IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 RSA.No. 400 of 2009(E) -------------------------------- [AS.NO.19/2005 OF III ADDL. DISTRICT COURT, THIRUVANANTHAPURAM, OS.NO.153/1984 OF PRL.MUNSIFF'S COURT, THIRUVANANTHAPURAM] .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ----------------------------------------------------------- 1. THAJUDEEN,S/O.MOHAMMED MYTHEEN, KOLLAMPOTTA PUTHUVAL PUTHEN VEEDU, RANDAMADA MURI, RANDAMADA VILLAGE,THIRUVANANTHAPURAM. 2. SHAJAHAN,S/O.MOHAMMED MYTHEEN,OF -DO- -DO- 3. SULAIKHA,D/O.PATHUMMA BEEVI,OF -DO- -DO- 4. SULAIMAN,S/O.MOHAMMED MYTHEEN, OF -DO- -DO- 5. SHAHUL HAMEED,S/O.MOHAMMED MYTHEEN OF -DO- -DO- 6. FATHIMA BEEVI,W/O.ABOOBACKER KUNJU, KOLLAMPATTA PUTHUVAL PUTHEN VEEDU, -DO- -D0- 7. LAILA BEEVI,D/O.PATHUMMA BEEVI, -DO- -DO- 8. SUBAIDA BEEVI,D/O.FATHIMA BEEVI,OF -DO- -DO- 9. NAZEEMA BEEVI,D/O.FATHIMA BEEVI, OF -DO- -DO- BY ADVS. SRI.VAKKOM N.VIJAYAN, SMT.REEJA HARI, SMT.V.RENJU, SRI.P.ANIYAN, SMT.M.A.RAMITHA. R.S.A. NO.400/2009-E: RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. MOHAMMED MEERA UMMAL RUKIYA UMMAL, W/O.LATE MOHAMMEDALI,CHANTHAYIL VEEDU,ANCHAMADA VILLAGE,THIRUVANANTHAPURAM. 2. MOHAMMEDALI JAFFER OF -DO- -DO- 3. RUKIYA UMMAL SHERIFA, OF -DO- -DO- 4. RUKIYA UMMAL NABEEZA,CHANTHAYIL VEEDU, ANCHAMADA VILLAGE,THIRUVANANTHAPURAM. 5. MOHAMMED MYTHEEN SALIM,KALLAMPOTTA PUTHUVAL PUTHENVEEDU,RANDAMADA VILLAGE, TRIVANDRUM. R3 TO R5 BY SRI.B.S.KRISHNAN, SENIOR ADVOCATE, SRI.K.ANAND, SMT.LATHA KRISHNAN. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- RSA No.400 of 2009-E ------------------------------------- Dated 29th July 2010 Judgment Faced with the concurrent findings against them, the plaintiffs in OS No.153/84 before the Principal Munsiff's Court, Thiruvananthapuram, have come up in appeal. 2. The first plaintiff and his brother claim to have acquired plaint A and B schedule properties as per Ext.A1 sale deed dated 15.02.1965. The sale deed is said to have been executed by one Meera Sayu Muhammedali, who is the husband of the first defendant and the father of defendants 2 to 4. According to the plaintiffs, ever-since the execution of the sale deed in their favour, they have been in absolute possession and enjoyment of the suit property. It is stated that after the execution of the document and handing over possession, the said Mohammedali and his family shifted their residence to a temporary shed in the property comprised in Survey No.2617 and were residing there since then. The first RSA 400/09 2 plaintiff is closely related to Muhammedali. It is averred that the first plaintiff and his brother put up a new house at Kanjirampara and shifted their residence to that place. On request made by Muhammedali, he and his family members were allowed to reside in the plaint schedule building situated in Survey No.2617. But, in violation of the condition undertaken by them, they refused to vacate the premises when demanded by the plaintiffs. The defendants have no manner of right over the suit property or the building therein and they are bound to vacate the same. Seeking declaration of title and recovery of possession, the suit was laid. 3. The defendants resisted the suit. They denied that their predecessor-in-interest had executed Ext.A1 document as alleged in the plaint. They pointed out that since Muhammedali died on 13.02.1965, he could not have executed a sale deed on 15.02.1965. It was also urged that since Muhammedali was completely bedridden, he could not have executed the document at all. The plaint schedule RSA 400/09 3 property, along with other items of properties belonged to deceased Muhammedali as per a sale deed of the year 1179 ME. Pointing out that Muhammedali had not executed any deed in favour of the plaintiffs, the defendants contended that the plaintiffs have no manner of right over the suit property and the building therein. By way of abundant caution, they also contended that if at all the plaintiffs had any right, that has been lost by adverse possession and limitation. The other allegations in the plaint were also denied. Pointing out that the suit is an experimental one, they prayed for a dismissal of the suit. 4. It appears that initially, after taking evidence, the Trial Court dismissed the suit. The matter was carried in appeal. From the lower Appellate Judgment made available before this Court, it is seen that when the appeal was taken up for hearing, one of the crucial documents, namely, Ext.X1 was found missing and that compelled the Appellate Court to remand the matter to the Trial Court for further evidence in the matter. The Trial Court, after RSA 400/09 4 remand, allowed the parties to adduce further evidence. It is seen from the records that in spite of best efforts made by the Trial Court, the original of Ext.X1 document could not be made available. The evidence in the case consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A5 from the side of the plaintiffs. The defendants examined DWs1 to 5 and had Exts.B1 to B18 marked. Ext.X1 and X2 are third party exhibits. 5. The Trial Court, on an evaluation of the evidence on record, came to the conclusion that the claim of the plaintiffs that Muhammedali had executed Ext.A1 deed in their favour was not established and therefore, dismissed the suit. The plaintiffs carried the matter in appeal as AS No.19/05 before the District Court, Thiruvananthapuram. The District Court, after an elaborate consideration of the evidence in the case, came to the conclusion that the findings of the Trial Court do no call for any interference. Accordingly, the appeal was also dismissed. Hence the SA. RSA 400/09 5 6. The following substantial questions of law are seen formulated in this appeal. “1. Whether the lower appellate court was right in dismissing the appeal without looking Ext.X1 book as per the directions of the appellate court which is the sole evidence produced to prove the date of death of Muhammedali ? 2. Whether the lower appellate court was right in dismissing the appeal when the findings are completely against the evidence and in the absence of the sole crucial evidence – Ext.X1 ? 3. Was not the erroneous analysis of fact and wrong appreciation of evidence on the points have resulted in miscarriage of justice ?” 7. The learned counsel for the appellants laid considerable emphasis on the fact that Ext.X1 which was originally produced before the Trial Court had been returned to the first defendant and subsequently, in spite of the directions given by the court, it was not produced. It is also pointed out that the register from which Ext.X1 was taken, was also not produced in spite of the directions issued from the Court. Therefore, it was contended that an adverse inference needs to be drawn against the RSA 400/09 6 defendants. It is pointed out that it was deliberately withheld and kept away from the court with ulterior motives. The learned counsel also pointed out that the courts below have omitted to note that Ext.B11, which is a partition deed executed by the defendants, did not contain the suit property and that would indicate that the sale deed in favour of the plaintiffs is true and correct. It was also contended that there has not been a proper appreciation of the evidence in the case. The learned counsel pointed out that this Court needs to interfere with the concurrent findings by the courts below. 8. The learned counsel for the respondents, on the other hand, pointed out that there is no merit in any of the contentions raised by the learned counsel for the appellants. After the remand, the learned counsel pointed out that the counsel appearing for the defendants before the Trial Court had conceded that they do not indent to place reliance on the missing document and the case may be decided on other items of evidence. The learned RSA 400/09 7 counsel went on to point out that it was on evaluation of the available evidence that the courts below had come to the conclusion that the plaintiffs have miserably failed to establish their case. Under such circumstances, according to him, no grounds are made out to interfere with the Judgments of the courts below. 9. As rightly pointed out by the learned counsel for the respondents, emphasis laid on Ext.X1 document which was produced earlier, seems to be misplaced. It is true that it was found missing at the appellate stage. The Appellate Court probably felt that initially the Trial Court had placed considerable reliance on that document and probably, it might have felt that the decision of the Trial Court was solely based on that document. When that document was found missing, it was natural that the matter had to be remanded to the Trial Court for fresh consideration. That was what was done by the lower Appellate Court. One needs to notice that the lower Appellate Court was careful enough to observe that if RSA 400/09 8 Ext.X1 was missing, the other evidence will have to be considered and the parties may be called upon to adduce further evidence. 10. Even assuming that the original of Ext.X1 was not produced and it was deliberately withheld, it does not advance the case of the plaintiffs much. Of course, it also needs to be noticed that by withholding the said document, the defendants did not stand to gain much. There was a concession made by the learned counsel for the defendants after remand that they do not wish to rely on the missing document. 11. It is significant to notice that the sale deed in favour of the plaintiffs is of the year 1965. The mutation has not been effected for a long time and neither the building tax nor the property tax was paid by the plaintiffs. The documents produced by them evidenced the payment of tax for the years 1983 and 2003. One, just before the suit and the other, long after the suit. They cannot be of much value. On the other hand, the defendants have produced RSA 400/09 9 Exts.B3, B4, B5 etc., which show that they had been paying tax in respect of the property and also have been receiving communications from the statutory authorities in respect of the property and the building therein. The defendants have also caused production of the admitted signatures of late Muhammedali for comparison. The Trial Court took the aid of S.73 of the Indian Evidence Act and made a comparison of the admitted signature with the signatures in the disputed document Ext.A1. The Trial Court found that the signature in Ext.A1 varied considerably from the admitted signatures. The Trial Court was of the opinion that even if there is no expert opinion regarding the signature in Ext.A1 document, it can be easily seen that the signature in that document is not that of the deceased Muhammedali. The defendants had specifically contended that Muhammedali was bedridden for a long time i.e, for nearly two years prior to his death and he was incapable of executing any document. A perusal of the Judgment of the Trial Court shows that PW1 admitted that Muhammedali was RSA 400/09 10 bedridden for a long time. 12. One must remember here that the plaintiffs were relying on their title and therefore, the entire burden was on the plaintiffs to prove it. The weakness of the defence case can have no help to the plaintiffs. After remand, it seems, Ext.X1 was produced from the Wakf Board. One needs to notice that Ext.B9 dated 17.02.84 is a letter from the Secretary of the Vattiyoorkavu Muslim Jama ath, which indicated that Muhammedali died on 13.02.1965. No reasons are given to suspect the said document. The courts below have considered all the facts and circumstances of the case and have analysed the evidence in the proper perspective. 13. Since the learned counsel for the defendants before the Trial Court has conceded that they do not wish to rely on Ext.X1 document, the substantial questions of law formulated in this Second Appeal do not arise for consideration. It is not shown that the finding of the courts below that the plaintiffs have miserably failed to establish RSA 400/09 11 their case, is either perverse or unwarranted by the evidence on record. There is nothing to indicate that the courts below have relied on any irrelevant materials or not relied on relevant materials. There is no legal or factual infirmity in the findings of the courts below. The result is that this appeal is without any merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE sta RSA 400/09 12