IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 SA.No. 134 of 1998(G) ------------------------------- [AS.NO.55/1991 OF SUB COURT,ATTINGAL, OS.NO.27/1989 OF PRINCIPAL MUNSIFF COURT,NEDUMANGAD] .................... APPELLANT/2ND RESPONDENT/2ND DEFENDANT: ------------------------------------------------------------------------- *1. CHINNA KOCHAPPI, D/O. CHINNA, AGED 66, PATTARAVAZHATHOPPU PANCHAKUNNU VILA VEEDU, ANAKUDI MURI, KALLARA VILLAGE *(DIED). *ADDITIONAL APPELLANTS 2 TO 4 IMPLEADED: *2. G.K. LAKSHMI, D/O. KOCHAPPI, AGED 56 YEARS, RESIDING IN DEVARAGAM, KULAMAANKUZHI, KALLARA (P.O), NEDUMANGAD. *3. VASANTHA, AGED 46 YEARS, D/O. KOCHAPPI, KIZHAKKUNKARA PUTHEN VEEDU, PANACHAMOODU, THANNIAM, KALLARA (P.O), NEDUMANGAD. *4. VANAJA, D/O. KOCHAPPI, CHARIVILLA VEEDU, ANAKUZHI, PARAPIL, MUTHUVILLA (P.O), NEDUMANGAD. BY ADVS. SRI.G.S.REGHUNATH, SRI.MOHAN JACOB GEORGE. S.A. NO. 134/1998-G: RESPONDENTS/APPELLANTS/PLAINTIFFS: -------------------------------------------------------------- 1. NARAYANAN DEVAYANI, PRAKAS BHAVAN, PACHAVAZHATHOPPU, PATTARA, ANAKUDI MURI, KALLARA VILLAGE. 2. GANGADHARAN JAYAPRAKASH OF DO. DO. *ADDL. RESPONDENTS 3 AND 4 IMPLEADED: *3. VALSALA, D/O. KOCHAPPI, KUNNUVILLA VEEDU, KAAZHATHOPPU, PACHA, KALLARA (P.O), NEDUMANGADU. *4. RENUKA, D/O. KOCHAPPI, KUNNUVILLA VEEDU, VAAZHATHOPPU, PACHA, KALLARA (P.O), NEDUMANGAD. *ADDL. APPELLANTS 2 TO 4 AND ADDL. RESPONDENTS 3 AND 4 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED 1ST APPELLANT AS PER ORDER DTD. 23/07/09 IN I.A. 1570/09. R1 & R2 BY ADV. SRI.K.B.PRADEEP. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A. NO. 134/1998-G: ORDER ON I.A. NO.207/2010 IN S.A. NO.134/1998-G DISMISSED 28/10/2010. SD/- HARUN-UL-RASHID, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID, J. ------------------------ S.A.No.134 Of 1998 ---------------------- Dated this the 28th day of October, 2010. J U D G M E N T The second defendant in O.S.No.27 of 1989 on the file of the Munsiff Court, Nedumangad is the appellant. The appeal is directed against the decree and judgment in A.S.No.55 of 1991 on the file of the Sub Court, Attingal. The plaintiff filed the suit for permanent prohibitory injunction restraining the defendant from trespassing into the plaint schedule property or obstructing the plaintiff's possession and enjoyment over the same. Parties hereinafter are referred to as the plaintiffs and defendant as arrayed in the suit. 2. The plaint schedule property is 68 cents comprised in R.S.No.2138/18 of Kallara Village. Plaintiffs claimed title and possession over the suit property on the strength of Ext.A1 partition deed dated 17.7.1984. In the plaint it is averred that the father of the second plaintiff, who is the husband of the first plaintiff got title in respect of the suit property by virtue of three sale deeds of the years 1958, 1959 and 1960. It is also averred S.A.No.134 Of 1998 ::2:: that on the death of the father the plaintiffs and other legal heirs of the father partitioned the properties by Ext.A1 partition deed. The plaint schedule property was allotted to the second plaintiff as 5th schedule to Ext.A1 partition deed. Life interest is created in favour of the first plaintiff who is the mother of the second plaintiff. According to the plaintiffs, the defendants are the adjacent property owners and has no manner of right, title and interest over the plaint schedule property. 3. In the written statement filed by the defendants it is contented inter alia that the plaintiffs have no manner of right in respect of 5 cents of land and shrine situated therein covered by the sale deed of the year 1960. According to the defendants the 5 cents of land wherein the shrine is situated is wrongly included as a property belonging to the plaintiffs. In fact the plaintiffs have no right over the disputed 5 cents of land and in so far as the disputed property is concerned, sale deed of the year 1960 is a sham document to the extent of the aforesaid 5 cents. 4. In the trial court both sides adduced oral and documentary evidence. The trial court framed necessary issues. S.A.No.134 Of 1998 ::3:: The trial court observed that the plaintiffs have no case that they are in possession of 5 cents of property scheduled as item No.11 in Ext.B1. The court also observed that the plaintiffs have not produced the document No.1042 of 1960 or other documents to prove that they are having title in respect of the disputed 5 cents. In the above said circumstances, the court held that the plaintiffs have failed to prove the identity and possession of the property and also right of the plaintiffs. Therefore, the suit was dismissed. 5. In the appeal preferred by the plaintiffs as A.S.No.55 of 1991, appellants/plaintiffs have produced sale deed No.1042 pf 1960 referred to by the trial court . A detailed objection was filed by the defendants against the reception of additional evidence. The court marked the said sale deed as Ext.A5. After reading Ext.A5 the court held that Ext.A5 shows that the vendors in Ext.A5 transferred possession of an extent of 5 cents in survey No.2138/18 in favour of the vendee that is the first appellant. On the basis of Ext.A5 sale deed the lower appellate court set aside the decree and judgment passed by the court below and decreed the suit. The prayer for injunction restraining the S.A.No.134 Of 1998 ::4:: defendants from interfering with the peaceful possession of the plaint schedule property was granted. 6. The learned counsel for the appellants submitted that the lower appellate court after receiving Exts.A4 & A5 documents in evidence without giving an opportunity to the defendants to dispute the validity and genuineness of the said documents straight away accepted the validity of those documents and decreed the suit. The learned counsel pointed out that the main contention of the appellants before the court below is that the disputed property is not included in the plaint schedule property. The definite case of the defendant is that the disputed 5 cents of land is a portion of property included in Ext.B1 partition deed of the year 1958 and that Ext.A5 sale deed relied on by the plaintiffs is a sham document so far as the disputed 5 cents of property and the shrine is concerned. It is also submitted that the genuineness of the document is seriously disputed and therefore the only course open to the appellate court is either to dismiss the application for reception of additional evidence or to remand the case for fresh consideration after giving opportunity S.A.No.134 Of 1998 ::5:: to both sides to adduce evidence in support of their respective contentions. It is also pointed out that the original document was not produced. Ext.A5 is only an attested copy of the document even though the genuineness of the document is challenged. Learned counsel also pointed out that the lower appellate court wrongly and illegally allowed the plaintiffs to produce the two documents in the appellate court and relied on those documents without affording an opportunity to defendant to disprove the documents. 7. In the facts and circumstances stated in the preceding paragraphs, I find that there is force in the contentions raised by the learned counsel. In the light of the contentions raised by the appellant/defendant in the suit and against the validity of Ext.P5 document, the course open to the appellate court is to remand the case for fresh consideration. The judgment and decree passed in the suit in the said circumstances, is not sustainable under law. Therefore the matter requires reconsideration by the trial court. S.A.No.134 Of 1998 ::6:: In the result, the appeal is allowed. The decree and judgment under appeal is set aside. The case is remanded to the trial court for denovo consideration. The parties shall be given an opportunity to adduce further evidence if any, if so advised. The suit shall be disposed of within a period of six months from the date of receipt of a copy of this judgment. The status quo as on today shall continue till the disposal of the suit. The parties shall appear before the court below on 22.11.2010. HARUN-UL-RASHID, Judge. bkn/-