IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 AS.No. 262 of 1999(A) --------------------- OS.118/1995 of SUB COURT, TIRUR .................... APPELLANT(S): 3RD DEFENDANT: --------------------------------------------------- KANDARAM VALAPPIL MOIDEENKUTTY, S/O.VEERANKUTTY MASTER, TRIPRAMGODE AMSOM, ALATHIYOOR DESOM, THIRUR TALUK. BY ADVS. MR.N.SUKUMARAN, MR.K.ARUNKUMAR, MR.S.SHYAM, MR.BOBBY MATHEW KOOTHATTUKULAM. RESPONDENT(S): PLAINTIFF AND DEFENDANTS 1,2 AND 4: ---------------------------------------------------------------------------------------- 1. KUNHANANGATTIL KUTTU'S DAUGHTER PATHUTTY ALIAS PATHUMMAKUTTY UMMA, NADUVATTOM AMSOM, CHELLUR DESOM, THIRUR THALUK. 2. KUNHANANGATTIL KUNHAHAMMED HAJI'S WIFE, SUHARA, KUTTUIPURAM AMSOM, PERASSANNOR DESOM, THIRUR THALUK. 3. KUNHANANGATTIL SHAJI, S/O.KUNHAHAMMED HAJI, ..DO..DO.... 4. VALLIKKOTTUPARAMBIL ALIKUTTY, S/O.SAIDALAVI, KUTTIPUTAM AMSOM, PERASSANNOR DESOM, THIRUR TALUK. R1 BY ADVS. MR.R.RAJESH KORMATH, SMT.PREETHY KARUNAKARAN, SMT.MEENA.A., SMT.M.R.MINI, SMT.SANJANA R.NAIR, MR.V.S.ROBIN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.1887/1999 IN A.S.NO.262/1999 DISMISSED 25/06/2009 SD/- K.SURENDRA MOHAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss K.SURENDRA MOHAN, J. ------------------------------------------- A.S.No.262 of 1999 ------------------------------------------- Dated this the 26th day of June, 2009 JUDGMENT This is an appeal filed by the third defendant in O.S.No.118 of 1995 of the Sub Court, Tirur challenging the judgment and decree dated 8.12.1998. The court has granted a decree accepting the plaint claim. 2. The suit was filed by the first respondent - plaintiff for a permanent injunction against the defendants restraining them from trespassing into the plaint schedule property or from interfering in any manner with her possession and enjoyment thereof. The plaint schedule property is an extent of 6 acres and 24 cents comprised in R.S.No.406/2 of Kuttippuram Amsom. According to the plaintiff, she had purchased the property as per a registered assignment deed No.40 of 1974 of the Kuttippuram Sub Registry dated 31.12.1973 from one Savithri Kovil. Pursuant to the assignment deed, she was put in possession of the property. According to her, she has been in possession and enjoyment thereof ever since, paying the revenue in respect of the same. The first defendant - second respondent is the wife of Kunhahammed Haji, brother of the A.S.No.262 of 1997 2 plaintiff and the third respondent - second defendant is her son by him. The fourth respondent - fourth defendant is a nephew of late Kunhahammed Haji (elder sister's son). Kunhahammed Haji is said to have died ten months before the filing of the suit. The appellant is the brother of the first defendant - second respondent. Therefore, it can be seen that the parties are close relatives of each other. 3. According to the first respondent - plaintiff, her husband was employed in Kuwait and for about two years prior to the institution of the suit, she was residing in the house of late Kunhahammed Haji. Thereafter, due to some misunderstanding, she shifted residence to her husband's house. The plaintiff had obtained her share in the property of her father as per a partition in the year 1957. Thereafter, she had assigned a portion of the same to late Kunhahammed Haji. Shortly, thereafter, she purchased the plaint schedule property utilizing the sale price and some other amounts that she had received from her husband. Late Kunhahammed Haji had also purchased the property adjacent to the plaint schedule property. Since the plaintiff was residing in the house of late Kunhahammed Haji at that time, the title deeds relating to the plaint schedule property were kept by him. A.S.No.262 of 1997 3 4. There were yielding coconut palms, coconut seedlings and other cultivation in the plaint schedule property. The plaintiff was taking income from the property at all times. While so, late Kunhahammed Haji wanted the plaintiff to assign the plaint schedule property and the remaining extent of property that she had obtained as per the partition to him. But the plaintiff and her husband were not willing to do so. Consequently, there was misunderstanding between late Kunhahammed Haji and the plaintiff. Therefore, she shifted residence to her husband's house. According to her, after the death of Kunhahammed Haji, on 8.6.1995, when they went to the plaint schedule property for collecting green manure, defendants 1 to 3 obstructed them. Nevertheless, the plaintiff and her husband collected green manure from the property. Thereupon, the defendants threatened the plaintiff and her husband saying that the property belonged to the appellant - third defendant. According to them, the plaintiff had assigned the property to the fourth respondent - fourth defendant and he had in turn assigned the property to the appellant - third defendant. 5. According to the plaintiff, she has not executed and registered any document in respect of the plaint schedule property. A.S.No.262 of 1997 4 She also had not assigned the plaint schedule property to anyone. If late Kunhahammed Haji had colluded with his nephew and brother in law and had fabricated some documents in respect of the plaint schedule property, the same cannot bind her. She alleged that she was residing 4 kms. away from the property and was visiting the same only occasionally. Therefore, she prayed for a decree of permanent injunction against the defendants. In the alternative, a prayer is made that she may be granted a decree for recovery of the plaint schedule property on the strength of her title in the event of the court finding that she was not in possession. 6. The fourth defendant remained ex-parte. The first and second defendants supported the third defendant. The suit was contested only by the appellant - third defendant. According to him, the plaintiff had no right over the property. She had assigned the property to the fourth defendant as per registered assignment deed dated 29.12.1982 and thereafter the third defendant had purchased the property as per registered assignment deed dated 8.8.1986 for valid consideration. He claimed that he was in possession of the property and paying land tax in respect of the same. He also claimed that he had effected improvements in the property and that he was taking the income therefrom. A.S.No.262 of 1997 5 7. The plaint averment that the plaintiff was in possession and paying tax in respect of the property was denied. He has no knowledge about the assignment of the plaintiff's share in her family properties to late Kunhahammed Haji. However, he has stated that Kunhahammed Haji had property adjacent to the plaintiff's property. He denied that the plaintiff had been residing in the house of late Kunhahammed Haji and that all the documents relating to the property were in his custody. According to him, at the time of assignment of the plaint schedule property to the fourth defendant, the plaintiff had handed over the original title deeds thereof to him. The title deeds of the property were handed over to the third defendant by the fourth defendant when he purchased the property. He denied the allegation regarding misunderstanding between late Kunhahammed Haji and the plaintiff. He contended that the document assigning the property to the fourth defendant was executed for valid consideration and was genuine. The decision to assign the property was taken by the plaintiff's husband and the fourth defendant when they were together in Kuwait. Accordingly, the plaintiff had executed the assignment deed in favour of the fourth defendant. However, after sale of the property to the third defendant, the plaintiff and her husband had second thoughts and A.S.No.262 of 1997 6 they wanted re-assignment of the property in their favour. The third defendant had agreed to do so for a consideration of Rs.6,000/- per cent. The plaintiff and her husband agreed to purchase the property at the said rate and promised to pay an advance amount of Rs.1 lakh on the date of executing the agreement and the balance consideration within six months thereof. It is alleged that thereafter the plaintiff and her husband had taken away the original documents relating to the plaint schedule property for the purpose of preparing the sale agreement. Since the plaintiff and her husband did not turn up, the appellant-third defendant went to their house enquiring about the delay and thereupon they are alleged to have told that the documents had been entrusted to a document writer at Kuttippuram and that after getting the agreement prepared, they would come to his house with the advance amount of Rs.1 lakh. After a few days, the elder brother of the plaintiff's husband came to the house of the appellant - third defendant and informed him that the plaintiff and her husband were not in a position to pay the entire sale consideration within six months and required at least one year for paying the entire sale price. Thereupon, the appellant - third defendant went to the house of the plaintiff and asked her to return the original documents. When the plaintiff's husband A.S.No.262 of 1997 7 returned a bundle of documents, it was found that the original deed executed by the fourth defendant in favour of the appellant was missing. On enquiry, the plaintiff's husband told him that the document had been entrusted to the document writer at Kuttipuram and that the same had been misplaced by him. He promised to trace out the document and to return the same. However, the document was not returned and the appellant - third defendant had to get a registration copy of the same from the Sub Registry Office. It is only when he received summons in the suit that he realised how he was cheated into parting with the original document by the plaintiff. According to him, after obtaining the original document from him by practising fraud, the suit was instituted by the plaintiff suppressing the real facts. He claimed that he was entitled to recover value of improvements in the event of his being evicted from the property. On the above pleadings, he prayed for the dismissal of the suit. 8. The suit was tried by the court below on the above pleadings, after framing 9 issues. 1) Whether the plaintiff has assigned the property to fourth defendant as per the deed referred in the written statement? 2) Whether the property belongs to third defendant as alleged in the written statement? A.S.No.262 of 1997 8 3) Whether the plaintiff has got possession of the property? 4) Whether the right of plaintiff if any is barred by adverse possession and limitation? 5) Whether the incident alleged is true? 6) Whether the plaintiff is entitled to injunction prayed for? 7) Whether the plaintiff is entitled to recovery of possession of the property? 8) Whether the plaintiff is entitled to recovery of possession of the property? 9) Reliefs and costs? 9. The evidence in the case consists of the oral testimonies of PWs.1 and 2 and Exts.A1 to A11 documents on the side of the plaintiff and the oral testimonies of DWs.1 and 2 and Exts.B1 to B14 documents on the side of the defence. Exts.C1, C1(a) and C1 (b) were marked as court exhibits. The trial court considered the rival contentions of the parties in the light of the evidence on record and came to the conclusion that the document Ext.B2 which is alleged to have been executed by the plaintiff in favour of the fourth respondent - fourth defendant was a forged and fabricated document. Therefore, it has been found that the appellant and the fourth defendant had not aquired any title in respect of the property A.S.No.262 of 1997 9 and that consequently, Ext.B3 document executed by the fourth respondent - fourth defendant in favour of the appellant has not conveyed any title to him. On the plea of adverse possession, the court below found that there is no evidence in the case to show that either the appellant - third defendant or the fourth respondent - fourth defendant had possession over the plaint schedule property at any time. It has been found that the materials clearly prove that the plaintiff is in possession of the property. In view of the above findings, the court below decreed the suit rejecting the contentions put forward by the appellant-third defendant. It is the said judgment and decree that is under challenge in the above appeal. 10. I have heard the learned counsel for the appellant Sri.N.Sukumaran for the appellant and Smt.Preethi Karunakaran for the first respondent. I have been taken through the pleadings and the evidence in the case, both oral and documentary. Extensive arguments have also been advanced from both sides. 11. The points that arise for consideration are:- 1) Whether the appellant - third defendant has acquired title to the plaint schedule property, as claimed? A.S.No.262 of 1997 10 2) Whether the appellant has perfected title to the plaint schedule property by adverse possession and limitation? 12. Point No.1: According to the appellant, the plaintiff - first respondent has executed a sale deed transferring the title in respect of the plaint schedule property to the fourth respondent as per a registered document dated 29.12.1982. The said document has been marked as Ext.B2. Pursuant to Ext.B2, the fourth respondent was in possession of the property. Subsequently, he has conveyed the plaint schedule property to the appellant - third defendant by another registered document dated 8.8.1986, which is marked as Ext.B3. The plaintiff - first respondent had purchased the plaint schedule property as per registered document dated 31.12.1973 executed by one Savithri Kovil in her favour. A certified copy of the said document is marked as Ext.A1, while the original thereof is produced by the appellant and marked as Ext.B1. The above document Ext.A1 is admitted by all parties. According to the first respondent - plaintiff, Ext.B2 document was not executed by her and is a fabricated document. Therefore, she filed I.A.No.1559 of 1995 praying for a direction to the appellant-third defendant to produce the original of Ext.B2 document before court. The A.S.No.262 of 1997 11 appellant - third defendant filed an affidavit in the said petition contending that he was not in possession of the said document and that the original had been taken away from him by the plaintiff and her husband. Thereupon I.A.No.1895 of 1995 was filed by the plaintiff for a direction to call for the thumb impression register maintained in the office of the Sub Registrar, Kuttippuram. Pursuant to the direction of the Court, the Thumb Impression Book relating to the registration of the original of Ext.B2 assignment deed was produced. The thumb impression of the first respondent - plaintiff was taken in the open court and the admitted thumb impression as well as the disputed thumb impression in the Thumb Impression Book were sent for comparison to the Finger Print Bureau, Thiruvananthapuram. After comparison of the thumb impressions, it has been found by the finger print expert that the questioned thumb impression contained in the Thumb Impression Book relating to the registration of the original of Ext.B2 is not made by the left thumb of the plaintiff. The expert opinion and the photographic enlargements of the disputed and admitted thumb impressions are marked as Exts.C1, C1(a) and C1(b). I have compared the enlarged photographs, Exts.C1(a) and C1(b). It is clear that Exts.C1(a) and C1(b) are not identical, but are made by A.S.No.262 of 1997 12 different persons. Therefore, the report of the expert, Ext.C1 is correct and has to be accepted. 13. The evidence of the first respondent - plaintiff as PW1 is clear on this point. She has denied execution of Ext.B2 document. The appellant has not adduced any other evidence to prove the due execution of Ext.B2 document like examining the attesting witnesses or scribe or the Registrar who registered the document. Therefore, it is clear that Ext.B2 must have been the result of fraud and impersonation. The counsel for the appellant vehemently argued that the plaintiff's case in the plaint and in her oral evidence were at variance with each other. However, it is to be remembered that the plaintiff is a house wife and a rustic lady with little or no education. The discrepancies pointed out are only of a minor nature and are not sufficient to dislodge her evidence. It can be seen that in all material particulars, her pleadings and evidence are consistent with each other. 14. The counsel for the appellant pointed out that the opinion of the expert has only stated that the questioned thumb impression was not that of her left thumb. Therefore, it could have been the impression of her right thumb. The counsel also finds fault with the plaintiff for not having sent her signature for verification, though she A.S.No.262 of 1997 13 was a person who was in the habit of affixing her signature. However, it is worth noticing that no objections have been filed by the appellant to the report of the expert, Ext.C1. The appellant has also not taken any steps to have the right thumb impression of the plaintiff also subjected to an examination by the expert. Nor has the plaintiff's signature been sought to be examined. Having omitted to adopt any of the above courses, it is not open to the appellant to contend that the opinion of the expert, Ext.C1 should be discarded for the above reasons. It is further pointed out that the report of the expert is only an item of evidence and is not conclusive. True, the opinion of the expert is only an item of evidence. Nevertheless, it is an item of evidence that has great probative value. I have also made a comparison of the questioned and admitted thumb impressions and have no doubt in my mind that they are different from each other and are not made with the same thumb. Since Ext.B2 is a registered document, the counsel for the appellant contends that due execution of the document is a matter of presumption under Section 114 of the Evidence Act. However, presumptions are of no consequence, when there is evidence to show that the document itself is not genuine and not executed by the person who is alleged to have executed the same. A.S.No.262 of 1997 14 15. Therefore, the finding of the court below that Ext.B2 is not genuine and that the 4th respondent had not acquired any title under the same, is liable to be sustained. Consequently the appellant has also not acquired any title in respect of the property as per Ext.B3. It is so found. 16. Point No.2:- According to the counsel for the appellant, the plaintiff and her husband who has been examined as PW2 have conflicting versions regarding even the original of their sale deed. It is pointed out that Ext.A1 is only a certified copy of her sale deed while the original thereof which has been marked as Ext.B1 has been produced by the appellant. The plaintiff has no explanation as to how the appellant came into possession of the said document. Though the plaintiff deposes as PW1 that she has seen her original title deed, according to her husband, PW2, the original thereof was with late Kunhahammed Haji. Though he was asked to return the original title deed, he had not done so, it is stated. It is to be noted that the case in the plaint itself is that the original title deeds of the plaintiff's property were in the custody of late Kunhahammed Haji. Therefore, the appellant - third defendant, who is the brother in law, could have obtained the same from him. At any rate, possession of the said document does not raise any presumption that it would A.S.No.262 of 1997 15 have been handed over to the appellant by the fourth defendant after executing Ext.B3 sale deed. 17. Exts.A2 to A8 revenue receipts show that the plaintiff has been paying tax in respect of the plaint schedule property. According to the counsel for the appellant, the plaint schedule property is covered by patta No.43 and the said fact has been admitted by PW1 also, it is pointed out. According to him, Exts.B4 to B6 revenue receipts in his name show that he had been paying the tax in respect of the said property. Exts.B7 to B13 are the revenue receipts in respect of the very same property for the period 1986-1987 to 1997-1998. The revenue receipts produced by the plaintiff are attacked on the ground that they relate only to the period after 1995. 18. It is true that the plaintiff has stated as PW1 that the plaint schedule property is covered by Patta No.43. However, the above mistake has been clarified by her husband PW2, who has stated that she had owned properties in both Patta No.43 and Patta No.1220. He has deposed that Patta No.43 is in respect of one 'Kundukadu Meppuram Paramba', another item of property that was sold by her. It is to be noted that Exts.A2 to A4 revenue receipts show both Patta No.43 and 1220, but in Exts.A5 to A7 A.S.No.262 of 1997 16 revenue receipts, which relate to the period after the sale of the said property, only patta No.1220 is mentioned. Ext.A11 is the possession certificate issued in the name of the plaintiff. A perusal of the documents produced on the side of the first respondent/plaintiff clearly shows that she is in possession of the property. As rightly found by the court below, the oral evidence of DW2 is not at all helpful in deciding the above aspect. The counsel for the appellant has relied on Section 27 of the Limitation Act and the decision of the Hon'ble Supreme Court reported in Mrs.Moti Natwarlal and others v M/s Raghavayya Nagindas & Co. (AIR 1977 S.C.1778) to contend that even if the appellants' coming into possession of the property was not through any lawful means, uninterrupted possession and enjoyment of the property over the statutory period would result in perfection of his title by adverse possession and limitation. However, the said decision has no application to the present case for the reason that in this case there is no evidence to show that the appellant had possession over the plaint schedule property at any time. 19. On a consideration of the evidence in the case, both oral and documentary, it can be seen that there is no evidence regarding the execution of Ext.B2 document by the plaintiff. On the A.S.No.262 of 1997 17 contrary, there is evidence to show that the document is not genuine. The opinion of the finger print expert shows that the finger print affixed at the office of the Sub Registrar at the time of execution of Ext.B2 document is not that of the plaintiff. The original of Ext.B2 document is not forthcoming. The appellant - third defendant has not taken any steps to prove the execution thereof. The fourth defendant has not contested the suit and he has also not been examined as a witness. Therefore, it is clear that Ext.B2 is not a genuine document and no title has been conveyed by the plaintiff to the fourth defendant in respect of the plaint property, as contended. There is also no evidence to show that the appellant has possession over the plaint schedule property. The evidence on record shows that the plaintiff is in possession thereof. In view of the above, the court below was right in dismissing the suit. For the foregoing reasons, there are no grounds to interfere with the judgment and decree of the court below. The appeal fails and is dismissed. No costs. K.SURENDRA MOHAN, Judge css/ A.S.No.262 of 1997 18 K.SURENDRA MOHAN,J. --------------------------------------- AS.No.262 of 1999 --------------------------------------- JUDGMENT 26.6.2009