IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 SA.No. 402 of 1999(F) --------------------- AS NO.6/1989 OF ADDITIONAL DISTRICT COURT, KOTTAYAM OS NO.6/1984 OF MUNSIFF'S COURT, KANJIRAPPALLY. APPELLANT(S)/FIRST RESPONDENT/FIRST DEFENDANT: -------------- (*)SANKU THANKAPPAN, THEKKECHERUVIL (CALLED AS MEZHUVELI), KANAKAPPALAM KARA IN ERUMELY VILLAGE. (DIED. LRS IMPLEADED) (*) ADDITIONAL APPELLANTS: 2. THANKAMMA W/O.LATE SANKU THANKAPPAN, THEKKECHERUVIL VEEDU, KANAKAPPALAM P.O., ERUMELY, KOTTAYAM. 3. RAJAN, S/O.LATE SANKU NARAYANAN, -DO- -DO- 4. VIJAYAN, -DO- -DO- -DO- 5. SASI, -DO- -DO- -DO- 6. GOPI, -DO- -DO- -DO- 7. OMANA, D/O.LATE SANKU THANKAPPAN, -DO- -DO- (ADDITIONAL APPELLANTS 2 TO 7 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT AS PER ORDER DATED 7.10.2002 IN CMP NO.1904/02) BY ADV. SRI.SIBY MATHEW RESPONDENT(S)/APPELLANTS/PLAINTIFFS AND DEFENDANTS 2 AND 3: --------------- 1. BALACHANDRAN, S/O.NARAYANAN, THEKKECHERUVIL, MUTTAPPALLY KARA, ERUMELY VILLAGE. 2. CHANDRASEKHARAN, S/O.NARAYANAN, THEKKECHERUVIL HOUSE, KANAMALA KARA IN ERUMELY VILLAGE. 3. RAVINDRAN, S/O.NARAYANAN, VAZHANAKKUNNEL, KOTTOOR KARA, IN KAVIYOOR VILLAGE, IN THIRUVALLA TALUK. SA NO.402/1999 2 4. VIDYASAGAR, S/O.NARAYANAN, THEKKECHERUVIL HOUSE, KANAMALA KARA IN ERUMELY VILLAGE. 5. RAJENDRAN, S/O.NARAYANAN, THEKKECHERUVIL HOUSE, KANAMALA KARA IN ERUMELY VILLAGE. 6. REGHU, S/O.NARAYANAN, THEKKECHERUVIL HOUSE, KANAMALA KARA IN ERUMELY VILLAGE. 7. T.N.MOHANAKUMARI, W/O.PURUSHOTHAMAN, RESIDING AT KUTTIYIL HOUSE, EDAKADATHY IN MUKKOOTTUTHARA KARA IN ERUMELY VILLAGE. 8. YASODARA, W/O.KARUNAKARAN, VADAKKECHERUVIL, VENKURINJI, MUKKOOTTUTHARA KARA IN ERUMELY VILLAGE. 9. T.N.RAMACHANDRAN, S/O.NARAYANAN, CIVIL ENGINEER, BHUVANANDRA CONS CO., ARKAY BUILDERS, NANDAVAN, DALISAR (EAST), BOMBAY 400 068, FROM POOTHAPPARA HOUSE, MAKKAPPUZHA KARA IN RANNI VILLAGE. 10. T.N.RENJANAN, MINI FEBAS, BEHIND BHEPRAPPA (ESTATES), MAGHADI (ROAD) KAMACKSHIPPILLYS, BANGALORE 79, FROM THEKKECHERUVIL HOUSE, KANAMALA KARA, IN ERUMELY VILLAGE. ADV. SRI.T.I.ABDUL SALAM FOR R1 TO R8 ADV. SMT.A.CHITHRA FOR R10 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.402 of 1999 -------------------------------------- Dated this the 20th day of February, 2009. JUDGMENT The dispute which is carried into this Second Appeal between near relatives is in respect of the right of respondents to recover 19 cents of land which admittedly now is in the possession of the appellant. Respondents 1 to 7, 9 and 10 are the legal representatives of Sanku Narayanan. Appellant is the brother of Sanku Narayanan. The suit property originally belonged to Sanku Narayanan as per partition deed No.380 of 1956, a registration copy of which was marked in the first appellate court as Ext.A3 on the side of respondents 1 to 8. According to respondents 1 to 8, Sanku Narayanan along with his parents who had life interest over the suit property assigned it in favour of the respondents as per assignment deed No.853 of 1956 dated 2.4.1956 and since then, they were in possession and enjoyment of the property paying revenue. They produced Ext.A2, receipt dated 6.9.1985 for payment of revenue for the suit property for the years 1984-85 and 1985-86. On the premises that they are in possession and enjoyment of the said property, they sued the appellant for a decree of prohibitory injunction against trespassing into the suit property. Respondents 9 and 10 who also had right along with respondents 1 to 7 were impleaded as defendants 2 and 3 in the suit. Appellant contended that as per Ext.B1, agreement dated 18.10.1978 executed by Sanku Narayanan, the latter had agreed to sell the suit property in his favour for consideration and he was put SA No.402/1999 2 in possession and enjoyment of the said property. In the court below, an advocate commissioner was deputed to inspect the property. Advocate commissioner filed Exts.C1 to C3, plan, report and list, respectively. In the light of the report of the advocate commissioner, respondents 1 to 8 got the plaint amended as one for recovery of possession on the strength of their title. Learned Munsiff found that apart from Ext.A1, respondents 1 to 8 did not produce the prior document of title (Ext.A3) and prove the identity of the suit property. The suit was dismissed. Respondents 1 to 8 took up the matter in appeal. In the appeal the registration copy of the partition deed as per which Sanku Narayanan got title and his parents got life interest over the suit property was produced by respondents 1 to 8. Since that document is admitted by the appellant also, learned Additional District Judge received the document as additional evidence and marked it as Ext.A3. Learned Additional District Judge found that boundary descriptions in the A schedule of Ext.A3, A1, the plaint schedule and the descriptions given by the advocate commissioner tallied, there is no dispute raised by the appellant regarding the identity of the property, found that respondents have title over the suit property, that execution of Ext.B1 is not proved and at any rate, that cannot be taken into account since by the time Ext.B1was allegedly executed, Sanku Narayanan had no right, title or interest over suit property and accordingly, granted decree in favour of the respondents for recovery of possession. That judgment and decree are under challenge in this Second Appeal. SA No.402/1999 3 2. The substantial questions of law formulated for a decision are - whether the first appellate court was right in holding that Sanku Narayanan had no subsisting right over the suit property at the time of execution of Ext.B1 and whether the first appellate court was correct in holding that execution of Ext.B1 is not proved and at any rate, did not confer right on the appellant. 3. Learned counsel for the appellant contended that the first appellate court ought not to have taken Ext.A3 into account since the case spoken by the first respondent as PW1 in the trial court was that the original partition deed is lost and hence he is unable to produce the same in which case he could have produced atleast the registration copy of the partition deed in the trial court. It is also contended by the learned counsel that the finding of the first appellate court regarding the execution of Ext.B1 is not correct. Counsel for contesting respondents supported the judgment and decree passed by the first appellate court. 4. I went through the records of the case. There is infact no contention raised by the appellant in the written statement as to the identity of the property. Rather, he also claims that he is in possession of the suit property though, according to him as per Ext.B1. Trial court found against the identity of the property for the reason that the prior document of title (Ext.A3) referred to in Ext.A1 is not produced. Assuming that as a defect, that defect is curred by the contesting respondents by producing atleast the registration copy of the partition deed in appeal and getting it exhibited in evidence as Ext.A3. Appellant has no SA No.402/1999 4 reason to challenge that as he is also admitting the partition deed and the derivation of title in favour of Sanku Narayanan under whom he is claiming possessory right as per Ext.B1. There is no reason why this Court should interfere with the finding of the first appellate court that the property is properly identified by Exts.A1, A3 and the report and plan prepared by the advocate commissioner. 5. So far as Ext.B1 is concerned, it is an unregistered agreement dated 18.10.1978 said to be executed by late Sanku Narayanan. As to its execution, what is available is only the interested version of the appellant as DW1. He did not examine the attestors in Ext.B1. PW1, first respondent denied that Ext.B1 was executed by his father, Sanku Narayanan. It is also seen from Ext.B1 that on its first page where Sanku Narayanan is said to have subscribed his signature, none of the attesting witnesses have signed. The signature of the attesting witnesses appear only on the reverse side of the stamp paper and unfortunately on that side, the signature of the executent does not figure. There is no evidence that the appellant was in possession of the suit property from 18.1.1978 onwards. It is difficult to think that the appellant would not have instituted proper proceedings for transfer of title in his favour, even if Ext.B1 were actually executed by late Sanku Narayanan. In the circumstances the contention that Ext.B1 was executed by late Sanku Narayanan cannot be accepted. SA No.402/1999 5 6. Assuming that Ext.B1 was executed by late Sanku Narayanan, as rightly pointed out by the first appellate court, appellant would not got any right or interest over the suit property since Ext.A1 shows that as per registered assignment deed, Sanku Narayanan along with his parents who had life interest over suit property conveyed their right, title, interest and possession in favour of respondents on 2.4.1956. If that be so, there was no right subsisting with Sanku Narayanan on 18.10.1978 to agree to be conveyed to the appellant as per Ext.B1. 7. On going through the judgment of the first appellate court, I do not find any reason to interfere with that judgment and the decree that followed. No other point is raised for consideration. Second Appeal fails. It is dismissed. Parties are directed to bear their respective costs. C.M.P.No.1054 of 1999 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.402/1999 6 Thomas P.Joseph, J. S.A.No.402 of 1999 JUDGMENT 20th February, 2009.