IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 SA.No. 262 of 1998() ----------------------------- A.S.154/1991 of PRINCIPAL SUB COURT, ATTINGAL O.S.450/1990 of MUNSIFF COURT, ATTINGAL .................... APPELLANT/APPELLANT/PLAINTIFF ----------------------------------------------------- VELAYUDHAN SASIDHARAN, SHRIDARA VILASOM, PAZHAYAKUNNUMMEL DESOM, PAZHAYAKUNNUMMEL VILLAGE. BY ADV. SRI.P.PARAMESWARAN NAIR SMT.SREELATHA PARAMESWARAN NAIR RESPONDENT/RESPONDENT/DEFENDANT -------------------------------------------------------------- MADHAVAN KARUNAKARAN, RAJEEV BHAVAN, NEAR MADAN NADA, PAZHAYAKUNNUMMEL VILLAGE, PAZHAYATTUMOOZHI, PAZHAYAKUNNUMMEL DESOM. BY ADV. SRI.NAIR AJAY KRISHNAN SRI.NAGARAJ NARAYANAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J. ---------------------------- S.A.No. 262 of 1998 --------------------------------- Dated this the 4th day of February, 2011 JUDGMENT Undaunted by the concurrent findings against him, the plaintiff in O.S.450/1990 before the Munsiff's Court Attingal has come up in second appeal before this court. 2. The plaintiff obtained the plaint schedule property under Ext.A1 sale deed dated 22.10.1987 from the defendant on payment of a consideration of Rs.4,000/-. Before executing sale deed, the appellant was made to believe that there was no encumbrance on the plaint schedule property. But things turned out to be otherwise. Hence the suit for realisation of the amount paid as consideration and expenses for executing the document with interest at 12%. 3. The defendant resisted the suit by pointing out that after three years from the execution of the sale deed, the plaintiff has instituted the suit only to harass this defendant. Defendant never played fraud on the plaintiff. Plaintiff got possession of the property as per the sale deed. In the sale deed, the B schedule was offered as security in case of any loss caused to the plaintiff S.A.No. 262 of 1998 2 as a result of the sale. On the above grounds he prayed for a dismissal of the suit with costs. 4. Based on the above pleadings, necessary issues were raised by the trial court. There was no oral evidence either by the plaintiff or by the defendant and Ext.A1 alone was marked before the trial court. The B schedule in Exhibit A1 was offered as security for the consideration paid for the execution of sale deed and as per the recital in Ext. A1 if any loss was suffered by the appellant, he could realise it from the B schedule property. There is no prayer in the plaint for getting the damages from the B schedule property. Since the plaintiff had not established fraud by the respondent, while executing Ext.A1, the suit was dismissed. 5. The plaintiff carried the matter in appeal as A.S.154/1991 before the Sub Court, Attingal. The lower appellate court after an elaborate consideration of the material before it, concurred with the trial court and dismissed the appeal and confirmed the lower court judgment. Hence the second appeal. S.A.No. 262 of 1998 3 6. Notice has been issued on the following substantial questions of law: 1. Whether the defendant is not bound to put the plaintiff in actual peaceful physical possession of the property sold by him under Section 55(1)(f) of the Transfer of property Act. 2. Is it not the bounden duty on the vender to inform about the actual possession of the property to the vender under Section 51(1)(a) of the Transfer of Property Act. 3. Whether a vendee is not entitled to get back the consideration paid by him under the sale deed when the vendee did not get the possession of the property included in the sale deed. 7. On must remember that plaintiff had taken a sale deed from the defendant. A perusal of the sale deed shows that the defendant traces his title to the property in Ext.A1 sale deed. There was no oral evidence on the part of the plaintiff and defendant and Ext.A1 alone was marked before the trial court. The trial court found that the appellant failed to prove that the respondent has played fraud on him and also that he did not get possession over the property as per Ext.A1 sale deed. Though fraud was alleged no details were given in the plaint. There was also no attempt to adduce any evidence in support of the plea of S.A.No. 262 of 1998 4 fraud. The plaintiff remained satisfied by producing Ext.A1 deed. Under such circumstances, the courts below were perfectly justified in dismissing the suit. No grounds are made out warranting interference with the findings of the courts below. The Second Appeal is devoid of any merits and accordingly, it is dismissed. However, the plaintiff is at liberty to seek such remedy as are available to him in law. P.BHAVADASAN, JUDGE. ln