IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 SA.No. 688 of 1998() -------------------- AS.199/1995 of ADDL.DISTRICT COURT, KOZHIKODE OS.120/1993 of SUB COURT, QUILANDY .................... APPELLANT(S): (2ND RESPONDENT/2ND DEFENDANT): ----------------------------------------------------------------------------------- MADATHIL KUNNUMMAL KALLIANI, D/O.KANNAN ALIAS CHERUPPAN, RESIDING AT CONGARA KUNI KIZHAKKE AMSOM PARAMBIL, CHERAPPURAM AMSOM & DESOM, KOYILANDY TALUK. BY ADVS. SRI.C.P.DAMODARAN NAYAR, SRI.JOJI VARGHESE, SRI.T.P.ELDHOSE, SRI.D.KRISHNA PRASAD, SRI.M.HARISHARMA. RESPONDENT(S): (APPELLANT & RESPONDENTS 1, 3, 4 & 5/ PLAINTIFF & DEFENDANTS 1, 3, 4 & 5): -------------------------------------------------------------------------------------- 1. MULLERI THAZHA KUNIYIL SANTHA, D/O.KANARAN, RESIDING AT NELLACHERI THAZHA KUNIYIL, MANNARATHU AMSOM AND KURUNNODI DESOM, VADAKARA TALUK. 2. MADATHIL KUNNUMAL KUNHIRAMAN, S/O.KANNAN ALIAS CHERUPPAN, RESIDING AT THARATH VEETTIL, MENIYUR AMSOM, ELAMOILAD DESOM, VADAKARA TALUK. 3. MADATHIL KUNNUMMAL KANARAN, S/O.KANNAN ALIAS CHERUPPAN, RESIDING AT NEELACHERI THAZHA KUNIYIL, MANNARATHUR AMSOM, KURUNNODI DESOM, VADAKARA TALUK. 4. PUNATHIL MEETHAL NANU, S/O. KANNAN ALIAS CHERUPPAN, RESIDING AT MUTHUVANAPARAMBATH, MANARATHU AMSOM, MUDUPPILAVI DESOM, VADAKARA. 5. PUNATHIL MEETHAL KELAPPAN,S/O. KANNAN ALIAS CHERUPPAN, RESIDING AT MANIYUR AMSOM, ELAMBILAD DESOM, VADAKARA. R1 BY SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE, BY ADV. SRI.T.SETHUMADHAVAN. R2 TO R5 BY ADV. SRI.K.MOHANA KANNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NOS.1956 & 1957/1998 IN SA.NO.688/1998 DISMISSED 30/05/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss P.BHAVADASAN, J. ---------------------------- S.A.No. 688 of 1998 --------------------------------- Dated this the 30th day of May, 2011 JUDGMENT The second defendant in O.S.No.120/1993 before the Sub Court, Quilandy, who along with other defendants suffered a decree at the hands of the lower appellate court is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff claimed to be the absolute owner in possession of a suit property by virtue of Ext.A6 purchase certificate dated 11.03.1991. The short case put forward by her was that Kannan the original owner of the property had executed a lease deed in favour of his brother Koran, whose legal heirs transferred the lease hold right in her favour. It is pointed out that the suit properties were included in an earlier suit for partition namely O.S.No.112/1976 wherein she was not a party. The preliminary decree was passed in the said suit and final decree proceedings were initiated. It is only when the commissioner reached the property to effect partition by metes and bounds she S.A.No. 688 of 1998 2 come to know about the decree in O.S.112/1976. Hence the present suit was laid for a declaration that the decision in the earlier suit is not binding in the suit property. 3. Among the defendants the second defendant alone had chosen to contest the suit. Defendants 1 and 4 were declared as exparte, the other defendant did not file written statement. According to the second defendant, the plaintiff had no manner of right over the suit property. Even though, Kannan the original owner of the property had executed lease deed in favour of Koran, that had not taken effect and Kannan continued to be in possession and enjoyment of the property. It is pointed out that the third defendant in the present suit was also the third defendant in the partition suit and he is none other than the husband of the plaintiff. It is inconceivable that the plaintiff would have been in the dark about the earlier suit in such circumstances. In short second defendant would say that the present suit is nothing but a collusive one between the third defendant and the plaintiff. Any order passed by the Land Tribunal in the matter is not binding on the second defendant. S.A.No. 688 of 1998 3 issue a partition in the suit. On the basis of these contentions, he prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A21 from the side of the plaintiff. The contesting defendant does not chose to adduce any evidence at all. 5. The trial court was impressed by the contention of second defendant that no rent receipts were produced evidencing the lease and also since the order of the Land Tribunal issuing purchase certificate had not been produced, the purchase certificate is of no value. Holding so, the suit was dismissed. 6. The aggrieved plaintiff carried the matter in appeal as A.S.No.199/1995, the lower appellate court after a reconsideration of the materials before it came to the conclusion that the trial court was not justified in discarding Exts.A1 to A4 and held that the plaintiff had succeeded in showing that suit properties were not available for partition in O.S.112/1976 and accordingly granted a decree in favour of the plaintiff. The S.A.No. 688 of 1998 4 disappointed second defendant has come up in appeal. 7. Notice is seen issued on the following substantial questions of law: 1. Is not the present suit barred by the principles of resjudicata or constructive resjudicata, in view of Exts.A19 and A19 and the proceedings connected therewith. 2. When a party unsuccessfully seeks to intervene in a suit, cannot knowledge of such proceedings be attributed to such party and does it not preclude such party from filing a fresh suit to set aside the decree passed in the said suit. 3. Is not a party estopped from questioning the decision in an earlier suit decided by a competent Court, if the conduct of such party amounts to acquiescence. 4. When a document on the basis of which the plaintiff seeks to lay a claim over the property is attacked as not having been acted upon, is not the burden on the plaintiff to establish by clear evidence, that the said document was acted upon. 5. Whether under the facts and circumstances of the case, does not the non-production of any tax receipts or revenue receipts evidencing payment of amounts thereunder either by Koran or as his legal representatives indicative of the fact that no leasehold right vested in the said Koran. 6. Whether under the facts and circumstances of the case, is not the non-examination of the assignors under Exts.A3 to A5 fatal to the plaintiff's case. S.A.No. 688 of 1998 5 8. The learned counsel appearing for the appellant pointed out that the lower appellate court was not justifying in decreeing the suit reversing the finding of the trial court. The trial court had given cogent and convincing reasons as to why the lease put forward by the plaintiff could not be accepted and also for not accepting Ext.A6 purchase certificate. The lower appellate court was wrong in taking a different view regarding those documents and that had resulted in miscarriage of justice. The learned counsel also went on to point out that it is unbelievable and inconceivable that plaintiff would not have known about earlier suit namely O.S.112/1976 which was the suit for partition, in which her husband was the third defendant. The trial court had considered the evidence on record meticulously and had found that the present suit is nothing but a collusive affair between the plaintiff and third defendant. The learned counsel pointed out that the decree of the lower appellate court is clearly unsustainable in law. 9. Per contra, the learned counsel appearing for the contesting respondent pointed out that the lower appellate court S.A.No. 688 of 1998 6 was justified in reversing the trial court decree for reasons given by the lower appellate court. It was not proper on the trial court to discard Exts.A1 to A5 and also in holding that Ext.A6 cannot be treated as valid and binding. It is also pointed out that in fact there was a purchase certificate produced in the earlier suit and it was found against. It would also show that the case set up the plaintiff in the present case is false and therefore, the purchase certificate obtained by the plaintiff namely Ext.A6 is binding on the second defendant. Accordingly, the judgment and decree of the lower appellate court does not call for interference. 10. The contentions that Ext.A1 Kanam Kuzhikanam deed executed Kannan in favour of Koran had not taken effect is difficult to accept. Ext.A17 is the plaint in O.S 112/1976. In paragraph 8, it is mentioned that the property originally belonged to Kannan and a portion of item No.8 and whole of item No.9 involved in that suit was outstanding on lease. Those items are the plaint schedule property in the present suit. 11. The appellant was unable to explain as to the reasons for Kannan to execute Exts.A1 and A2 in favour of Koran. It is S.A.No. 688 of 1998 7 also significant to notice that Exts.A3 and A4 are prior to the earlier suit namely O.S.No.112/1976 which was the suit for partition in which the present third defendant husband of the plaintiff is the third defendant. 12. There is no explanation offered by the appellant as to how Exts.A3, A4 and A5 had come into existence if as a matter of fact Ext.A1 has not been acted upon. The trial court was not justified in discarding Ext.A6. Ext.A6 is a purchase certificate obtained by the plaintiff. Going by Section 72 K of the Kerala Land Reforms Act, it is conclusive regarding the assignment of right title and interest of the property covered by purchase certificate in favour of the person, to whom it is issued. This court had occasion to hold that the person holding a purchase certificate will be deemed to be in the possession of the property also. The trial court discard the purchase certificate on the ground that the plaintiff had not chosen to produce the order which culminated in Ext.A6 purchase certificate. Obviously, the courts below have overlooked Section 72 K of the Kerala Land Reforms Act. If as a matter of fact, the second defendant had S.A.No. 688 of 1998 8 a case that purchase certificate was vitiated by fraud and collusion it is for him to establish the said fact. Merely stating that the purchase certificate is obtained by fraud and collusion will not suffice. Unless shown otherwise it will be presumed that the proper procedure has been followed in issuing Ext.A6 purchase certificate. 13. The trial court noted that no documents were produced to show payment of rent has been produced by the plaintiff. May be there is some substances in the said finding. However in the light of Exts.A1 , A3, A4, A5 and Ext.A6 it cannot be given undue importance. The plaintiff has produced Exts.A7 to A16 which are the revenue receipts relating to the suit properties for the period of 1981-1990. It is true that PW1 has stated that she has got other properties in the same survey number. 14. The trial court discarded Exts.A7 to A16 pointing out that since the plaintiff admitted that she has other properties in the same survey number the receipts could be related to some other property. S.A.No. 688 of 1998 9 15. The lower appellate court found that there was no effective challenge to Ext.A3 to A5 which are proved. The observation of the court is that since the execution of those documents have not been examined, they cannot be taken note, as rightly noticed by lower appellate court, erroneous. The person in whose favour those documents were executed had been examined. The reasons given by the trial court to discard the valid document is thus unsupportable. 16. Again it is significant to notice that no oral evidence was adduced by the defendants. The signature in Ext.A1 is not disputed. As already the plaint schedule item even going by Ext.A17 is stated to have been outstanding on lease. Therefore, it could not be said that Kannan could not have executed Ext.A1 with the intention that it should take effect and that properties remained with him. No acceptable explanation is offered as to why Kannan should do so. 17. It was the above facts which persuaded the lower appellate court to take a view in favour of the plaintiff. On an independent evaluation of the evidence, the lower appellate court S.A.No. 688 of 1998 10 found that the trial court was not justified in non-suiting the plaintiff. It could not be said that the findings of the lower appellate court are either perverse or unwarranted by the evidence on record. The result is that no question of law much less any substantial question of law arises for consideration in the second appeal. The second appeal is without merits what so ever and it is accordingly dismissed. No order as to costs. P.BHAVADASAN, JUDGE. ln