IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 RSA.No. 40 of 2011(D) ------------------------------- [AS.NO.51/2009 OF II ADDITIONAL DISTRICT COURT, THODUPUZHA, OS.NO.63/2006 OF SUB COURT,THODUPUZHA] .................... APPELLANTS/APPELLANTS 2 & 3/ADDL. DEFENDANTS 2 & 3: ---------------------------------------------------------------------------------------- 1. SUNNY MATHEW, S/O. LATE P.A. MATHEW, PUTHIYEATH HOUSE, THODUPUZHA VILLAGE, THODUPUZHA TALUK. 2. JOY MATHEW, S/O. LATE P.A. MATHEW, -DO-, -DO-. BY ADVS. SRI.P.R.VENKETESH, SRI.R.AZAD BABU, SRI.K.S.BHARATHAN, SRI.P.R.RAJA. RESPONDENTS/RESPONDENT, APPELLANT NO.4/PLAINTIFF & DEFENDANT NO.4: ---------------------------------------------------------------------------------------------------------------------- 1. ALEX, S/O. ULAHANNAN, KOOTTUMALAPUTHENPURAYIL HOUSE, PUTHUPARIYARAM KARA, MANAKKADU VILLAGE, THODUPUZHA TALUK. 2. BIJU MATHEW, S/O. LATE P.A. MATHEW, PUTHIYEATH HOUSE, THODUPUZHA VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT 7, RADHARC - NA - MULLIEAN DALLY MOHAN ROAD, CANES BORO, IRELAND. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/03/2011, ALONG WITH R.S.A . NOS. 1393 OF 2010 & 63 OF 2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.Nos.1393 of 2010, 40 & 63 of 2011 --------------------------------------- COMMON JUDGMENT Legal heirs of original plaintiff in O.S.Nos.72/2005 and 74/2005 and legal heirs of deceased first defendant in O.S.No. 63/2006 on the file of Sub Court, Thodupuzha are the appellants. O.S.Nos.72/2005 and 74/2005 were filed for a declaration that deceased plaintiff has title to the plaint schedule properties and for cancellation of Exhibits A1 and A3 (Exhibits B9 and B10) sale deeds executed by deceased plaintiff in favour of the respondents. Respondents instituted O.S.No.63/2006 seeking a decree for injunction contending that they obtained title to the properties covered under Exhibits B9 and B10 and alleging that deceased plaintiff is attempting to trespass into the plaint schedule properties by breaking open the plaint schedule room. 2. When the suit was pending, plaintiff in O.S.Nos.72/2005 and 74/2005 died and appellants were impleaded as his legal heirs. So also, appellants as the legal heirs of first defendant were impleaded in O.S.No.63/2006. RSA 1393/10 & 40&63/2011 2 3. Learned Sub Judge, on the evidence of PWs 1 and 2, DWs 1 to 3, Exhibits A1 to A7 and B1 to B30 and C1 to C3, dismissed O.S.No.72/2005 and 74/2005 and granted a decree for injunction in O.S.No.63/2006, in favour of the respondents. Appellants challenged the judgment and decree before Additional District Court, Thodupuzha in A.S.Nos.51/2009, 52/2009 and 53/2009. Learned Additional District Judge, on re-appreciation of evidence, confirmed the findings of the learned Sub Judge and dismissed the appeals. It is challenged in these second appeals. 4. Argument of the learned counsel is that first appellate court erred in holding that evidence cannot be let in against the recitals in Exhibits A1 and A3, in view of the bar provided under Section 92 of Indian Evidence Act. Learned counsel also argued that courts below did not properly appreciate the evidence and as deceased plaintiff was not available for examination, better evidence could not be adduced and in such circumstances, the judgment and decree granted by the courts below are to be set aside. 5. Plaint schedule properties admittedly originally belonged to deceased plaintiff. Case of the deceased plaintiff as well as RSA 1393/10 & 40&63/2011 3 appellants is that though Exhibits B9 and B10 are styled as sale deeds, they were not in fact sale deeds and were executed as security for the amounts borrowed and there was an undertaking by the respondents to re-convey the properties once the amount is repaid and in such circumstances, respondents did not derive any title to the plaint schedule properties and Exhibits B9 and B10 are to be cancelled. 6. Learned Sub Judge and learned Additional District Judge elaborately considered the evidence on record. Apart from the question whether evidence could be let in against the recitals in the registered sale deeds as the alleged intention was only to create documents as security for the money and they were not executed to transfer the property, courts below, on appreciating the evidence, found that case of the appellants cannot be accepted. Exhibit B1 caveat O.P. was admittedly filed by deceased plaintiff against the respondents. Courts below relied on the recitals in Exhibit B1, which establish that Exhibits B9 and B10 are sale deeds and not documents created as security. On appreciating the entire evidence in the proper perspective, it cannot be found that findings of the courts below warrant RSA 1393/10 & 40&63/2011 4 interference on the facts and evidence let in. Hence, I find no substantial question of law involved in the appeals. Appeals are dismissed. 4th March, 2011 (M.Sasidharan Nambiar, Judge) tkv