IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 RSA.No. 610 of 2009() --------------------- AS.197/2007 of I ADDL.SUB COURT, THRISSUR OS.368/2003 of M.C.,VADAKKANCHERRY .................... APPELLANT: APPELLANT/PLAINTIFF --------------------------------------- NADEERA, W/O.THERUVATH AHAMMAD & D/O.VALIYAKATH MOIDU, NEAR TEMPLE ROAD, KANIYARKODE VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS/RESPONDENTS/ DEFENDANTS ----------------------------------------------------------- 1. GEORGE, S/O.THAIKKAT ANTHONY, ATHANI DESOM, MINALUR VILLAGE, TALAPPILLY TALUK. 2. SANKARAN, S/O.NARAYANAMANGALATH KARUMAN, PAMBADY DESOM & VILLAGE, TALAPPILLY TALUK. 3. HAMZA, BUSINESS, S/O.VETTUPARAMBIL KAMMU, VADAKKUMANGALAM DESOM, LAKKIDY VILLAGE, OTTAPALAM TALUK. 4. BASHEER, BUSINESS, S/O.VETTUPARAMBIL KAMMU, VADAKKUMANGALAM DESOM, LAKKIDY VILLAGE, OTTAPALAM TALUK. 5. AHAMMAD, S/O.PLATHOTTATHIL ABDULLAH, PATTIPPARAMBU DESOM, THIRUVILWAMALA VILLAGE, TALAPPILLY TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1361 OF 2009 IN R.S.A. NO. 610 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 06.07.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 610 of 2009 ---------------------------------------- Dated this the 6th day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 197/2007 on the file of the Sub court,Thrissur which arises from the decree and judgment in O.S. No. 368/2003 on the file of the Munsiff's Court, Wadakkanchery. The suit was filed for declaration and for permanent prohibitory injunction. The trial court dismissed the suit and was confirmed in appeal by the lower appellate court. Hence the Second Appeal. The plaintiff in the suit is the appellant herein. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The case of the plaintiff is that she has been in possession of three items of properties described as plaint schedule items1, 2 and3 by way of Ext.A1 and A2 agreements for sale and that she is residing in item No. 2 and is running a quarry . 3. In the written statement filed by the 1st defendant,it is contended that he was not aware of any agreement of sale with respect to any item of properties as alleged in the plaint. According to the 1st defendant the agreements for sale produced as Exts.A1and A2 are concocted documents intending to defeat the 1st defendant. -2- 4. The 2nd defendant in his written statement contended that he agreed to sell item Nos. 1 & 2 of the plaint A schedule property to the plaintiff and received Rs. 80,000/- as advance towards sale consideration and put the plaintiff in possession. it is further averred that it is not correct to say that the 2nd defendant has committed breach of contract that he assigned items Nos 1 and 2 of plaint A schedule properties to the 1st defendant as instructed by the 5th defendant who is none other than the husband of the plaintiff. He also supported the case of the plaintiff. 5. In the written statement filed by defendants 3 and 4 it is contended that they agreed to sell item No 3 of the plaint 'A'schedule property to the plaintiff and executed an agreement. According to them subsequently the plaintiff has withdrawn from the contract and therefore they assigned the property to the 1st defendant as instructed by the plaintiff. 6. The trial court examined the evidence on record. PW1 and DW1 were examined the Exts A1 to A15, B1 to B16. Exts.C1 and C1(a) and Exts.X1 and X1(a) were marked. 7. The contentions of respective parties were examined in detail also. The trial court held that there were material contradictions and striking improbabilities in the evidence of PW1 regarding the execution of -3- Ext.A1 and therefore the plaintiff got possession of item No.1 and 2 of plaint 'A' schedule in pursuance of Ext.A1 cannot be believed. 8. The trial court also examined the genuineness of Ext.A2 agreement The trial court found that as per the terms of Ext.A2, the possession of item No.3 was to be handed over after evicting the labourers who were remaining/continuing in item No. 3 of plaint A schedule. But there is no evidence to show that the defendant Nos. 3 and 4 handed over possession of item No.3 of plaint 'A' Schedule after evicting the said labourers. The trial court further held that in the above circumstances the evidence of PW1 that she got possession of item No.3 of plaint A schedule on 26.9.1997 in pursuance of Ext.A2 cannot be believed also. 9. The question whether the plaintiff has got possession over plaint schedule items 1,2 and 3 were again considered in detail. The trial court after considering all the facts and circumstances probabilities and evidence concluded that the plaintiff has failed to prove that she has obtained possession of plaint schedule property pursuant to any agreements. It is further held that though defendant Nos. 3 and 4 had agreed to sell item No. 3 of plaint schedule property she could not perform her part and subsequently the 3rd and 4th defendants assigned item No. 3 of plaint 'A' schedule to the 1st defendant as instructed by the plaintiff and -4- her husband. The trial court found that the 1st defendant is a bonafide purchaser for consideration and that he had no knowledge of the contract for sale. The trial court also found that item No.3 of plaint 'A' schedule is in the possession and ownership of the 1st defendant and that the 5th defendant along with the plaintiff and children were residing in the house in item No. 2 of plaint A schedule only as tenants and they have no possession over the remaining property. The trial court further held that an analysis of all the evidence would lead to the fact that Ext.A1 is not a genuine document, that the plaintiff has failed to establish that she has been ready and willing to perform her part of Ext.A2 agreement, that the plaintiff is not entitled to get a decree for declaration and consequential injunction. Because of the non-production of quarry running licence the trial court rejected the plea that the plaintiff is running the quarry. 10. The dismissal of the suit was challenged before the lower appellate court in A.S. 197/2007 The lower appellate court also considered all the contentions of the plaintiff/appellant including her claim for protection under Section 53(A) of the Transfer of property Act The lower appellate court after considering all the aspects on the basis of evidence on record, held that no reasons are made out to interfere with the findings of the trial court. 11. I have gone through the findings arrived at by the courts -5- below. I am of the view that the courts below arrived at such findings solely on the basis of evidence facts and circumstances of the case. The lower appellate court rightly held that the trial court's findings cannot be interfered with. I think that the courts below are justified in entering such findings in the given circumstances. No question of law much less any substantial question of law arises for consideration in this appeal. There is no scope for invoking my jurisdiction under Section 100 of the C.P.C. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 610 of 2009 ---------------------------- JUDGMENT 6th July, 2009