IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 SA.No. 488 of 1998(G) --------------------- AS.16/1994 of SUB COURT, HOSDRUG OS.154/1993 of MUNSIFF COURT, HOSDRUG .................... APPELLANT(S): -------------- 1. P.MADHAVI D/O POLAYI PATTA AND WIDOW OF RAMAN, R/AT. KOTTARA COLONY, NILESWAR VILLAGE, HOSDURG TALUK.P.O. THAIKKADAPURAM 2. P.KALLIYANI, D/O P.MADHAVI --DO-- 3. P.NARAYANAN, S/O MADHAVI, AGRICULTURIST --DO-- BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S): --------------- 1. DEVAKI.M AGED 61 YEARS WIDOW OF P.POKKAN. R/AT KOTTARA HOUDR.APO, THAIKKADAPPURAM NILESHWAR VILLAGE, HOSDURG TALUK. KASARAGOD DISTRICT. 2. M.LAKSHMI AGED 41 YEARS D/O M.DEVAKI & P.POKKAN. R/AT KOTTARA HOUDR.APO, THAIKKADAPPURAM NILESHWAR VILLAGE, HOSDURG TALUK. KASARAGOD DISTRICT. 3. M.KARTHIYAYINI AGED 38 YEARS D/O M.DEVAKI & P.POKKAN. R/AT KOTTARA HOUDR.APO, THAIKKADAPPURAM NILESHWAR VILLAGE, HOSDURG TALUK. KASARAGOD DISTRICT. 4. NARAYANAN.M S/O M.DEVAKI & P.POKKAN. AGRICULTURIST R/AT KOTTARA HOUDR.APO, THAIKKADAPPURAM NILESHWAR VILLAGE, HOSDURG TALUK. KASARAGOD DISTRICT. 5. KUNHIRAMAN S/O M.DEVAKI & P.POKKAN. R/AT KOTTARA HOUDR.APO, THAIKKADAPPURAM NILESHWAR VILLAGE, HOSDURG TALUK. KASARAGOD DISTRICT. 6. M.RAGHAVAN S/O M.DEVAKI & P.POKKAN. R/AT KOTTARA HOUDR.APO, THAIKKADAPPURAM NILESHWAR VILLAGE, HOSDURG TALUK. KASARAGOD DISTRICT. 7. M.SAROJINI D/O M.DEVAKI & P.POKKAN. R/AT KOTTARA HOUDR.APO, THAIKKADAPPURAM NILESHWAR VILLAGE, HOSDURG TALUK. KASARAGOD DISTRICT. 8. P.P.BHASKARAN, S/O P.V.AMBU, AGRICULTURIST R/AT KOTTARA HOUDR.APO, THAIKKADAPPURAM NILESHWAR VILLAGE, HOSDURG TALUK. KASARAGOD DISTRICT. R1 TO R7 BY ADVS. SRI.L.GOPALAKRISHNAN POTTI & SRI.A.DINESH RAO R8 BY ADV. SMT.V.SETHUKUTTY AMMA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kkj P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - S.A.488 of 1998 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2011 J U D G M E N T Defendants 1to 3 in OS 154/1993 before the Munisiff Court, Hosdurg are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Shown of unnecessary details, suit was laid for partition of the property said to belong to one Patta . According to the plaintiff, Patta had two children, namely Pokkan and Madhavi. Plaintiffs are the wife and children of Pokkan who is no more. They claimed to be in joint possession of the property along with the first defendant. On the allegation that plaintiffs do not wish to continue the joint status, the suit for partition claiming ½ share of the property was laid. 3. The defendants resisted the suit. In Written 2 S.A.488 of 1998 statements filed by the defendants 1 to 3, they disputed on the paternity of Pokkan, pointed out that he was not the son of Patta and therefore the plaintiff had no manner of right over the property. According to them, Patta had only a daughter, namely the first defendant and property devolved on her. She also pointed out that subsequently she had assigned a portion of the property to her children and that the plaintiffs have no right to seek partition. 4. In the separate written statement filed by 4th defendant also, he disputed the status and claim made by the plaintiff and prayed for the dismissal of the suit. 5. On the above pleadings issues were raised. 6. The evidence consists of testimony of Pws.1 to 13 and Exts. marked as Exts.A1 to A4 from the side of the plaintiff. The defendants had DW1 and 2 3 S.A.488 of 1998 examined and Exts. B1 to B9 marked. 7. On a consideration of the materials before it, the trial court found that there was want of evidence to show that Pokkan was the son of Patta and accordingly dismissed the suit. 8. The plaintiff carried the matter in appeal as AS 46/1994 before the Sub Court, Hosdurg. The lower appellate court believed PW2 and also accepted that since the basic tax with respect to the property had been paid by Pokkan as son of Patta, in the name of patta, there was sufficient evidence to show that Pokkan was the son of Patta and accordingly decreed the suit. The said judgment and decree are assailed. 9. Notice is seen to be issued on the following questions of law:- a. Should not have the Appellate court rejected Ext.A1 4 S.A.488 of 1998 to A3 as inadmissible under clause (5) and (6) of section 32 of the evidence act. b. Has not the appellate court erred in accepting Ext.A1 to A3 to decide the prdigree of the plaintiff and title of the plaintiff to claim partition of the property without any further proof of Ext.A1 to A3 to hold so and without even insisting for proper proof of those belated conceoted documents produced at the stage of evidence. c. In the absence of any material evidence to convince the court regarding the prdigree of the plaintiff and title over the property of the plaintiff, has not the appellate court gone wrong in making a guess work to told that plaintiff's husband is a heir of Patta entitled to a share in the suit properties. d) Did not the appellate court wrongly cast the burden of pay on the defendants in the instant case which in fact lies on the plaintiff's to establish their title over the suit properties to claim partition. e) Has not the appellate court gone wrong in re- appreciating the entire evidence without any material to contradict the conclusions of the trial court which had the better opportunity to assess the evidence of parties. f) Aggrieved by the decree and judgment in A.S.16/94 the appellants herein prefer this memorandum of appeal on the following among 5 S.A.488 of 1998 other. 10. The learned counsel appearing for the appellant criticized the judgment and decree of the lower appellate court and pointed out that the court below were unjustified in upsetting the trial court decree without justifiable reasons. It was contended that there was no acceptable evidence to show that Pokkan was the son of Patta. The learned counsel drew attention of this court to the fact that lower appellate court has based its conclusions on certain basic tax receipts and evidence of PW2. According to the learned counsel, certain basic tax receipts which contain self serving recital and the evidence of PW2, who was not in good terms with the first defendant have been relied on by the lower appellate court. The learned counsel also pointed out that even according to PW1, first plaintiff, there 6 S.A.488 of 1998 was ration card and voters list which would clearly indicate that Pokkan was the son of Patta. If that be so, according to the learned counsel the best evidence that could have produced in this regard are those documents. According to PW1 those documents are available. The non-production of those vital documents call for an adverse interference to be drawn against the plaintiff. According to the learned counsel for the responde, these vital aspects has been omitted to be noticed by the lower appellate court and the judgment and decree of the lower appellate court is therefore clearly unsustainable in law. 11. According to the learned counsel for respondents there is evidence to show that Pokkan and plaintiffs were residing in the property owned by Patta. It is also contended that the fact that the 7 S.A.488 of 1998 basic tax receipts namely Ext.A4 series which came into existence long before the dispute arose show that the tax was paid in the name of patta, by his son Pokkan. That recital according to the learned counsel is sufficient to show that Pokkan was the son of Patta. The Lower appellate court also found that the evidence of PW2 to be acceptable and there is no reason to disbelieve him. Accordingly it is contended that the lower appellate court was justified in coming to the conclusion that Pokkan was the son of Patta. 12. It is difficult to accept the contentions of the respondents in this appeal. In the written statement filed by D1 to D3 they had specifically contended that Patta had only one daughter namely the first defendant and that Pokkan was not the son of Patta. Therefore the plaintiffs were alerted about 8 S.A.488 of 1998 their status at the earliest opportunity. The only document that the plaintiff had paid are the A4 series of basic tax receipts in which it is seen that basic tax have been paid for the year 1960 by Pokkan, the son of Patta in the name of Patta. In his evidence, PW2 says that Pokkan is the son of Patta. These are the items of evidence which found favour in the lower appellate court. 13. The question is whether that is sufficient. It does not appear to be so. One may refer to the evidence of PW1 in this regard. Before going to the evidence one fact may be noticed. Admittedly plaintiffs are not now residing in the plaint schedule property. In the cross examination PW1 says that there is ration card and electoral list to show that Pokkan was the son of Patta. Even otherwise there would have been other documentary evidence which 9 S.A.488 of 1998 would have shown that Pokkan was the son of Pata. Except for the few basic tax receipts reference to which had already been made, no other acceptable or reliable documents have been produced by the plaintiff to show that Pokkan was the son of Patta. As regards the evidence of PW2 is concerned in his cross examination, it has come out that he has got a subsisting property dispute with the first defendant and their relationship is far from cordial. It may not be proper under such circumstances to accept his evidence in support of the plaintiff's claim that the Pokkan was the son of Patta. 14. As rightly noticed by the Trial court when there are documentary evidence available to show that Pokkan was the son of Patta, reliance cannot be placed on the oral evidence alone and the trial court is justified in coming to the conclusion that Ext.A4 10 S.A.488 of 1998 series by themselves are not sufficient to determine the status of Pokkan as the son of Patta. 15. The reasoning given by the lower appellate court does not appear to be sound and convincing. When the plaintiff herself say that there were documents likes ration card and electoral list to show that Pokkan was the son of Patta, those documents ought to have been produced. They could have produced heirship certificate or such other relevant documents from authorities concerned to establish that Pokkan is the son of Patta. But plaintiffs seem to be satisfied with the production of tax receipts in which it is mentioned that Pokkan is the son of Patta. One must remember that the tax receipts are issued on tax being paid by Pokkan himself. How far that can given the status to Pokkan as the son of Patta is open to serious doubt. 11 S.A.488 of 1998 16. At any rate, when it is stated by PW1 there are other reliable and convincing documents to show that Pokkan is the son of Pata, they ought to have been produced. In the absence of production of those documents, the lower appellate court is not justified in coming to the conclusion that Pokkan is the son of Patta. 17. Faced with the above situations, the learned counsel for the respondents prayed that his clients may be given an opportunity to establish that Pokkan is the son of Patta. The fact remains that for a long time Pokkan had been residing in the property of Patta and that would suggest that there was some relationship between Patta and Pokkan. As what exactly is the nature of relationship is a matter for determination. Considering these aspects it is felt that the request made is a reasonable one. 12 S.A.488 of 1998 17. In the result:- This appeal is allowed. The impugned judgment and decree of the lower appellate court are set aside and the matter is remanded to the trial court to enable both the parties to adduce further evidence to show the status of Pokkan vis-a-viz Patta. The remand is only for that limited purpose. Parties shall appear before the trial court 27.09.2011 . The trial court may make every endeavour to dispose the suit, as expeditiously as possible, at any rate, within a period of six months from the date of appearance of the parties. P.BHAVADASAN JUDGE kkj