IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 RSA.No. 862 of 2008() --------------------- AS.113/2005 of SUB COURT, PALA OS.105/1998 of MUNSIFF COURT, PALA .................... APPELLANTS -------------------- 1. P.C.THOMAS S/O.LATE KUNJAPPAN, PRIYA COTTAGE, PANACHINANIKAL, VALLIKODEKARA, PALAKKAD TALUK & DISTRICT. 2. MARY THOMAS W/O.P.C.THOMAS, DO..DO...... BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S): -------------------------- V.V.VARGHESE, S/O.VARGHESE, VARACHERIL (H) ANTHINADU P.O., ALANADUKARA, BHARANANGANAM VILLAGE, PALA. ADV. SRI.BIJU ABRAHAM FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/01/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.862 of 2008 = = = = = = = = = = = = = = Dated this the 13 th day of January 2009 JUDGMENT Defendants 1 and 2 ( who are husband and wife) in O.S.No. 105 of 1998 on the file of the Munsiff's Court, Pala are the appellants in this second appeal. The said suit was filed by one Varghese, the elder brother of the 2nd defendant Mary for realization of Rs.50,000/- together with interest thereon said to have been borrowed by the defendants from the plaintiff on 19.11.96 for discharging the liability of the defendants in connection with their daughter's marriage and their house construction . The suit was resisted by the appellants denying the alleged transaction. 2. On the side of the plaintiff he examined himself as PW1 and also examined his elder brother as PW2 and his tenant as PW3. Ext.A1 to A9 were got marked. On the side of the defendants they examined themselves as Dws1 and 2 and got marked Exts.B1 to B3. 3. The learned Munsiff, after trial as per judgment and R.S.A.No. 862 of 2008 2 decree dated 31.8.05 decreed the suit as prayed for. On appeal preferred by the defendants as A.S.No.113 of 2005, the lower appellate court has confirmed the decree passed by the trial court and has dismissed the appeal as per judgment and decree dated 26.11.2007. Hence this second appeal. 4. Following are the questions of law formulated in the memorandum of second appeal:- i. Are the courts below legally succeeded in analysing the evidence available in the case? ii. Are the courts below legally correct in decreeing the suit as prayed for, while there is no specific evidence which would show the actual transaction and the payment of the amount involved in the transaction? iii. Could have the suit been decreed, under the provisions of Income Tax Act, while the alleged transaction was not done through cheque? iv. Is the suit barred by limitation? v. Are the judgments and decrees passed by the courts below sustainable in law? 5. I heard the learned counsel appearing for the appellant. He made the following submissions before me in support of the appeal:- R.S.A.No. 862 of 2008 3 It is in evidence that eventhough the plaintiff did not successfully secure admission for the daughter of the defendants, he had made some demand for the attempts made by him for securing her admission. Exts.A7,B1 and B3 letters between the plaintiff and his sister/2nd defendant will indicate that the brother and sister were not on cordial terms on account of the same even on 17.3.96. If so, it was quite improbable that the defendants would have paid a visit to the plaintiff's house on 19.11.96 and would have borrowed a sum of Rs.50,000/- from him. The case of the plaintiff that the amount was borrowed by the defendants in connection with the house construction and their daughter's marriage is falsified by the testimony of the 1st defendant examined as DW1 who has categorically admitted that the house construction was completed in the year 1991 and her daughter's marriage was conducted in the year 1994. The case of the plaintiff that the defendants borrowed a sum of Rs.50,000/- on 19.11.96 is therefore improbable. The lower appellate court has not undertaken an exhaustive re-appraisal of the oral and documentary evidence while disposing of the appeal. The courts below failed to note the preponderance of R.S.A.No. 862 of 2008 4 probabilities in the case before decreeing the suit. 6. I am afraid that I cannot agree with the above submissions. The case pleaded in the plaint is not that the amount was borrowed in connection with the house construction and the marriage of the defendant's daughter. The plaint specifically pleads that the amount was borrowed for discharging the liability incurred in connection with the house construction as well as their daughter's marriage. The plaintiff, Varghese is the brother of the 2nd defendant, Mary and the 1st defendant,P.C.Thomas is the husband of the 2nd defendant. Both the defendants were school teachers and the plaintiff is a retired college Professor. The witness examined as PW2 by the plaintiff is the elder brother of both the plaintiff as well as the 2nd defendant. It is true that Exts.A6,B1 and B3, letters between the brother and sister would go to show that some misgivings existed in between the plaintiff and the 2nd defendant. But that was not serious enough to improbabilise the loan transaction between the defendants and the plaintiff. In preference to DWs1 and 2, the trial court which had the unique advantage of seeing the witnesses and assessing their credibility had chosen to R.S.A.No. 862 of 2008 5 believe Pws1 to 3 to accept the loan transaction set up by the plaintiff. The lower appellate court also has not noticed any infirmity in the appreciation of the evidence by the trial court. In a case where a finding rendered by the trial court is largely based on the oral evidence of the parties, the said findings recorded by the trial court is entitled to great weight (See 1983 SC 114) Madhusudan Das v. Narayani Bai and others. Hence the findings recorded by the courts below cannot be said to be erroneous or perverse. 7. It is true that the lower appellate court has not elaborately discussed the oral and documentary evidence, but has expressed general agreement regarding the findings recorded by the trial court. In a case where the appellate court confirms the judgment and decree passed by the trial court , it is enough that the trial court expresses general agreement with the conclusions reached by the trial court which has carefully evaluated the oral and documentary evidence (vide AIR 1967 SC 1126) Girijanandhini Devi and others v. Bijendra Narain Chowdhary. R.S.A.No. 862 of 2008 6 The result of the aforesaid discussion is that this Court is not inclined to interfere with the conclusions reached by the courts below concurrently. No question of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 13 th day of January, 2009. V. RAMKUMAR, JUDGE sj