IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 FAO.No. 187 of 2008() --------------------- AS.78/2002 of SUB COURT,NEYYATTINKARA OS.395/2001 of I ADDL.M.C.,NEYYATTINKARA .................... APPELLANT/RESPONDENT/PLAINTIFF -------------------------------------------------- SASIDHARAN, S/O.PONNU PANICKER, AGED 59, 'SOUMYA', PARANKIMAMVILA, MARANALLOOR DESOM, MARANALLOOR VILLAGE.(OORATTAMBALAM, OORUTTAMBALAM. P.O.,BALARAMAPURAM, THIRUVANANTHAPURAM) BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS:ADDL. APPELLANTS : ------------------------- 1. GEETHA, W/O.LATE VISWANATHAN VISWA BHAVAN, OORUTTAMBALAM MARANALLOOR VILLAGE, MALAYINKEEZHU DESOM. 2. ARUN, S/O.LATE.VISWANATHAN,VISWA BHAVAN, OORUTTAMBALAM MARANALLOOR VILLAGE, MALAYINKEEZHU DESOM. 3. AISWARYA, D/O.LATE.VISWANATHAN VISWA BHAVAN, OORUTTAMBALAM MARANALLOOR VILLAGE, MALAYINKEEZHU DESOM.(RESPONDENTS 2 AND 3 ARE MINORS, REPRESENTED BY MOTHER AND GUARDIAN IST RESPONDENT, GEETHA.) ADV. SRI.S.V.RAJAN FOR R1 SRI.S.ARUN RAJ FOR R1 SMT.SHIBI. K.P. FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA.NO.3024/08 IN FAO 187/08 DISMISSED 30/3/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ F.A.O.NO.187 OF 2008 ------------------------------------------ Dated 30th March 2009 JUDGMENT Plaintiff in O.S.395/2001 on the file of Additional Munsiff court, Neyyattinkara is the appellant. Respondents are additional respondents 2 to 4 who were impleaded in the first appeal as legal heirs of the deceased appellant in the first appeal, the sole defendant in the suit. Appellant instituted the suit for recovery of possession on the strength of title. Case of the appellant was that plaint schedule property was in the possession of deceased Pankajakshy as per mortgage deed of 1954 and later Pankajakshy assigned her right in favour of the appellant under Ext.A1 sale deed dated 3/5/1989 and appellant has title to the plaint schedule property. It was contended that sole defendant is the brother of husband of Pankajakshy and after Ext.A1 sale deed appellant was working in Delhi and during his absence Pankajakshy was in possession of the property on his behalf and he returned back in 1999 and Pankajakshy FAO 187/08 2 died in 1993 and thereafter sole defendant trespassed into the property and reduced it into his possession and therefore appellant is entitled to recover possession of the property on the strength of title. Sole defendant resisted the suit admitting the mortgage right of Pankajakshy. It was contended that for redemption of mortgage, mortgagor had filed a suit and when that suit was pending there was a settlement and pursuant to the settlement suit was dismissed and defendant purchased the property under Ext.B3 from the mortgagor and since then defendant has been in possession of the property on jenm right and Ext.A1 sale deed was not executed by Pankajakshy and appellant did not derive any title thereunder and therefore suit is to be dismissed. Subsequently the written statement was got amended incorporating a plea that even if appellant has title, it was lost by adverse possession and limitation. 2. Learned Munsiff after framing necessary issues on the evidence of PW1, Dws.1 to 3 Exts.A1 to A3 and B1 to B9 granted a decree in favour of the appellant finding that appellant has title to the plaint schedule property under Ext.A1 and the title was FAO 187/08 3 not lost by adverse possession. Defendant challenged the judgment before Sub court, Neyyattinkara in A.S.78/2002. On the death of sole appellant, respondents herein, his widow and children were impleaded as additional appellants 2 to 4. In the appeal additional appellants filed I.A.753/2006 an application for amendment of the written statement to incorporate a plea that Ext.A1 sale deed is vitiated by fraud on registration and the Sub Registrar who registered the document has no jurisdiction to register the same and therefore it is invalid. Learned Sub Judge as per order dated 27/9/2006 dismissed the application. Respondents also filed I.A.1708/2007, an application under Rule 27 order XLI of Code of Civil Procedure to receive certain documents. That application was heard along with the appeal. Learned Sub Judge as per the impugned judgment found that the trial court has not framed necessary issues and when it was contended in the written statement that Ext.A1 sale deed is a fraudulent document, the trial court should have decided whether it is a fraudulent document. Learned Sub Judge also found that Ext.A1 sale deed was registered is Kazhakuttam sub registry office and property covered by Ext.A1 lies in Maranallur FAO 187/08 4 village which is within the jurisdiction of sub registry Maranallur and another item of the property was included in Ext.A1 sale deed which lies in Kulathummal village to get the document registered before sub registry Kazhakuttom and there is no evidence to prove that executant of Ext.A1 had any right over that property and therefore remanded the suit after framing additional issue “whether there is any fraud on registration of Ext.A1 deed and whether Ext.A1 is void under law”. Learned Sub Judge also allowed I.A.1708/2007 finding that as both sides have produced documents and invoking provisions of “Section 107 and Order IV Rule 5 (25) CPC”. It is challenged in this appeal. 3. Appeal was admitted on the following substantial questions of law. 1) Whether the first appellate court was justified in framing additional issue, when the application for amendment to incorporate the new plea in the written statement was dismissed. 2) Whether first appellate court was justified in receiving additional documents filed in FAO 187/08 5 I.A.1708/2007 and remand the suit without considering the appeal on merits. 4. Learned counsel appearing for appellant and respondents were heard. 5. It is admitted case that plaint schedule property was outstanding in the possession of Pankajakshy under a registered mortgage deed 2562/1124. Madhavan Pilla, the mortgagor had filed O.S.3/1979 before Additional Munsiff court, Neyyattinkara for redemption of the mortgage impleading Pankajakshy as first defendant and the appellant as the second defendant and another tenant as third defendant. Under Ext.B1 judgment dated 1/2/1985, that suit was dismissed for default. The mortgagee Pankajakshy under Ext.A1 sale deed assigned her right in favour of the appellant on 3/5/1989. It is based on Ext.A1 the suit was filed claiming recovery of possession on the strength of title contending that as appellant was in Delhi Pankajakshy, the assignor under Ext.A1 was looking after the property on his behalf and after her death in 1993 and deceased defendant who is the brother of the husband of Pankajakshy trespassed into the property and therefore FAO 187/08 6 appellant is entitled to recover possession on the strength of title. Case of the defendant in his written statement and before the trial court was that while property was outstanding in the possession of Pankajakshy a suit was filed by the mortgagor for redemption and there was a settlement and as a result the suit was dismissed and the jenm right was purchased by the defendant under Ext.B3 sale deed and therefore he has right and title to the property. It was also contended in paragraph 7 of the written statement that Pankajakshy had not sold the property to appellant as she had no right to sell and the document relied on by the appellant is a fraudulent document and by that document appellant did not derive any title. When defendant, who was the sole appellant in the first appeal died and his legal heirs were impleaded as additional appellants they filed I.A.753/2006 under Order VI Rule 17 of Code of Civil Procedure to amend the original written statement filed by the sole defendant, to incorporate a plea that Ext.A1 was fraudulently got registered before a sub registrar who had no jurisdiction over the property registered and as it was fraudulently registered it is void. As per order FAO 187/08 7 dated 27/9/2006 learned Sub Judge dismissed that application showing valid reasons. Respondents who were additional appellants did not challenge that order and instead submitted to the order. Subsequently when the appeal was taken up for arguments I.A.1708/2007 was filed to receive documents, in support of the contentions sought to be raised by the application for amendment of the written statement and I.A.1090/2007 an application to frame additional issue based on that plea. It is seen from the records that both petitions were taken up together and disposed along with judgment. 6. Judgment of the first appellate court shows that learned Sub Judge did not appreciate either the facts or the evidence and the applications filed by additional appellants in the first appeal were not properly disposed. Learned Sub Judge found in paragraph 8 of the impugned judgment that Ext.A1 shows that the property lies in Maranallur village and so sub registry Maranallur alone has jurisdiction to register the document and document is registered at sub registrar office, Kazhakuttom. But Ext.A1 shows that the document was not registered at sub registrar office, Kazhakkuttom FAO 187/08 8 and instead was registered at sub registrar office at Kattakada. It is not known from where learned Sub Judge got the information that document is to be registered at sub registrar office, Maranallur. In fact whether there is a sub registry office at Maranallur itself is a moot question. Learned Sub Judge failed to note that it is the case of the sole defendant and which is being re-iterated by respondents that the jenm right of the plaint schedule property was purchased by deceased defendant under Ext.B3 sale deed. Ext.B3 sale deed is not seen registered either at the so called sub registry, Maranallur or sub registry, Kattakada. Instead it is registered at Sub Registry, Thiruvananthapuram. It is clear that first appellate court did not go through the evidence. A reading of the judgment shows that learned Sub Judge was unfortunately confused and committed many mistakes. 7. Though learned Sub Judge framed additional issue viz. whether there is any fraud on registration of Ext.A1 sale deed and whether Ext.A1 is void under law, based on the argument of the learned counsel appearing for respondents that it was registered not before the proper sub registry first, appellate FAO 187/08 9 court omitted to take note of the fact that there was no plea in the written statement on this aspect. Though an additional plea which was sought to be introduced by filing I.A.753/2006, when I.A.753/2006 was dismissed denying opportunity to incorporate the plea regarding registration of the document, an additional issue was framed as if there is such a plea in the written statement. In the absence of such a plea that point or issue will not arise for consideration. Similarly application filed under Rule 27 Order XLI of Code of Civil Procedure was received by the learned Sub Judge as follows. “So the petitions from both sides to admit evidence is allowed and an addition issue is framed invoking the provisions under S.107 and O 4(25) CPC.” There is no Rule 25 in Order IV of Code of Civil Procedure order IV does not deal with reception of additional evidence. Section 107 of Code of Civil Procedure only deals with general provisions of powers of appellate court. The procedure for receiving additional evidence is provided under Rule 27 Order XLI. FAO 187/08 10 Appellate court can receive additional evidence only as provided under Rule 27 of Order XLI of Code of Civil Procedure. If that be so, the Sub Jude should be satisfied that either the provisions of clause (a) or clause (b) of sub Rule 1 of Rule 27 is satisfied. Without considering this aspect, learned Sub Judge should not have received the additional evidence, as has been done in this case. In such circumstances, judgment of the first appellate court is unsustainable and is to be set aside with a direction to dispose the appeal afresh after hearing the parties on merits. 8. Appeal is allowed. Judgment in A.S.78/2002 is set aside. The first appeal is remanded to the sub court, Neyyattinkara for fresh disposal in accordance with law. Orders passed by learned Sub Judge in I.A.1708/2007 and 1090/2007 are also set aside. As the additional issues sought to be raised in I.A.1090/2007 is solely based on the plea, which was disallowed in I.A.753/2006, additional issue as framed should not have filed, I.A.1090/2007 stands dismissed. I.A.1708/2007 is to be restored and sub court to dispose it afresh along with the appeal expeditiously applying the provisions of Rule 27 of Order XLI of Code of Civil FAO 187/08 11 Procedure. Send back records to first appellate court. Parties are directed to appear before the sub court, Neyyattinkara on 26/5/2009. M.SASIDHARAN NAMBIAR, JUDGE. uj.