IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 RSA.No. 40 of 2008() -------------------- AS.272/2006 of D.C. & SESSIONS COURT,KOLLAM OS.173/1994 of MUNSIFF COURT, PUNALUR .................... APPELLANT/APPELLANT/PLAINTIFF ---------------------------------------------- SAFIA BEEVI, AGED 53 YEARS, W/O MUHAMMED HANEEF, SAFIA HOUSE, KUNDAYAM MURI, KUZHAKATTU KIZHAKKEKKARA, PATHANAPURAM VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.P.B.SURESH KUMAR SRI.K.P.SUJESH KUMAR RESPONDENTS: RESPONDENTS/DEFENDANTS ----------------------------------- 1. MYTHEEN BEEVI, HABEEBA BEEVI, AGED 59 YEARS, BABY VILLA, MANJALOOR MURI, PATHANAPURAM TALUK. 2. MUHAMMED NAJEEB, AGED 49 YEARS, SUB INSPECTOR OF POLICE, PATHANAPURAM POLICE STATION. ( THE NAME OF 2ND RESPONDENT IS DELETED AS PER ORDER DATED 1.6.2009 IN I.A. 990 OF 2009) BY ADV. SRI.S.ABDUL RAZZAK FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02.06. 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 40 of 2008 ---------------------------------------- Dated this the 2nd day of June, 2009 JUDGMENT This Regular Second Appeal is directed against the judgment and decree in A.S. 272/2006 on the file of the District Judge Kollam which arises from O.S. 173/1994 on the file of the Munsiff Court, Punalur. The suit was filed for cancellation of Ext.B1 sale deed dated 28.1.1993 executed by the plaintiff in favour of the 1st defendant. The suit was dismissed by the trial court , which was confirmed in appeal by the lower appellate court. Hence this second appeal is filed by the plaintiff in the suit. The parties hereinafter referred to as plaintiff and defendant as arrayed in the Suit. 2. The plaintiff is the title holder of 5 cents of property and the building therein. The plaintiff availed a loan of Rs. 3700/- from the 1st defendant who is a money lender. It is the case of the plaintiff that the 1st defendant demanded the title deed of the plaint schedule property for execution of the same in favour of the 1st defendant as a collateral security. It is the further case of the plaintiff that after paying Rs. 3,700/- the 1st defendant and her men took the plaintiff to the document writer's office and after preparing the document there, stating that it was only a collateral security for securing the repayment of the loan amount , the 1st defendant took the plaintiff to the Sub-Registrar's office at Pattazhi and -2- got the document registered . According to the plaintiff she was not aware of the fact that the document which she registered is a sale deed that when she approached the 1st defendant for repayment of the loan, the 1st defendant demanded Rs. 50,000/- stating that the document which she executed was a sale deed in favour of the 1st defendant. According to her the 1st defendant was infact exercising fraud and cheating on her and fraudulently executed the sale deed in 1st defendant's favour. The plaintiff also submitted that the document is a result of fraud and misrepresentation and it is not supported by any consideration at all and therefore the sale deed did never come into effect. 3. The defendant contested the suit denying the averments in the plaint . 4. The trial court considered whether Ext.B1. Sale Deed No.122/1993 is liable to be cancelled . 5. The trial court discussed in detail the oral and documentary evidence placed before it by both sides. The evidence consists of Exts A1 to A4, B1 to B4, PWs 1 to 3 and DWs 1 to 4. . The trial court also examined the respective contentions of both parties on the basis of the evidence let in by both parties and the facts and circumstances leading to the execution of Ext.B1 Sale deed and Ext.B4 rent deed. The trial court also held that the plaintiff is in possession of the plaint schedule property only on the basis of Ext.B4 rent deed. The trial court also observed that the plaintiff approached it without any bonafides and Ext.B1 sale deed which is legally executed by the plaintiff in favour of the 1st defendant after receiving valid consideration. -3- 6. The plaintiff preferred appeal before the lower appellate court. That court also re-assessed the evidence on record. After an elaborate analysis of the oral and documentary evidence the lower appellate court held that except for the ipsi- dixit of the plaintiff there is nothing to show that any fraud had been played on her by the 1st defendant. It is also observed that there is nothing to show that the 1st defendant had obtained the signature of the plaintiff on Ext.B1 document by misrepresentation The lower appellate court also noticed the fact that the plaintiff admits her own signature in Ext.B1 and B4 documents, that one cannot omit to note that the prior documents namely Exts.B2 and B3 were handed over by the plaintiff to the 1st defendant. The lower appellate court also held that if as a matter of fact the plaintiff had executed Ext.B1 as only security there is no reason as to why she should handover Ext.B2 and B3 to the 1st defendant. I am of the view that the lower appellate court also examined in detail all the circumstances leading to the execution of Exts. B1 and B4 and entered a correct finding. The concurrent findings entered by the courts below are based on facts, evidence and materials. No questions of law much less any substantial question of law arises for consideration in this appeal. I find that no grounds are made out to interfere with the judgments and decrees of the courts below and to invoke Secion100 of the C.P.C This appeal is devoid of any merit and accordingly dismissed (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 40 of 2008 ---------------------------- JUDGMENT 2nd June , 2009