IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 RSA.No. 239 of 2008(C) --------------------------- AS.50/2004 of SUB COURT, VADAKARA OS.202/1999 of MUNSIFF COURT, VADAKARA .................... APPELLANT/APPELLANT IN AS/PLAINTIFF IN OS: ------------------------------------------------------ CHERUVALATH RAGHAVAN, S/O. KRISHNAN, AGED 69 YEARS, RESIDING AT VELLOTTUKANDIYIL, VADAKARA AMSOM, DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENTS: RESPONDENT/DEFENDANT: ------------------------------------------------ CHERUVALATH DHARMADASAN, S/O.KRISHNAN, AGED 50 YEARS, PROPRIETOR, KRISHNA IRON HOUSE, COURT ROAD, VADAKARA, VADAKARA AMSOM, DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.K.RAKESH ROSHAN FOR R1 SMT.THUSHARA.V THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. --------------------------------------------------- R.S.A. No 239 of 2008 --------------------------------------------------- Dated this the 15th July 2008 JUDGMENT The plaintiff who has lost his case concurrently in both the courts below is the appellant in this Second Appeal. He filed O.S. No 202 of 1999 before the Munsiff's Court, Vadakara for a decree declaring his title over the schedule property and for recovery of possession inter alia, on the allegation that the schedule property along with other properties originally belonged to Keloth Krishnan, the father of the plaintiff and the defendant, that on 20.10.1977 the father executed a Will in favour of the plaintiff in respect of the scheduled property; that on the death of Krishnan, the father, plaintiff became absolute owner of the scheduled property by virtue of the above Will and he was in possession thereof, that the building No 20/505 (new number 20/845) which is on the northern side of the plaint scheduled property belongs to the defendant as per the said Will; that the schedule shop room was vacant and on the request made by the defendant the plaintiff permitted him to use it as his godown for the purpose of business he was conducting in room bearing number 20/505, that such permission was given in the year 1981, that the defendant undertook to pay building tax in the name of the plaintiff; RSA 239/08 2 that O.S. 205 of 1996 was filed for partition of the property of the mother of the plaintiff and the defendant and that was decreed and there was a mediation talk with regard to the said property, that it was during the course of the said mediation talk that the plaintiff knew that there was an assignment deed in 1978 allegedly executed by him in favour of the defendant in respect of the schedule property, that in fact no assignment deed had been executed by him and he knew about it only in 1998, that no consideration was received by him under the sale deed, that it was only an oral entrustment of the building with the defendant; that the plaintiff sent a notice to the defendant revoking the permission granted and demanding possession of the property back, that the defendant sent a reply setting up false contention; that his contention that assignment deed was executed in relation to the scheduled property on 25.10.1978 is incorrect and hence the suit for the reliefs stated above. 2. The defendant resisted the suit by filing written statement. It is stated that the schedule property belonged to him; that the case of the plaintiff that the schedule property was entrusted by him to the defendant on oral permission for using it as godown is incorrect, that O.S. 205/96 was the partition suit filed by the defendant against the RSA 239/08 3 plaintiff and others for partition of the property of their mother; that the case of the plaintiff that it was during the course of mediation talk that he came to know about the assignment is incorrect, that as per the assignment in his favour made on 25.10.1978 he is in possession of the property and reply was issued stating those facts and that the plaintiff has no title over the schedule property and the suit is barred by limitation and the right of the plaintiff, if any, is lost by adverse possession and limitation. 3. On the above pleadings the trial court raised necessary issues for trial and considering also the evidence adduced at trial which consisted of the oral evidence of P.Ws 1 to 3 and D.Ws 1 to 4 and documentary evidence, Exts. A1 to A4, B1 to B48 and C1 and C2 dismissed the suit refusing the relief of declaration and recovery prayed for. The appellant plaintiff filed A.S. No 50 of 2004 assailing the dismissal of the suit. The said appeal was dismissed with costs by the first appellate court concurring with the findings of the trial court. Hence this appeal by the aggrieved plaintiff. 4. It is vehemently contended before me by the learned counsel for the appellant that as regards the authenticity of Ext B3 the reports of the experts Exts. X1 and X2 are not conclusive, that DW-3 RSA 239/08 4 scribe does not say as to who instructed him for drafting Ext B3, that DW-4 is an employee of the defendant himself, that the consideration shown in Ext B3 is only Rs 500/- and for such a consideration a building of the nature of the scheduled building located in the commercial heart of Vadakara town cannot be obtained; that the evidence of DW-2 to prove the handwriting of one of the attestors also cannot be accepted as conclusive and that in the circumstances the relief as prayed for should have been granted in favour of the plaintiff. 5. The plaintiff and the defendant are direct brothers they being sons of one Krishnan. The dispute between them is regarding the authenticity of Ext B3 assignment deed, copy of which is Ext A1. The document is dated 25.10.1978. According to the plaintiff the scheduled building belongs to him by virtue of Ext B1 Will executed by Krishnan, the father of the parties and the defendant would contend that the plaintiff was assigning the property in his favour under Ext B3 dated 25.10.1978. It is the case of the plaintiff that he permitted the defendant who is his brother to use the scheduled property which is a building as godown for his business and that was only in 1981 and he never executed any assignment deed in favour RSA 239/08 5 of the defendant. According to him he knew about Ext B3 only in 1998 in the discussion held to resolve the dispute which had arisen in the course of a partition suit filed in respect of the property that had been left behind by their mother. According to him, even though Ext B3 registered assignment deed is seen to have been executed in 1978, for about two decades he was totally unaware of such a document and he was throughout under the impression that the defendant had no other right over the scheduled property except the right he got by way of oral permission granted by him to use the building as a godown. 6. Ext A1 is the disputed document the original of which is Ext B3. Ext A2 is the copy of lawyer notice issued by the plaintiff to the defendant and Ext A3 is the reply thereof. Ext A4 is a copy of the decision taken in the mediation talk which took place in the house of one Dr P.P. Balakrishnan. The plaintiff who denied execution of Ext B3 applied before the trial court for expert opinion being obtained regarding the signature therein. Ext X1is the letter sent by the Director of Foresnsic Laboratory, Thiruvananthapuram to the trial court wherein it is stated that on a perusal of the documents it was seen that design of questioned signature did not tally fully with the RSA 239/08 6 specimen signatures and other standard signatures marked as Ext A1 and A2 series. But the standard signatures marked as Exts. A3 and A4 tallied fully with the disputed signatures. It was also reported that some standard signatures written in the normal course near about 1978 having similar design to that of disputed signatures would be required for purpose of comparison. Ext X2 is the report dated 13.10.2003 from the Director of Forensic Science Laboratory, Thiruvananthapuram and it shows that the questioned document was carefully and thoroughly examined. The result of examination was stated as follows:- The person who wrote the blue enclosed standard writings and signatures stamped and marked as X1 to X3, A1 to A9, A2(a) to A2(k), A3(a) to A3(e), A5(a) to A5(x) and A9(a) to A9(c) most probably also wrote the red enclosed questioned signatures marked as Q1 and Q1(a) to Q1(e). The reasons in support of the said conclusion were also furnished in a separate sheet. Exts. X1 and X2 were marked through P.W.1 during cross- examination. The deposition of P.W.1 as observed by the first appellate court does not show that any objection was raised at the time when Exts. X1 and X2 were being marked. The expert was however not cited and examined. The contention as regards the RSA 239/08 7 acceptability of Exts. X1 and X2 reports was repelled by the courts below on the ground that no objection had been raised at the time when the documents were sought to be got marked. Going by Ext X2 report it was found by the courts below that the opinion of the expert supports the defendant's contention as it could be seen that plaintiff himself has put the questioned signatures in the document. 7. The contention that was advanced before the courts below that the expert was not examined and therefore his report cannot be relied upon was repelled by the courts below for the reason that the report of the expert was not the solitary evidence on which the defendant relied but had adduced other evidence also to support his case. As rightly observed by the first appellate court, report of the expert can be relied upon when from the other attendant circumstances and evidence adduced in the case the report gets support as regards execution. Learned counsel for the appellant has singled out one sentence from Ext X2 report to contend that the expert has not given any definite opinion as the export has also stated that the questioned signatures are some what limited in extent and hence a definite conclusion could not be expressed. All the same, the expert has opined that the cumulative consideration of the RSA 239/08 8 similarities in significant writing characteristics found between questioned and standard signatures leads to the report embedded in para 2 that the standard signatures marked as Exts. A3 to A9, A3(a) to A3(e), A5(a) to A5(x) andA9(a) to A9(c) are quite consistent among themselves and that of standard items are reasonably consistent inter se and that on comparison the questioned signatures agree with the standard signatures marked as Exts. A3 to A9, A3(a) to A3(e), A5(a) to A5(x) and A9(a) to A9(c) in significant writing characteristics mentioned in the report. The contention advanced as above by the learned counsel is not of much significance in the circumstances. Further, the defendant had got himself examined as D.W.1 and had also examined D.Ws 2 to 4 to prove his contention that he has got title over the property by reason of Ext B3 assignment deed in his favour. One of the attesting witnesses in Ext B3, Padmanabhan is admitted to be not alive at the time of trial of the case. To establish that the aforesaid Padmanabhan has signed in Ext B3 as attester D.W.2 was examined by the defendant who gave evidence fully supporting the defendant's case. He is running a studio and is also Secretary of the Merchants Association Welfare Committee Trust of which Padmanabhan was the Chairman. Ext X4 RSA 239/08 9 is the register of the Trust and it is in the handwriting of D.W.2 and D.W.2 has identified the signature of Padmanabhan in the said document. This shows the familiarity of D.W.2 with the signature of Padmanabhan. According to him, Ext B3 contains the signature of Padmanabhan, the attesting witness. In cross-examination of D.W.2 no question was put to him suggesting that he had any animosity towards the plaintiff. On the other hand suggestion put to him was as to whether he was not speaking falsehood as he was inimically disposed towards Padmanabhan as has been observed by the first appellate court. If that be so, D.W.2 had no reason to give evidence that he was familiar with the signature of Padmanabhan and that Ext B3 contains the signature of Padmanabhan as the attesting witness. Nothing could be elicited in cross-examination of D.W.2 which would cast any doubt regarding his evidence that he was familiar with the signature of Padmanabhan and that Ext B3 contains the signature of Padmanabhan. As observed by the first appellate court the evidence has proved that Padmanabhan has signed in Ext B3 as an attesting witness. 8. The other attesting witness Krishnan Nambiar was examined by the defendant as D.W.4 who has also supported the RSA 239/08 10 execution of the document by the plaintiff. According to him, at the time of execution of Ext B3 he was working with D.W.3 scribe and he swears that Ext B3 was executed by the plaintiff. According to him, plaintiff as well as Padmanabhan the other attesting witness were known to him. He has deposed that he had seen P.W.1 the plaintiff and the attesting witness Padmanabhan affixing their signatures in the impugned document and he deposed further that he himself has put his signature in the document. It has been brought out in cross- examination that he is an advocate's clerk and he used to prepare affidavits in the case for the defendant. However, as observed by the first appellate court there was nothing to indicate that he was giving false evidence against the plaintiff. The evidence of D.W.3 also supported the defendant's case. His testimony that it was he who wrote Ext B3 and he knew the parties and he had executed so many documents for the family members of the plaintiff and the defendant is not successfully assailed. D.W. 4 is his brother who was working with him. In cross-examination he has deposed that P.W.1 was known to him for a pretty longtime. His evidence was relied upon by the court below to come to the finding that Ext B3 was executed as contended by the defendant. RSA 239/08 11 8. It is the case of the plaintiff that the defendant is in occupation of the scheduled building on oral permission given by him to use the scheduled building in 1981 and it was only in 1998 that he came to know that there was an assignment deed relied on by the defendant to fasten his claim over the building. If at all entrustment of the building with the defendant was in 1981, as observed by the courts below, one would naturally expect documents to evidence that plaintiff was in possession of the scheduled building at least for the period from 1978 to 1981. The plaintiff was not able to produce even a scrap of paper to show that he was in possession of the building at least till 1981. On the other hand as found by the court below Exts B4 to B42 relied upon by the defendant would show that he was all along paying the tax in respect of the building from 1978 onwards. Exts. B43 to B45 would show that in the assessment register also the name of the defendant is shown as owner of the building. These documents lend ample support to the defendant's contention. Exts. B46 to B48 are communications sent by the defendant to the Vadakara Municipality claiming reduction in tax and that also supports the defendant's case that he was in occupation as owner in possession of the building. He has also established that he RSA 239/08 12 got possession and ownership over the building from the plaintiff as per Ext B3 assignment deed. It was in the above circumstances that the courts below concurrently found that the plaintiff is not entitled to decree of declaration of title and recovery of possession as claimed by him and concurrently held against the case of the appellant- plaintiff. There is no question of law and much less any substantial question of law arising for consideration in this case as is attempted to be made out. This appeal in the circumstances, is devoid of merit. 8. In the result, refusing admission I dismiss this R.S.A in limine. Sd/- K.P. BALACHANDRAN Judge 15/07/2008 en [true copy]