Kerala High Court
Venu Nair vs Thiyalandi Poyil E.K.Raghavan Nair on 8 October, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 8TH DAY OF OCTOBER 2012/16TH ASWINA 1934
RSA.NO. 189 OF 2012 ()
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AS.24/2010 OF SUB COURT, QUILANDY
OS.205/2007 OF MUNSIFF COURT, QUILANDY
APPELLANT/APPELLANT/PLAINTIFF:
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VENU NAIR, AGED 50 YEARS
S/O. KUNHIRAMAN NAMBIAR, RESIDING AT THYTHOTTATHIL
KEEZHARIYUR AMSOM, DESOM, P.O.
KEEZHARIYUR, KOYILANDY TLAUK, KOZHIKODE DISTRICT.
BY ADV. SRI.P.P.JNANASEKHARAN
RESPONDENTS/RESPONDENTS/DEFENDANTS:
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1. THIYALANDI POYIL E.K.RAGHAVAN NAIR, AGED 71 YEARS
S/O. SREEDEVIKUTTY AMMA, RESIDING AT 'SABAREESH'
KEEZHARIYUR AMSOM, DESOM, P.O.
KEEZHARIYUR, KOYILANDY TLAUK, KOZHIKODE DISTRICT.
2. BALAKRISHNANNAIR, AGED 60 YEARS
S/O. KALYANI AMMA,RESIDING AT PAROL
KEEZHARIYUR AMSOM, DESOM, P.O.
KEEZHARIYUR, KOYILANDY TLAUK, KOZHIKODE DISTRICT.
3. SANTHAMMA, AGED 56 YEARS
HOUSE WIFE, RESIDING AT KAVUMPURATH
ARIKKULAM AMSOM DESOM
P.O. ARIKKULAM KOYILANDY TALUK
KOZHIKODE DISTRICT.
4. NARAYANA NAIR , AGED 53 YEARS
AGRICULTURIST,RESIDING AT PAROL,KEEZHARIYUR AMSOM
DESOM, P.O., KEEZHARIYUR
KOYILANDY TLAUK, KOZHIKODE DISTRICT.
R.S.A. No.189 of 2012
5. BABU NAIR, AGED 48 YEARS
RESIDING AT THYTHOTTATHIL,KEEZHARIYUR AMSOM, DESOM
P.O., KEEZHARIYUR, KOYILANDY TLAUK
KOZHIKODE DISTRICT.
6. THANKAMANI, AGED 44 YEARS
HOUSE WIFE, RESIDING AT REMYA NILAYAM
MADATHIL PARAMBATH, PANANGAD AMSOM, DESOM
P.O. KANNADI POYIL,KOYILANDY TALUK
KOZHIKODE DISTRICT.
7. SURENDRAN NAIR, AGED 40 YEARS
RESIDING AT THYTTOTHIL,KEEZHARIYUR AMSOM, DESOM
P.O., KEEZHARIYUR, KOYILANDY TLAUK
KOZHIKODE DISTRICT.
8. REMESAN NAIR, , AGED 38 YEARS
RESIDING AT THYTHOTTATHIL, KEEZHARIYUR AMSOM, DESOM
P.O., KEEZHARIYUR, KOYILANDY TLAUK
KOZHIKODE DISTRICT.
9. PREETHA, AGED 39 YEARS
D/O. RAMACHANDRAN NAMBIAR, MADAYOTH CHALIL HOUSE
CHALIKKARA.P.O., VELLOOR.
10. BINDU, AGED 38 YEARS
D/O. RAGHAVAN NAIR, RESIDING AT 'SABAAREESH'
KEEZHARIYUR AMSOM, DESOM, P.O.
KEEZHARIYUR, KOYILANDY TLAUK, KOZHIKODE DISTRICT.
11. SAPNA, AGED 35 YEARS
S/O. RAGHAVAN NAIR, RESIDING AT 'SABAREESH'
KEEZHARIYUR AMSOM, DESOM, P.O.
KEEZHARIYUR, KOYILANDY TLAUK, KOZHIKODE DISTRICT.
BY ADV. SRI.R.K.MURALEEDHARAN R1, 10 & 11
BY ADV. SRI.S.DILEEP R2 TO R7
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 08-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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R.S.A. No.189 of 2012
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Dated this the 08th day of October, 2012
J U D G M E N T
The Second Appeal arises from the judgment and decree of the Sub Court, Koyilandy in A.S. No.24 of 2010 confirming the judgment and decree of the Munsiff's Court, Koyilandy dismissing O.S. No.205 of 2007.
2. The appellant-plaintiff filed the suit demanding partition of the suit property. He claimed that the suit property belonged to his father, the late Kunhiraman Nambiar and the 1st respondent-1st defendant as per Ext.A1, assignment deed dated 09.05.1969 executed by Naderi Beeran who acquired title and possession of the said property as per Ext.A2, assignment deed dated 31.03.1948. Plaintiff claimed that on the death of Kunhiraman Nambiar, his undivided half share in the said property devolved on himself and others and thus he is entitled to partition and separate possession of his 1/18 share in the said property.
3. The 2nd defendant contended that Kunhiraman Nambiar R.S.A. No.189 of 2012 -: 2 :- and consequently on his death the plaintiff and other legal legal heirs of Kunhiraman Nambiar got no right, title, interest or possession of the suit property. He claimed that he acquired leasehold right over the suit property under an oral lease in the year, 1960 from Elampilad Paradevatha Devaswom, the jenmy of the property with obligation to pay rent at the rate of 88 paise per year. While so, suo moto proceeding was initiated concerning tenancy of the 1st defendant. In that proceeding the Land Tribunal (for short, "the Tribunal") found in favour of the claim of tenancy raised by the 1st defendant and pursuant to the order of assignment, Ext.B1, purchase certificate dated 18.12.1978 was issued to the 1st defendant. Thus the 1st defendant became the absolute owner in possession and enjoyment of the property. While so, he executed Ext.B8, gift deed in favour of defendants 11 and 12 on 18.03.1993 concerning the suit property. Defendants 11 and 12 also raised similar contentions.
4. The trial court found that the plaintiff could not substantiate the title he claimed over the suit property and that even the conduct of Kunhiraman Nambiar during his lifetime revealed that he had no right, title, interest or possession of the suit property. Consequently, the suit was dismissed. That R.S.A. No.189 of 2012 -: 3 :- dismissal was confirmed by the learned Sub Judge. Hence this Second Appeal.
5. Appellant-plaintiff filed I.A. No.405 of 2011 along with the Second Appeal requesting to receive in evidence a set of documents which according to the plaintiff would disprove the case of the defendants and prove the title claimed by the plaintiff. The learned counsel for the plaintiff contended that having regard to the circumstances which prevailed during the time the suit was tried in the trial court, plaintiff was not able to obtain copies of relevant documents from the appropriate authority and only now he could obtain those documents. Those documents are necessary and essential to decide the dispute. Hence it is requested that the said documents may be admitted in evidence. It is also contended that the findings entered by the courts below regarding title and possession is erroneous. It is argued that though it is the contention of the 1st defendant that under an oral lease he got possession of the property in the year 1960, no document is produced to show either that he had paid rent or revenue for the suit property from 1960 until 1973. The documents produced only show payment of revenue for the suit property during 1973 to 1977 (Exts.B2 to B7). It is also argued R.S.A. No.189 of 2012 -: 4 :- that Exts.A1 and A2 along with the documents produced along with I.A. No.405 of 2012 would show that Elampilad Paradevatha Devaswom had no right over the property at any point of time. Instead, the property belonged to Andicheri Moideen and Kuttathuveettil Appukkuttan Nair who executed Ext.A2, assignment deed in favour of Naderi Beeran on 31.03.1948. The said Beeran has executed Ext.A1, assignment deed in favour of Kunhiraman Nambiar and the 1st defendant. It is argued that in the circumstances no weight could be given to Ext.B1, purchase certificate obtained behind the back of Kunhiraman Nambiar and his predecessors-in-interest. It is further argued that the documents produced along with I.A. No.405 of 2011 would show that the 1st defendant and before that, his predecessor-in-interest were paying revenue for the suit property. In the circumstances, it is contended that the finding of the trial court regarding title cannot stand. The learned counsel placed reliance on Section 48 of the Transfer of Property Act dealing with priority of rights created by transfer. It is pointed out that even the conduct of the 1st defendant in the Tribunal would show that he was not aware as to who exactly was the Jenmy of the property as is evident from Annexure A9 series (produced in the Second R.S.A. No.189 of 2012 -: 5 :- Appeal).
6. The learned counsel for the contesting defendants argued that there is nothing to show that Ext.A1 had taken effect assuming that it was validly executed. It is argued that there is no evidence to show that properties belonged to Andicheri Moideen and Kuttathuveettil Appukuttan Nair so that they could convey right over the property to Naderi Beeran as per Ext.A2 and the latter could execute Ext.A1 in favour of Kunhiraman Nambiar and the 1st defendant. It is argued that there is no averment in the plaint that Ext.B1, purchase certificate was obtained by fraud. Therefore the finding of the Tribunal that the 1st defendant is the cultivating tenant of the suit property must stand. A further argument is that even the documents produced by the plaintiff in the Second Appeal along with I.A. No.405 of 2011, apart from the fact that it could not be received as additional evidence invoking Rule 27 of Order XLI of the Code would not also show that the 1st defendant or the predecessors-in- interest he claims had right and possession of the property. Hence those documents cannot be allowed to be admitted in evidence at the fag end of the proceeding. At any rate, Kunhiraman Nambiar is disabled from challenging title of the 1st R.S.A. No.189 of 2012 -: 6 :- defendant transferred to the defendants 11 and 12 as per Ext.B8 dated 13.08.1993 since Kunhiraman Nambiar is an attestor in Ext.B8. According to the learned counsel, Kunhiraman Nambiar and the 1st defendant are closely related and hence Kunhiraman Nambiar while attesting Ext.B8, must be imputed with knowledge of its contents. It is argued that it is while Kunhiraman Nambiar was alive that Ext.B16, settlement deed was executed in his family concerning his family property but without making any reference to the suit property. Further argument is that even in the case relating to excess land against Kunhiraman Nambiar he did not make mention of the suit property as belonging to him. In the circumstances courts below are justified in finding that neither Kunhiraman Nambiar nor the plaintiff acquired title over the suit property.
7. I have referred to Exts.A1 and A2. As against Exts.A1 and A2 is Ext.B1, purchase certificate issued in favour of the 1st defendant. No doubt, an assignment order passed and purchase certificate issued without issuing notice to persons who are entitled to individual notice would not bind them nor is conclusive against them. To attract that principle it must be shown that Kunhiraman Nambiar or any of his predecessors-in- R.S.A. No.189 of 2012 -: 7 :- interest as the plaintiff claims were entitled to get individual notice from the Tribunal. For that, it must be shown that Kunhiraman Nambiar and his assignors had any right or over the property.
8. True Ext.A2, assignment deed in favour of the assignors of Ext.A1 is dated 31.03.1948. But no evidence is produced to show that the assignors of Ext.A2 had title and interest over the property. Plaintiff has produced along with I.A. No.405 of 2011 Annexure-A3, a copy of mortgage deed of the year, 1965 executed by Naderi Beeran (executant of Ext.A1) in favour of the Government for availing agricultural loan. There, the property mentioned is 5 acres in R.S.No.77/1 (there is no dispute that the said resurvey number concern the suit property as well). But in other respects Annexure-A3 is not admitted by the contesting defendants. Annexure-A5 is the encumbrance certificate which shows that Andicheri Moideen and Kuttathuveettil Appukkuttan Nair had executed Ext.A2 in favour of the Naderi Beeran who in turn executed Ext.A1 in favour of Kunhiraman Nambiar and the 1st defendant. Annexure-A6 is a sketch prepared by the Village Officer where there is reference to the property referred therein being in the joint possession of R.S.A. No.189 of 2012 -: 8 :- Kunhiraman Nambiar and the 1st defendant following Ext.A1, assignment deed. Plaintiff has also produced in this appeal as Annexures-A1 and A2, two receipts of the year, 1966 and 1967 to show that Naderi Beeran had paid revenue for the property, according to the plaintiff, the suit property. On referring to Annexures-A1 and A2 it is seen that there is no mention of the extent, survey number or other details to say which property Annexures-A1 and A2 concern. Moreover it is seen that Naderi Beeran has only effected payment of revenue and the pattadar of the property is stated as 'Chappan Adiyodi'. Who is Chappan Adiyodi is not clear even as per the contention of the plaintiff.
9. Coming back to Ext.A1, assignment deed in favour of Kunhiraman Nambiar and the 1st defendant, the plea raised by the 1st defendant is that he learned about Ext.A1 only after the institution of the suit. He also contended that Ext.A1 at any rate is a sham document which has not taken into effect.
10. So far as Ext.B1 is concerned, I stated that it will not assume conclusive character against persons to whom individual notice of the proceeding was required to be issued but not issued. I also stated that it is not shown that Kunhiraman Nambiar or his predecessors-in-interest as the plaintiff says are parties to whom R.S.A. No.189 of 2012 -: 9 :- notice was required to issue in the said proceeding. Learned counsel for the plaintiff has invited my attention to Annexure-A9 series to contend that even the 1st defendant was in a dilemma as to who exactly was the Jenmy. Annexure-A9 series are denied by the 1st defendant.
11. It has come in evidence that during the time the suo moto proceeding was initiated, the 1st defendant was at Bombay and Kunhiraman Nambiar was looking after the property on his behalf. It is relevant to note that referring to the oral lease in favour of the 1st defendant and his acquiring jenm right as per Ext.B1, purchase certificate the 1st defendant executed Ext.B8, gift deed in favour of defendants 11 and 12 on 18.03.1993. This is not disputed and D.W.2, the son of Kunhiraman Nambiar admitted that his father is an attester in Ext.B8.
12. True that normally, an attester to a document cannot be imputed with knowledge of contents of the document. But that rule has no application when the parties to the document and the attester are closely related. It is admitted that Kunhiraman Nambiar is the husband of the neice of the 1st defendant. According to the learned counsel for the plaintiff, that is not so close a relationship so that, Kunhiraman Nambiar should be R.S.A. No.189 of 2012 -: 10 :- imputed with knowledge of contents of Ext.B8. I am unable to accept that contention. If actually Kunhiraman Nambiar was claiming any right over the property as per Ext.A1 (as the plaintiff now says) he would have been unaware of the contents of Ext.B8 and would not have been an attester in Ext.B8. Kunhiraman Nambiar has voluntarily attested Ext.B8 whereby the 1st defendant has conveyed his right, title, interest and possession of the suit property to defendants 11 and 12. Exhibit B1 was obtained during the lifetime of Kunhiraman Nambiar. Exhibit B8 shows that he was aware of Ext.B1. He has not chosen to challenge Ext.B1. Hence the plaintiff cannot now challenge Ext.B1. A further fact I must notice is that Ext.B8 is dated 18.03.1993 and, Kunhiraman Nambiar died only in the year, 2002. From the date of Ext.B8 (18.03.1993) till his death in the year, 2002 Kunhiraman Nambiar did not raise even his little finger against the (purpoted) assignment of the suit property as per Ext.B8.
13. The learned counsel for the plaintiff tried to impress me by saying that due to the unfortunate and unforseen death of a son of Kunhiraman Nambiar sometime prior to 18.03.1993 he was in a bereaved situation and the 1st defendant exploited that R.S.A. No.189 of 2012 -: 11 :- situation by getting Ext.B8 attested by Kunhiraman Nambiar. Assuming so for the time being, I am unable to think that Kunhiraman Nambiar was in that bereaved situation until his death in the year, 2002 so that for about nine years he did not challenge Ext.B8.
14. Exhibit B16, settlement deed was executed in the family of Kunhiraman Nambiar. Kunhiraman Nambiar and the plaintiff are parties to Ext.B16. There, while the properties of Kunhiraman Nambiar are settled in the way referred to therein, no reference is made to his right in the suit property. If Kunhiraman Nambiar had half right in the suit property as the plaintiff claims, normally one expected that right also to be disposed of as per Ext.B16. Nothing of that sort has happened.
15. In the proceeding before the Taluk Land Board concerning excess land (allegedly) in the possession of Kunhiraman Nambiar also he did not make any reference to his having half right in the suit property. Learned counsel for the plaintiff submitted that all the properties of Kunhiraman Nambiar are not referred to in the said proceeding. Whatever that be, circumstances which I have stated above including non-mention of the half right plaintiff says, Kunhiraman Nambiar had in the R.S.A. No.189 of 2012 -: 12 :- property in the proceeding before the Taluk Land Board is yet another circumstance that goes against the contention of the plaintiff.
16. True that so far as the right claimed by the 1st defendant is concerned, he did not produce receipts for payment of rent/receipt from 1960 to 1972. That defect if any on the part of the defendants is cured by Ext.B1 and the evidence contesting defendants have produced for payment of revenue from 1972 to 1978.
17. In support of the claim made by the plaintiff, no oral evidence was adduced. Even the plaintiff did not mount the witness box to speak to his case and face cross-examination. On the other hand, the 1st defendant has given evidence as D.W.1 referring to the oral lease in his favour.
18. Having regard to the above I am inclined to think that the finding entered by the trial court and confirmed by the first appellate court that the plaintiff has not succeeded in proving title is one based on fact and the oral and documentary evidence. On a finding of fact based on oral and documentary evidence, a substantial question of law would arise only when that finding is not supported by any evidence, is against the evidence or is on a R.S.A. No.189 of 2012 -: 13 :- perverse appreciation of evidence. No such circumstance arises in this case.
19. Having regard to the facts and circumstances I am not inclined to think that at this stage I.A. No.405 of 2011 to receive additional evidence should be allowed. Even those documents would not salvage the case of the plaintiff.
20. On hearing learned counsel and going through the judgments under challenge I do not find any substantial question of law involved in this appeal requiring decision by this Court.
Second Appeal is dismissed.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
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