IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 245 of 2005()
1. PATTARMADATHIL SHANTHA,
... Petitioner
Vs
1. CHANDROTH THAZHEKUNIYIL ABDULLA,
... Respondent
For Petitioner :SRI.R.PARTHASARATHY
For Respondent :SRI.P.NARAYANAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :14/02/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.S.A. NO. 245 OF 2005
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Dated this the 14th day of February, 2008
JUDGMENT
Defendant in O.S.71/2002 on the file of Munsiff
Court, Nadapuram is the appellant. Plaintiff is
the respondent. Plaint schedule property
admittedly originally belonged to the appellant.
Under Ext.A1 registered sale deed dated 24.1.1998
appellant assigned plaint schedule property in
favour of respondent. Respondent claims that from
the date of execution of Ext.A1 he has been in
possession and enjoyment of the property and
appellant removed the northern boundary and
attempted to interfere with his peaceful possession
and enjoyment of the plaint schedule property. He
instituted the suit for permanent prohibitory
injunction. Appellant resisted the suit admitting
execution of Ext.A1 but contending that it was not
executed as a sale deed and instead was executed
only as a security for the loan of Rs.5000/-
R.S.A.245/2005 2
availed of by respondent to enable the son of
appellant to go to Gulf. It was also contended
that Ext.A1 is only a sham and nominal document
which was not acted upon and respondent did not
obtain possession of the property and he had agreed
to reconvey the property, on receiving the amount
paid to appellant and he is not entitled to the
decree for injunction.
2. Learned Munsiff on the evidence of Pw1,
Dws.1 and 2 and Exts.A1 to A9 and B1 and B2
dismissed the suit holding that respondent did not
establish his possession of the property as well as
cause of action alleged for instituting the suit.
Respondent challenged the judgment before Sub
Court,Vadakara in A.S.28/2003. Learned Sub Judge
on reappreciation of evidence found that execution
of Ext.A1 was admitted by appellant and Ext.A1 sale
deed shows that the property was handed over to the
respondent and evidence establish that respondent
has been in possession of the property and granted
a decree for injunction. It is challenged in the
R.S.A.245/2005 3
second appeal.
3. Learned counsel appearing for appellant was
heard.
4. The argument of the learned counsel is that
first appellate court was not justified in
interfering with the findings of the trial court,
when trial court had the advantage of noting the
demeanour of the witnesses and on the evidence it
should have been found that under Ext.A1 sale deed
respondent did not obtain possession of the
property and he did not establish his possession of
the plaint schedule property and therefore suit
should have been dismissed.
5. On hearing the learned counsel, I do not
find that any substantial question of law is
involved in the appeal.
6. The fact that Ext.A1 sale deed was executed
by the appellant was not disputed. What was
contended by appellant was that it was only a sham
and nominal document and was executed only as
security. Respondent claim that he obtained
R.S.A.245/2005 4
possession of the property under Ext.A1 and has
been in possession of that property since then. No
decree for declaration of title was sought for.
7.Being a suit for injunction learned Munsiff
framed issues only regarding possession as well
as cause of action. The question whether Ext.A1
is a sham and nominal document as claimed by
appellant is not very relevant for a decision of
the appeal as suit is not based on title. First
appellate court on appreciating the evidence found
that Ext.A1 itself shows that possession of the
property was handed over to the respondent. First
appellate court also found that the evidence of PW1
with the tax receipts evidencing payment of tax
establish possession of the plaint schedule
property with the respondent. In the light of
that factual finding, based on proper appreciation
of evidence, I do not find any reason to interfere
with the findings of fact by the first appellate
court which is final.
Appeal is dismissed in limine. It is made
R.S.A.245/2005 5
clear that dismissal of the appeal will not
disentitle appellant from instituting a suit for
declaration based on his defence on the nature of
Ext.A1.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006