IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 RSA.No. 631 of 2009() --------------------- AS.11/2006 of ADDL. DISTRICT COURT,N. PARAVUR OS.257/1996 of MUNSIFF COURT, PARAVUR .................... APPELLANT IN RSA/APPELLANT IN A.S./DEFENDANT IN O.S ---------------------------------------------------------------------- KRISHNAN,S/O.BAPPY,AGED 50,KUSIDU PARAMBIL, KUNJITHAI MURI,VADAKKEKKARA VILLAGE. BY ADV. SRI.K.JAYAKUMAR, ADV. SRI.P.B.KRISHNAN ADV. SRI.N.AJITH ADV. SRI.NEELAKANDAN.P.M. ADV. SRI.GEETHA P.MENON RESPONDENTS: RESPONDENTS IN R.S.A,RESPONDENTS IN A.S/PLAINTIFFS IN O.S. ---------------------------------------------------------------------------------------------------------------------- 1. MARIYA FERNANDAS,AGED 60 YRS,W/O.ALBERT FERNANDAS, THAIPARAMBIL,KUNJITHAI MURI,VADAKKEKKARA VILLAGE. 2. MARY FELICITY,AGED 39 YRS, D/O.ALBERT FERNANDAS, THAIPARAMBIL,KUNJITHAI MURI,VADAKKEKKARA VILLAGE. 3. STANLEY FERNANDAS,AGED 34 YRS, S/O.ALBERT FERNANDAS,THAIPARAMBIL,KUNJITHAI MURI, VADAKKEKKARA VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------- R.S.A. No.631 of 2009 ----------------------------------- Dated this the 28th day of July, 2009 JUDGMENT The defendant in O.S.No.257 of 1996 on the file of the Munsiff's Court, Paravur is the appellant. The appeal is directed against the judgment and decree in A.S.No.11 of 2006 on the file of the Additional District Court, North Paravur. This suit was filed seeking realisation of amount alleged to be paid in excess, for recovery of possession of plaint schedule property and for consequential injunction. The trial court decreed the suit directing the defendant to vacate the shed situated in the plaint schedule property and also passed a prohibitory injunction restraining the defendant from trespassing into the plaint schedule property and prevented the defendants from taking income from the property. It is also declared that the plaintiff is not entitled for the refund of Rs.11,300/- with interest claimed in the plaint. The decree and judgment was confirmed in the appeal. Hence the second appeal. The parties hereinafter referred to as plaintiffs and defendant as arrayed in the suit. R.S.A. No.631 of 2009 2 2. According to the plaintiffs by way of an exchange the defendants assigned 12.800 cents to plaintiffs 1 & 3 by virtue of two sale deeds. The said property is the plaint schedule property. The sale consideration for the plaint schedule property is the 10 cents owned by the plaintiffs plus Rs.50,000/-. According to the plaintiff out of Rs.50,000/- as per the terms agreed Rs.11,300/- was excess payment. The suit was filed for return of the excess amount paid namely Rs.11,300/-. It is the further case of the plaintiffs that the defendant put up a shed in the plaint schedule property by force and the plaintiffs came to know about it only on 16/5/1996 when the 3rd plaintiff went to the plaint schedule property and he was found that the defendant is residing in a shed situated in the property. The prayer is for recovery of possession of shed situated in the plaint schedule property and for other prayers for recovery of possession and permanent prohibitory injunction. The suit was resisted by the appellant/defendant denying the averments in the plaint. According to the appellant in spite of the sale deed executed in favour of the plaintiff he retained possession of the R.S.A. No.631 of 2009 3 plaint schedule property, that he decided to sell the plaint schedule property due to some financial constrains, that the plaintiffs offered to purchase the property and the sale consideration was fixed at a price of Rs.1,66,000/-. But the plaintiffs paid only Rs.50,000/- and assured the appellant/defendant that they would pay the remaining amount after selling the 10 cents. At the time the plaintiffs insisted that a sale deed should be executed in their favour in respect of the plaint schedule property as a security for the payment of the balance sale consideration, in that context Ext.A1 and A2 was executed. It is vitiated by fraud and undue influence. Even though the documents were executed, defendant is still in possession of the plaint schedule property. The plaintiffs failed to pay the balance sale consideration of Rs.1,16,000/-. The plaintiffs agreed to execute documents regarding the 10 cents owned by them in favour of the defendant. The defendant further averred that, though the sale deed executed, there was a mutual understanding between the parties and the remaining consideration of Rs.1,16,000/- would be paid to the defendant R.S.A. No.631 of 2009 4 within a period of 3 months. Thus the defendant/appellant explained the circumstances under which the sale deed was executed by the parties and the document Nos.8105, 8106 and the agreement dated 23/12/1995 are vitiated by fraud and undue influence. 3. The trial court examined PW.1, marked Ext.A1 to A6 on the side of the plaintiffs. The defendant failed to adduce both oral and documentary evidence. In the light of the contentions the trial court framed necessary issues and examined the contentions. The trial court held that there is no foundation for the plea regarding the documents vitiated by fraud and undue influence. The trial court also noted the defendants not adducing any evidence to prove fraud and undue influence. In the absence of any proof, the trial court rightly held that the disputed documents are not vitiated by any fraud as alleged in the written statement. The trial court also held that in view of Section 91 and the decisions cited in the judgment, plaintiffs cannot be heard to say that the consideration fixed for the property effected inter sale conveyance between the parties was R.S.A. No.631 of 2009 5 something else than mentioned in the document. Therefore, the consideration shown in the documents is to be taken as a real consideration agreed to and paid as mentioned in the documents. Therefore, the court did not accept the recital in the document than an amount of Rs.11,300/- reserved as excess payment and therefore the claim of the plaintiff for realization of Rs.11,300/- was negatived. 4. The appellate Court also considered all contentions raised by the appellant/defendant. The appellate court also rightly held that Exts.A1 and A2 are vitiated by fraud. The appellate court extracted the pleadings in the written statement. The appellate court confirmed the decision that Exts.A1 and A2 are vitiated by fraud and undue influence. I have also gone through the recital in the documents. The recital in written statement is only to the effect that the documents are vitiated by fraud and undue influence and therefore not taken effect. The appellate court rightly held that the pleadings are not sufficient enough to examine the question. Secondly, the appellate court held that neither the defendants were examined nor other oral R.S.A. No.631 of 2009 6 evidence were adduced in support of the cases set up by him, for that reason also it is not possible to hold that the 3 documents are vitiated by fraud and undue influence. In the light of the finding arrived at stating that Exts.A1 and A2 are not vitiated undue influence, the contentions of the appellant are not accepted by the court. Therefore the court held that the transaction was completed on the date of execution of Exts.A1 and A2 and the presence of appellant in the property is only by trespass and therefore the plaintiffs are entitled to a decree directing the defendant to vacate the shed situated in the plaint schedule property. The cross appeal filed by the plaintiff was also considered and dismissed finding that there is no justification for reversing the judgment and decree passed by the trial court. I find that the trial court and the appellate court had considered the questions in detail and reached the finding based on facts and evidence. The appellant alone is responsible for suffering a decree against him for the reasons that he failed to adduce any evidence in support of this contention. This court’s findings arrived at are purely based on facts. Therefore there R.S.A. No.631 of 2009 7 are no sufficient grounds for invoking the jurisdiction under section 100 of C.P.C. No question of law much less any substantial question of law arises for consideration in this second appeal. Therefore, this appeal fails and accordingly dismissed in limine. HARUN-UL-RASHID, JUDGE Skj.