Dismissed

Raichel Raju v. Hilari

Kerala HC29 May 2012RSA/426/2012

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal where the appellant challenged a sale deed executed allegedly under fraudulent misrepresentation. The court held no substantial question of law arose as the lower courts correctly found no fraud and noted the delay in filing suit.

What did the court decide?

The second appeal was dismissed and all pending interlocutory applications stood dismissed.

Raichel Raju Vs Hilari — Property and Title | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

¶4

TUESDAY, THE 29TH DAY OF MAY 2012/8TH JYAISHTA 1934

¶5

RSA.NO. 426 OF 2012 ()

¶6

AS.121/2008 OF DISTRICT COURT, KOTTYAM OS.189/2002 OF MUNSIFF COURT, CHANGANACHERRY

¶7

APPELLANT/APPELLANT/PLAINTIFF:

¶8

RAICHEL RAJU, W/O. RAJU M.THOMAS, MUTHALAPPARA HOUSE, MAMUNDA KARA, KARUKACHAL, CHANGANACHERRY, KOTTYAM.

¶9

BY ADVS.SRI.RAJEEV V.KURUP SRI.ALEX.M.SCARIA

¶10

RESPONDENT/RESPONDENT/DEFENDANT:

¶11

HILARI, BINDU BHAVAN, VETTIKKATTU KARA, KADATAPPALLY, THIRUVANANTHAPURAM NOW RESIDING AT R.C. 84/0636 NEAR ST. SEBASTIAN'S CHURCH, THIRUVANANTHAPURAM, REPRESENTED BY HIS POWER OF ATTORNEY SATHISH ANANTHAPURI, S/O. R.BHASKARAN NAIR, RESIDING AT TC 8/1124, AKSHARA GARDEN, MYTHRINAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM - 695 006.

¶12

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶13

THOMAS P.JOSEPH, J.

¶14

==================================== R.S.A. No.426 of 2012

¶15

====================================

¶16

Dated this the 29^th day of May, 2012

¶17

J U D G M E N T

¶18

Plaintiff who successively lost her case in the courts below has filed this second appeal.

¶19

Appellant filed the suit for a declaration that sale deed No.1035 of 1999 dated 15.05.1999 (Ext.A3 is its certified copy) executed by her in favour of the respondent is void and for prohibitory injunction against respondent trespassing into the suit property and creating documents concerning the same. Case of the appellant is that at a time when her husband was undergoing imprisonment in Abudabi, respondent who was also working at that place informed the appellant over telephone that to get release of husband of the appellant it is necessary to raise Rs.2,50,000/- to be remitted as fine. On that representation respondent volunteered to advance money and accordingly on the respondent advancing the money, appellant executed the sale deed referred above as security for the money transaction. Later, appellant learned that what the respondent had made her believe is not correct and that respondent was playing fraud on her. She

¶20

R.S.A. No. 426 of 2012

¶21

-: 2 :-

¶22

wanted the respondent to execute a re-conveyance deed of the said property and on refusal, she approached the court seeking reliefs first above stated.

¶23

Respondent denied that there was any fraud in the matter. He also denied that he had made any such representation as claimed by the appellant. There was no money transaction. According to him, he purchased the suit property for Rs.50,000/- and he is in possession of the said property.

¶24

Appellant gave evidence as P.W.1. P.W4 is the husband of the appellant. He stated that he had business connection with the respondent, the latter filed a cheque case against him, he was convicted and sentenced to undergo imprisonment for 10 months. Respondent informed him that somebody else has filed a case against the appellant and that Rs.2,50,000/- is required to be paid as fine. In that circumstance appellant executed the impugned sale deed.

¶25

The Power of Attorney holder of the respondent gave evidence as D.W.1. He claimed that in 1999 respondent informed him over telephone the address of appellant and asked him to make arrangements to purchase the suit property and thereon he contacted the appellant. Appellant told him that P.W.4 informed

¶26

R.S.A. No. 426 of 2012

¶27

-: 3 :-

¶28

her that he owed Rs.15,000/-. The sale deed was executed on payment of Rs.35,000/- to the appellant. Exhibit B1 is the possession certificate produced by the respondent to prove his possession of the property. Exhibit B2 is the location sketch and Ext.B3 is the receipt for payment of revenue.

¶29

D.W.2 was the Manager of a Chit Company where the original of Ext.A3 was deposited by the respondent to create equitable mortgage over the property. Original of Ext.A3 was produced by D.W2. Exhibit X1 is the copy obtained from the original of Ext.A3 and retained by the trial court (while returning the original of Ext.A3 to D.W.2). D.W.1 is the employee of respondent who testified to the sale of the property by the appellant in favour of the respondent.

¶30

Trial court on the above evidence found that claim of appellant that it was by fraud that respondent obtained the impugned assignment deed cannot be accepted and dismissed the suit.

¶31

In appeal at the instance of appellant, an Advocate Commissioner was appointed to inspect the property. Advocate Commissioner inspected the property on 17.09.2009 and submitted a report. In that report it is stated that northern

¶32

R.S.A. No. 426 of 2012

¶33

-: 4 :-

¶34

boundary of the suit property is not available and that property on the north belonged to the appellant. The suit property and the said property lie contiguous. Commissioner also reported that appellant is using the amenities found on the eastern side of the house.

¶35

Advocate Commissioner again inspected the property on 09.11.2010. Exhibit C2(a) is the survey plan prepared by the Advocate Commissioner with the assistance of a Surveyor. There, it is shown that the cattle shed, well, poultry shed, waste water tank, etc., are situated in the suit property and that no portion of the house is situated in the suit property.

¶36

First appellate court, referring to that report and plan observed that the impugned assignment deed was executed in the year, 1999, respondent is not residing nearby and that the suit was filed in the year 2002. The Advocate Commissioner inspected the property only in 2009 and 2010 and by that time the alterations may have been made to the boundary put up at the time of the impugned assignment deed was executed. Appellate court also took note of the evidence of appellant as P.W1 that she learned about the (alleged) fraud from 15.11.1999 but suit was filed only in June, 2002. Learned counsel for

¶37

R.S.A. No. 426 of 2012

¶38

-: 5 :-

¶39

appellant would contend that having regard to the circumstances proved in the case trial and first appellate courts ought to have found that it was by fraud that respondent got the sale deed executed on 15.05.1999.

¶40

Trial court found on facts and evidence that the allegation of fraud cannot be sustained. Exhibit A3, copy of the impugned assignment deed would state that it is an assignment of property referred to therein in favour of the respondent. No sufficient evidence is let in by the appellant to show that it was a security transaction as claimed by the appellant. A further fact to be noted is that if appellant had learned about the (alleged) fraud by 15.11.1999, she would not have waited till June, 2002 to file the suit. In the circumstances finding of the trial and first appellate courts that the allegation of fraud is not established and that the assignment deed cannot be challenged being one of fact based on the evidence involves no substantial question of law requiring a decision by this Court. I must also notice that the impugned assignment deed is a registered document and it carries the initial presumption that it is validly and duly executed. I find no substantial question of law involved, requiring a decision by this Court.

¶41

R.S.A. No. 426 of 2012

¶42

-: 6 :-

¶43

Second Appeal is dismissed.

¶44

All pending Interlocutory Applications will stand dismissed.

¶45

THOMAS P. JOSEPH, JUDGE.

¶46

vsv

Raichel Raju v. Hilari

Case brief

What is this about?

What did the court decide?

Raichel Raju v. Hilari

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Ramu Alias Raman Vs Jayaprakasan

Narayanan Aravindaksha Kartha Vs D.K.Venkiteswara Shenoy

Kunjamma Vs Eldose

George Vs George

Suresh Vs Antony

Poulose Vs M.J.Anto