKEKKARA VILLAGE. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.N.AJITH SRI.P.M.NEELAKANDAN SMT.GEETHA P.MENON RESPONDENT(S) – RESPONDENT - DEFENDANTS: ------------------------------------------------------------------ 1. MARIYA FERNANDAS, AGED 60 YEARS, W/O.ALBERT FERNANDAS, THAIPARAMBIL, KUNJITHAI MURI, VADAKKEKKARA VILLAGE. 2. MARY FELICITY, AGED 39 YEARS, D/O.ALBERT FERNANDAS, THAIPARAMBIL, KUNJITHAI MURI VADAKKEKAKKARA VILLAGE. 3. STANLEY FERNANDAS, AGED 34 YEARS, S/O.ALBERT FERNANDAS, THAIPARAMBIL, KUNJITHAI MURI, VADAKKEKKARA VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.674 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 15th day of September, 2009 J U D G M E N T ---------------------- In this Second Appeal judgment and decree passed by learned Additional District Judge, North Parur in A.S. No.16 of 2006 confirming the dismissal of the suit by the learned munsiff, Parur in O.S. No.440 of 1996 is under challenge. Substantial questions of law urged for a decision is whether the courts below have erred in casting the burden of proof wrongly on the appellant/plaintiff and whether courts below have erred in not finding that sale deed Nos.8105, 8106 and 8107 of 1995 are vitiated by fraud, undue influence and misrepresentation. 2. According to the appellant, plaint A schedule property belonged to him as per sale deed No.3647 of 1991. He has been in possession and enjoyment of the said property. He is also in possession of 7 cents in Sy.No.191/3 purchased on 13.7.1995. He wanted to sell plaint A schedule property to clear his financial liabilities and respondent Nos.1 to 3 approached him through defendant No.4 (not a party in the appeal), a real estate broker for purchase of plaint A schedule property. Accordingly deal was negotiated and settled at Rs.13,000/- per cent. Respondent Nos.1 to 3 R.S.A. No.674 of 2009 -: 2 :- agreed to purchase A schedule property for Rs.1,66,000/-. Plaint B schedule belonged to respondent Nos.1 to 3 which according to appellant was offered as security to him since respondent Nos.1 to 3 had only Rs.50,000/- with them to be paid as consideration for the A schedule property. Accordingly sale deed Nos.8105, 8106 and 8107 of 1995 were executed, first one being in respect of plaint B schedule in the name of appellant and the latter two being in respect of plaint A schedule in the name of respondent Nos.1 to 3. According to the appellant, plaint A schedule property remained in his possession notwithstanding the said sale deeds and separate agreement was also executed. Respondent Nos.1 to 3 failed to pay the balance sale consideration of Rs.1,16,000/- and appellant was constrained to sell 7 cents belonging to him to clear his debts. Suit is filed to set aside above said sale deeds on the ground of fraud and undue influence. 3. Respondent Nos.1 to 3 contended that plaint B schedule was exchanged with the appellant for plant A schedule property and sale deeds were executed for valid consideration. They denied that there was any fraud or undue influence. Parties have got respective properties on the strength of earlier sale deeds and while so appellant trespassed into plaint A schedule property and occupied the shed. R.S.A. No.674 of 2009 -: 3 :- Learned munsiff found that allegations of fraud and undue influence are not specifically pleaded in the plaint as required under Order VI Rule 4of the Code of Civil Procedure and at any rate there is no evidence regarding such allegations. Learned munsiff further found that appellant was not able to prove possession of plaint A schedule with him. That finding was based on Ext.B3, copy of judgment in O.S.No.257 of 1996 filed by respondent Nos.1 to 3 against the appellant trespassing into plaint A schedule where a decree was granted in favour of respondent Nos.1 to 3. First appellate court concurred with the findings entered by the trial court. 4. It is fairly conceded by learned counsel for appellant that appellate judgment and decree arising from Ext.B3 judgment in O.S. No.257 of 1996 were challenged in this Court in R.S.A. No.631 of 2009 and by judgment dated 28.7.2009 it was dismissed holding that no substantial question of law is involved in the matter. In other words finding in O.S. No.257 of 1996 that respondent Nos.1 to 3 are in possession of plaint A schedule on the strength of sale deed Nos.8106 and 8107 of 1995 has become final and is binding on the appellant. Moreover there is no evidence let in, in this case to show that there was any fraud or undue influence exercised on the appellant for the R.S.A. No.674 of 2009 -: 4 :- execution of the impugned sale deeds. No question of fiduciary relationship is involved in this case between appellant and respondent Nos. 1 to 3 so that question of undue influence does not arise at all. Further fact to be noted is that sale deed Nos.8106 and 8107 of 1995 are in respect of plaint A schedule. Those documents were not even produced in the trial court. On going through the judgment under challenge and on hearing counsel I am inclined to hold that no question of law and much less any substantial question of law is involved. Findings entered by learned munsiff as concurred by the first appellate court are on facts based on evidence on record. Second Appeal is without any merit and the same is liable to be dismissed. Second Appeal is dismissed. THOMAS P.JOSEPH, JUDGE. vsv