IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 RSA.No. 59 of 2008 ---------------------------- AS.106/2002 OF THE ADDITIONAL DISTRICT COURT, PATHANAMTHITTA OS.208/1997 OF THE MUSNIFF'S COURT,ADOOR .................... APPELLANT/RESPONDENT/PLAINTIFF: ------------------------------------------------------- SAMUEL MICHAEL, KOPPARA HOUSE, IKKADU MURI, KODUMON VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON RESPONDENTS/APPELLANT & 2ND RESPONDENT/DEFENDANTS: --------------------------------------------------------------------------------------------- 1. POULOSE KUTTY, VARYAVEETTIL HOUSE, CHARAKKODE MURI, ERATHU VILLAGE, PATHANAMTHITTA DISTRICT. 2. FRANCIS, NIRAPPIL HOUSE, CHIRANICKAL BHAGOM,IKKADU MURI, KODUMON VILLAGE, ADOOR TALUK,PATHANAMTHITTA DIST. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J --------------------------------------------- R.S.A.No.59 of 2008 --------------------------------------------- Dated this the 18th day of January, 2008 JUDGMENT Plaintiff in O.S.No.208 of 1997 on the file of the Principal Munsiff, Adoor is the appellant. Defendants are the respondents. Suit was originally filed only against first respondent. Second respondent was subsequently impleaded. Plaint schedule property is part of 48 cents in Sy.No.22/1/1 of Kodumon village. Case of the appellant is that in the plaint schedule property which is having an extent of 28 cents excluding the property covered under Ext.B1 sale deed, which is 20 cents, originally belonged to first respondent and his brother Thomaskutty and they agreed to sell it to the appellant as per Ext.A1 agreement dated 12.3.1972, whereunder first respondent received Rs.600/- as advance towards sale consideration and agreed to assign the property for a consideration at the rate of Rs.75/- per cent. It was contended that the agreement provides for execution of a sale deed within six months and appellant was put in possession and he cleared the jungle and made the property into platforms, erected kayyalas and also made improvements and has been in possession of the property since then and has always been ready and willing to pay the balance consideration and get the sale deed executed, but first respondent protracted the matter awaiting R.S.A.No.59 of 2008 2 Thomaskutty, his brother. It was contended that on 9.12.1985 under Ext.A2 letter first respondent demanded Rs.1000/- more towards the sale consideration and appellant sent that money. Contending that first respondent had an intention to trespass into the plaint schedule property and for that purpose he visited the property along with strangers and alleging that he has no right to trespass into the property a decree for declaration of possession of the appellant and permanent prohibitory injunction was sought. 2. First respondent in the written statement contended that his brother is at Delhi in connection with his employment and appellant never intended to purchase the plaint schedule property and neither first respondent nor his brother Thomaskutty received any consideration or entered into any agreement and the property continued to be in the possession of the first respondent and he did not enter into Ext.A1 agreement and never put appellant in possession of the property and there is no necessity for him to trespass into the property in his possession. It was also contended that out of 48 cents belonging to the first respondent, the southern 20 cents was assigned to the brother of the appellant and the rest of the property continued to be in the possession of the first respondent and therefore, suit is only to be dismissed. Second respondent did not contest the suit. R.S.A.No.59 of 2008 3 3. Learned Munsiff, on the evidence of P.Ws.1 to 3, D.Ws.1 to 3 and Exts.A1 to A3 and B1 and B2, granted a decree declaring that appellant has been in lawful possession of the property. Respondents were restrained by a permanent injunction from trespassing into the property. First respondent challenged the judgment before District Court, Pathanamthitta in A.S.No.106 of 2002. Learned District Judge on reappreciation of the evidence found that appellant is claiming right and possession of the property under Ext.A1 agreement which was disputed by the first respondent. On reappreciation of evidence, learned District Judge found that execution of Ext.A1 was not proved and though Exts.A2 and A3 were relied on to prove the signature in Ext.A1, even Exts.A2 and A3 were not proved and on the evidence there is no probability for an agreement for sale when some days prior to the alleged date of execution of Ext.A1, under Ext.B1, 20 cents out of the total extent of 48 cents of property belonging to the minor first respondent and his brother Thomaskutty were sold on their behalf by their father and in such circumstances Ext.A1 cannot be relied on. Learned District Judge on the evidence also found that appellant did not establish his possession of the property and set aside the judgment of the trial court and dismissed the suit. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant was heard. R.S.A.No.59 of 2008 4 Argument of the learned counsel is that first appellate court was not justified in interfering with the finding of the trial court without proper appreciation of evidence. It was argued that first appellate court wrongly concluded that Ext.A1 agreement was not executed by first respondent and did not consider the oral evidence tendered on the side of the appellant and wrongly found that appellant has not established possession of the property and as the evidence established that from the date of Ext.A1, appellant has been in settled possession of the property, a decree of injunction and declaration of possession should have been granted. Learned counsel further argued that first appellate court without applying the mandatory provisions of Rule 27 of Order XLI of Code of Civil Procedure, received Ext.B3 as an additional document though it was not appended to the judgment and in paragraph 15 of the judgment relied on the sale deed so received as an additional evidence and the very procedure is illegal and therefore, the judgment is to be set aside. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in this appeal. Learned counsel argued that Ext.B3 was received by the first appellate court without complying with the provisions of Rule 27 of Order XLI of Code of Civil Procedure. On going through the judgment of the first appellate R.S.A.No.59 of 2008 5 court, though it is seen that Ext.B3 was marked at the appellate stage, no reliance was placed on the said document. What was argued by the leaned counsel is that in paragraph 15 of the judgment of the first appellate court it was stated that whether possession has been handed over to the second respondent is not clear from the evidence of DWs.2 and 3, and therefore, it is impossible to say that first respondent got possession of the plaint schedule property on the basis of Ext.A1, as execution of the sale deed has not been duly proved. But first appellate court did not rely on Ext.B3 even in paragraph 15 and did not find the case of the appellant incorrect or unbelievable on the basis of Ext.B3 or accepted the case of the respondent on the basis of the said document. Therefore, even if Ext.B3 was marked as an additional document and relied on by the first appellate court, on that reason alone the judgment of the first appellate court cannot be interfered with. 6. Appellant is claiming right and possession to the plaint schedule property, on the strength of Ext.A1 agreement. What is contended by the appellant is that under Ext.A1 agreement, sale was entered into between appellant and first respondent and though sale deed was not executed, he was put in possession of the property and since then he has been in possession of the property. Therefore, as rightly found by the first appellate court, the question R.S.A.No.59 of 2008 6 is whether Ext.A1 agreement was genuine and was executed by first respondent and appellant obtained possession thereunder. The date of Ext.A1 agreement is only some days after the execution of Ext.B1 sale deed. Ext.B1 sale deed was executed in favour of the brother of the appellant. It was executed by father of the first respondent and his brother Thomaskutty, as they were minors at that time. The first appellate court rightly considered the question of probability of entering into an agreement for sale with a minor especially when some days prior to that, his own brother obtained Ext.B1 sale deed from the father as the children were minors. 7. The first appellate court rightly considered the question whether execution of Ext.A1 was proved. Though reliance was placed by the trial court on Exts.A2 and A3, first appellate court found that there is nothing in Ext.A2 to show that those letters were received at Oman as claimed by P.W.1. On the evidence it disbelieved the case that Exts.A2 and A3 were executed by the first respondent. It is on the basis of this evidence and the circumstances of the case, first appellate court entered a factual finding that Ext.A1 agreement was not executed by the first respondent and there is no chance for the minor agreeing to sell the property as claimed by first respondent. When this factual finding was entered into by the first appellate court, unless that finding is based on a perverse appreciation of evidence, it R.S.A.No.59 of 2008 7 is not for this court to reappreciate the evidence and substitute the finding of fact entered by the final fact finding authority. On going through the judgment of the courts below, I cannot agree with the argument of the learned counsel that appreciation of evidence was either improper or perverse warranting re-appreciation of evidence. In such circumstances, the appeal is dismissed in limine. M.SASIDHARAN NAMBIAR, JUDGE vns