Kerala High Court
Pappu vs Karthu on 10 March, 2020
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941
Ex.SA.No.1 OF 2015
AGAINST THE JUDGMENT DATED 03.09.2014 IN AS NO.38/2014 OF SUB
COURT, PERUMBAVOOR, CONFIRMING ORDER DATED 21.05.2014 IN EA
NO.30/2012 IN EP NO.134/2010 IN OS 15/1989 OF MUNSIFF'S COURT,
PERUMBAVOOR
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APPELLANT/APPELLANT/ADDITIONAL 6TH JUDGMENT DEBTOR:
1 PAPPU, (DIED; LEGAL HEIR IMPLEADED),
AGED 86 YEARS,
S/O.CHATHAN AND KUNJAMBA, MORKKOOTTUKOOTAM HOUSE,
KALAPPARA, ALATTUCHIRA PO., PIN CODE-683 544,
KODANAD VILLAGE, KUNNATHUNADU TALUK.
* ADDL. 2ND APPELLANT
2 PONNAPPAN,
S/O.PAPPU,AGED 63, RESIDING AT KALAPPARA HOUSE,
MYTHRI NAGAR, AKATHETHARA P.O., PALAKKAD,
PIN-678 008.
(LEGAL HEIR OF DECEASED SOLE APPELLANT IS IMPLEADED AS THE
ADDITIONAL 2ND APPELLANT AS PER ORDER DATED 16.03.2018 IN
IA.553/2018.)
BY ADVS.
SRI.K.C.ELDHO
SRI.JIJO THOMAS
RESPONDENT/RESPONDENT/DECREE HOLDER:
KARTHU, AGED 65,W/O.KANNAN,
MANEKKATTU HOUSE,KODANAD KARA, ALATTUCHIRA P.O.,
PIN CODE-683 544, KODANAD VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.
R1 BY ADV. SRI.GEORGE VARGHESE KIZHAKKAMBALAM
R1 BY ADV. SRI.V.RAJENDRAN PERUMBAVOOR
THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON
09-03-2020, THE COURT ON 10-03-2020 DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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Ex. S. A. No.1 of 2015
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Dated this the 10th day of March, 2020
JUDGMENT
The obstruction petition filed by the appellant under Order XXI Rule 97 of the Code of Civil Procedure was dismissed concurrently by the courts below, against which this Execution Second Appeal.
2. The decree under execution was obtained by Karthu, the respondent herein against one Kunjamba and her children excluding the appellant herein, for recovery of possession on the strength of title. The decree schedule is 42.49 Ares of property. The respondent herein-decree holder- Karthu claimed that the property belonged to her father Kurumban and on his death it devolved upon her, she being his daughter. Kunjamba also traced title to Kurumban, but contended that she is the daughter of Kurumban. The suit was decreed upholding the claim of Karthu.
3. In the execution proceedings, the appellant herein filed EA 30/2012 under Order XXI Rule 97 of Ex. S. A. No.1 of 2015 :- 2 :-
the Code of Civil Procedure, claiming independent right over the property. The appellant who is one of the sons of Kunjamba, was not a party to the suit. He claimed title and possession over the property.
4. The courts below held against the claim of the appellant.
5. Heard learned counsel Sri.K.C.Eldho on behalf of the appellant-obstructor and Sri.V.Rejendran (Perumbavoor) on behalf of the respondent-decree holder, on the following substantial question of law:-
"Did the Courts below fail to consider the independent title claimed by the appellant?"
6. The obstructor-appellant is one of the sons of Kunjamba, the defendant in the suit. The obstruction petition is filed not in the capacity as a legal heir of Kunjamba or claiming under Kunjamba. Though a legal heir of Kunjamba, the obstructor is entitled to claim independent rights in himself dehors her rights as a legal heir of Kunjamba. Therefore, the mere fact that there is a Ex. S. A. No.1 of 2015 :- 3 :-
decree against the predecessor of the obstruction petitioner-appellant will not make the appellant bound by the decree. However, the appellant- obstructor should prove his independent rights over the property. Once the obstructor establishes independent right, then the question will arise as to whether it is the decree holder or the obstructor who has a better title over the property in question. With the above in mind, the materials available on record is to be considered.
7. That the title over the property originally vested with Kurumban, the ancestor, was not in dispute in the suit. The dispute, which was between the respondent decree holder and Kunjamba the predecessor of the obstructor was, as to, who among them is the daughter of Kurumban. The suit was filed claiming the property on the title of Kurumban and as the daughter of Kurumban. Kunjamba, the predecessor of the obstructor-the defendant in the suit, claimed that she is the daughter of Kurumban and thus entitled to the property. The lis was fought up to the Apex Court affirming that the Ex. S. A. No.1 of 2015 :- 4 :-
respondent-decree holder is the daughter of Kurumban and entitled to the property.
8. Ext.B1 marked in the suit is a Settlement Deed executed by Kurmban regarding a portion of a larger extent of property in favour of Kunjamba's sister's husband. Ext.B2 is the basic tax register and Ext.B3 marked in the suit is the thandapper account. This apparently proves that Kurumban was the title holder of the property.
9. The obstruction petitioner claims to be the owner in possession of 54.40 Ares of property which takes in the decree schedule property also. Pertinently, the obstruction petition is silent as to how he got title over the property. To prove his title he relies on Ext.A1 revenue records, Ext.A8 thandapper register, Ext.A9 basic tax register, Exts.A2 and A3 ownership certificate regarding buildings, Ext.A4 building tax assessment, Exts.A5 to A7 voters list for the period ranging from 1953 to 1975 and Ext.A10 election identity cards. The question is, whether based on the above documents, the obstructor has established a better title than Ex. S. A. No.1 of 2015 :- 5 :-
that claimed by the decree holder viz. the title of Kurumban. It is trite that entries in revenue records cannot confer title and the same cannot be the basis for title. The documents produced by the obstructor could at best be taken to indicate that he is residing in the property. Here it is not to be lost sight of that, the obstructor-appellant is one of the sons of Kunjamba, the defendant in the suit, and that there is a decree for recovery of possession against her.
10. The decree holder had earlier filed another execution petition as EP 107/1994 seeking delivery of the property. Therein the appellant-obstructor had filed EA 108/97 under Order XXI Rule 97 of the Code of Civil Procedure raising obstruction. A copy of the said application is marked as Ext.C4. In Ext.C4 the obstructor claimed right over the property as a legal heir of Kunjamba. As noticed, the claim of Kunjamba over the property as the daughter of Kurumban was held against in the suit. The appellant-obstructor did not prosecute Ext.C4 (EA 108/97) and the application was dismissed for Ex. S. A. No.1 of 2015 :- 6 :-
default on 05.09.2017. The appellant-obstructor denied of having filed Ext.C4 (EA 108/97) and also the vakalath therein. Execution court took evidence on the same and found that the denial is not bona fide. Since the counsel was no more, the clerk who was attached to his office was examined as DW1. The execution court noticed that while confronted with the affidavit filed along with the present obstruction petition, in his anxiety to deny the signatures in the earlier obstruction petition and Vakalath he denied the signature. So also he denied the signature in the notice served on the present execution petition. On appreciating the evidence, the execution court found that EA 108/97 was filed by he present obstructor - appellant. The said finding was affirmed by the first appellate court. The findings are based on materials and does not call for any interference in the second appeal. Suffice to notice that in Ext.C4, the appellant claimed titled under Kunjamba.
11. In the first appeal, the respondent-decree holder produced Ext.B2, the plaint in OS 32/12 of Ex. S. A. No.1 of 2015 :- 7 :-
the Sub Court, Perumbavoor, which is a suit filed by the obstructor herein as the plaintiff challenging the decree in the present suit, seeking a declaration that the decree herein is null and void and claiming title over the property by adverse possession. Even in Ext.B2 plaint, the plaintiff admits the basic title of Kurumban and claims to have been come into possession after the death of Kurumban. The suit was subsequently withdrawn. The filing of Ext.B2 suit (OS 32/12) is admitted by the obstructor and it has been mentioned in the present obstruction petition. Admissions in pleadings are the best form of evidence and is substantive evidence though not conclusive. Admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under S. 145 of the Evidence Act is very much different from the Ex. S. A. No.1 of 2015 :- 8 :-
purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence. [Bharat Singh and others v. Mst. Bhagirathi (AIR 1966 SC 405), Biswanath Prasad and Others v. Dwarka Prasad and Others (1974 KHC 374)]. Since the obstructor admits the filing of Ext.B2 plaint, the admission therein regarding the title of Kurumban is of significance.
12. The claim of the obstructor, as noticed supra, is solely on the basis of revenue records. There is no plea as to how he obtained title over the property. The original title of Kurumban has been established, and as noticed above, is admitted. The respondent decree holder has been held to be the daughter of Kurumban, who is entitled to the property of Kurumban. There is no Ex. S. A. No.1 of 2015 :- 9 :-
plea that the obstructor has acquired title over the property by adverse possession and limitation. In the circumstances, the courts below were right in finding better title over the property with the respondent-decree holder.
13. The contention of the appellant-obstruction petitioner that his rights have not been adjudicated by the courts below with reference to the materials on records is not correct. The courts below have referred to the rival claims of title and also the acknowledgment by the obstructor of the title of Kurumban. The substantial question of law is thus answered against the appellant.
14. The appreciation of evidence by the courts below cannot be said to be perverse. The order of dismissal of the obstruction petition warrants only an affirmation and I do concur.
15. It is to be noted that the decree schedule property is only 42.49 Ares whereas the schedule to the obstruction petition relates to 54.40 Ares. Admittedly, there has been no identification of the decree schedule property at the trial stage. Ex. S. A. No.1 of 2015
:- 10 :-
Necessarily the identification is to be done in the execution stage. Such identification shall be done by the execution court prior to effecting delivery of the property.
With the above observations, the execution second appeal is dismissed. No costs.
Sd/-
SATHISH NINAN JUDGE kns/-
//True Copy// P.S. to Judge