IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 Ex.FA.No. 38 of 2010(A) --------------------------------- [E.A. NO.590/08 IN E.P. NO. 76/08 IN OS.NO.337/1989 OF PRINCIPAL SUB COURT, PALAKKAD] .................... APPELLANT/CLAIM PETITIONER: ------------------------------------------------ CHAMI ALIAS RAMACHANDRAN, S/O.LATE CHATHAN ALIAS CHAMUNNI, RESIDING AT HOUSE NO.6/425, THUPPALAMGADU, KARIMKARAPULLY AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. BY SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE, ADVS. SRI.P.G.RAJAGOPALAN, SRI.M.GOPIKRISHNAN NAMBIAR. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. P.V.VENUGOPAL, S/O.P.A.VENKITESWARA IYER, ASHIRWAD, 36/363, ST.FRANCIS XAVIER CHURCH ROAD, CHAKKAMADAM LINE, KALOOR, COCHIN - 682 017. 2. P.V.KRISHNAMOORTHY, S/O.P.A.VENKITESWARA IYER, OF DO. DO. 3. P.V.RANGANAYAKI, W/O.N.DEVARAJAN, KAITHARATHU MADAM, EDAYAZHAM, VAZHIVECHOOR, VAIKOM - 686 141. 4. P.V.SEETHALAKSHMI, W/O.S.K.MANI, XX/II VANDANA, PULINCHODU STOP, ALUVA - 683 101. 5. VENKITESWARAN ALIAS D.BALAJI, S/O.P.V.DAMODARA SARMA, ASHIRWAD, 36/363, ST.FRANCIS XAVIER CHURCH ROAD, CHAKKAMADAM LINE, KALOOR, COCHIN - 682 017. EX.F.A.NO.38/2010-A: 6. P.V.RAMAKRISHNAN, S/O.P.A.VENKITARAMA AYYER, 18/626, TALI ROAD, KOZHIKODE - 673 001. 7. P.V.JAYARAMAN, S/O.P.A.VENKITARAMA AYYER, SREYASRAJI, NO.18, IST FLOOR, 16TH CROSS, ST.BASANTH NAGAR, CHENNAI - 600 090. 8. P.V.RANGANAYAKI, W/O.LATE T.G.SAHASRAMAMAYYAR, THIRUNELLAYI VILLAGE P.O., PALAKKAD - 20. 9. P.V.ANANTHALAKSHMI, D/O.LATE I.V.ANANTHANARAYANAN, SREENIKETHAN, 1/570 (1), CHATHAPURAM VILLAGE, PALAKKAD - 3. 10. P.V.RADHAMANI, W/O.R.SESHAMANI, 9/351, INDIRA NAGAR, THARUVATHAPADI, PIRAYIRI P.O., PALAKKAD - 19. *11. C.R.JANAKI, *(DIED) W/O.LATE P.V.DAMODARA SARMA, YES TEMPLE TOWERS, THIRUVENKKANAGAR, AMPATHOOR, CHENNAI - 90, TAMILNADU STATE. *IT IS RECORDED THAT RESPONDENTS 6 TO 10 ARE THE LEGAL REPRESENTATIVES OF THE DECEASED 11TH RESPONDENT VIDE ORDER DTD. 07/10/10 IN I.A. 2512/2010. 12. V.D.PRAKAS, S/O.LATE P.A.VISWANATHAN, 27/33, MARUTHAM NAGAR, VADAVALLI, COIMBATORE - 41. 13. V.RAMAKRISHNAN, S/O.LATE P.A.VISWANATHAN, OF DO. DO. 14. V.MEENAKSHI, W/O.LATE P.A.VISWANATHAN, OF DO. DO. 15. V.MEENAKSHI, D/O.LATE P.A.VISWANATHAN, NEW NO.16, FLAT NO.3, PAPANASAM SIVAM ROAD, SANTHOMI, CHENNAI - 4. 16. VIDHYA, D/O.R.SUKUMARAN, 3/4, 4TH SECTOR, 13TH STREET, K.K.NAGAR, CHENNAI – 4. EX.F.A.NO.38/2010-A: 17. T.K.RATHNA BABU, S/O.KITTA ALIAS KRISHNAN, THUPPALAMGADU KALAM, KARIGARAPULLY AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT - 678 001. 18. T.K.MOHAN BABU, S/O.KITTA ALIAS KRISHNAN, OF DO. DO. 19. T.K.PREMAKUMARI, D/O.KITTA ALIAS KRISHNAN, OF DO. DO. R1 TO R10 & R12 TO R16 BY ADVS. SRI.P.B.KRISHNAN, SRI.P.M.NEELAKANDAN, SMT.GEETHA P.MENON, R.18 & R.19 BY ADV. SRI.O.K.MURALEEDHARAN. THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. EX.F.A.NO.38/2010-A: ORDER ON I.A. NO. 1915/2010 IN EX.F.A. NO.38/2010 DISMISSED 21/10/2010. SD/- HARUN-UL-RASHID, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. ------------------------------- EX.F.A. NO. 38 OF 2010 ------------------------------- DATED THIS THE 21ST DAY OF OCTOBER, 2010 JUDGMENT The petitioner in E.A.No.590/2008 in E.P.No.76/2008 in O.S.No.337/89 on the file of the Sub Court, Palakkad is the appellant. By order dated 6th July, 2010 the learned Sub Judge dismissed the petition holding that the applicant has no right or possession over the properties shown in the schedule to the application. Aggrieved by the dismissal, the petitioner has preferred the appeal. The parties are hereinafter referred to as the petitioner and respondents as arrayed in the claim petition. 2. The execution petition was filed by the plaintiffs in O.S.No.337/89 seeking to execute the final decree passed in the suit for partition. Plaintiffs are respondent Nos. 12 and 13 in E.A.No.590/2008. Respondents 1 to 11 and 14 to 16 are the other sharers. Respondent No.17 is the 15th defendant and respondent Nos.18 and 19 are not parties to the suit; but are impleaded as -2- EX.FA.NO.38/2010 respondents 18 and 19 in the E.A. Admittedly, the plaint schedule properties belonged in jenm to Ayya Pattar. Plaintiffs claimed right over the properties as the legal heirs of Ayya Pattar. Respondents 17 to 19 in the E.A. are the grand-children of late Mallu. They are the children of late Kitta @ Krishnan. A Final decree for partition was passed on 31/10/2007. The properties shown in the A schedule to the final decree were allotted to the plaintiffs and the properties described in the B schedule were allotted to defendants 1 to 14. The plaintiffs filed E.P.No.76/2008 on 11/4/2008 praying for delivering A schedule properties to them. The properties sought to be delivered in the execution petition is a portion of item No.2 shown in the schedule to E.A.No.590/2008. The petitioner in the said E.A. claimed right, title and possession over the plaint A schedule properties by virtue of Ext.A6 lease deed dated 12/5/1963. The contesting respondents has specifically pleaded that Ext.A6 is a document forged for the purpose of this application. It is the further case of the petitioner -3- EX.FA.NO.38/2010 that after the execution of Ext.A6 document on 12/4/1963 the petitioner erected a thatched hut and dug a well in the A plaint schedule properties. Subsequently, the thatched hut was demolished and a tiled house was constructed in that place. It is also stated that the said house was assessed for the purpose of payment of property tax and the house situated bears assessment No.6/425 of Kodumbu Panchayat. The petitioner also claimed that he has effected improvements in the property and that he is residing in the house situated in the property along with his family. He claimed tenancy right over the property in dispute. The plaintiffs and defendants in the suit, namely, respondents 1 to 16 have obtained a decree in the suit for partition in their favour. 3. The petition was filed alleging that the plaintiffs and defendants, who obtained a decree in O.S.No.337/1989, are trying to grab the petition schedule properties from the petitioner in the execution proceedings. The petition was filed seeking to establish the right, title and interest over the property sought to be delivered -4- EX.FA.NO.38/2010 in execution of the decree in the suit. The petitioner also prayed for reference under Section 125(3) of the Kerala Land Reforms Act for adjudication of the question of tenancy right. The contesting respondents denied the claim of the petitioner and contended that Ext.A6 is a document forged for the purpose of filing the claim petition. The petition itself is filed with the intention to delay and defeat the execution of the decree passed in O.S.No.337/89. The plaintiffs in the suit have 2/9 shares over the plaint schedule properties and the balance shares were allotted to defendants 1 to 14. It is contended that the white paper lease deed was fabricated as it was not possible to create tenancy after 1-4-1964. According to the contesting respondents, it is evident from the attendent circumstances that the documents produced by the applicant are concocted documents. According to them, respondents 18 and 19 executed assignment deed and correction deed obviously with an intention to manipulate evidence and that those documents were executed immediately after the disposal of the appeal by this Court -5- EX.FA.NO.38/2010 on 7/3/2007. It is also contended that in the ceiling case initiated against Kitta @ Krishnan, son of Mallu, it was held by the Taluk Land Board that 7.97 acres of land was not in possession of Kitta @ Krishnan. According to the contesting respondents, there is no merit in the contention raised in the claim petition that the applicant got the properties on lease from Mallu. The contesting respondents also denied the case set up by the applicant that he had constructed a tiled house and effected improvements in the plaint schedule property. According to them, it is evident from the Commissioner's report filed in the final decree proceedings that no house was situated in the petition schedule item No.2 at the time of inspection of the Commissioner. It is further contended that since the applicant has no manner of right or possession over the plaint schedule properties, the petition is liable to be dismissed. 4. The contentions of the respective parties were considered by the court below in detail. The court below examined the documents produced by the parties and held that the -6- EX.FA.NO.38/2010 petition is without any merit. The court below observed that marking of Ext.A6 document was opposed on the ground that the same shall be proved by examining the parties to the document; but the applicant has not chosen to examine the parties to the documents or to adduce oral evidence. The court below further held that the petitioner ought to have proved Ext.A6 document by giving oral evidence or examining persons, who purportedly signed Ext.A6 as witnesses. I have perused the proceedings of the court below in the light of the above-said observations made by the court. The proceedings of the court below would show that on 17/3/2010 E.A.No.89/09 has been dismissed. The court below on that day adjourned E.A.N.590/2008 to 21/5/2010 for enquiry and it is endorsed that no further time will be granted. On 21/5/2010 there was no sitting, as the Judge was on leave. The case was posted to 8/6/2010. On that day the petitioner adduced evidence. Exts.A1 to A5 were marked. Ext.A6 was also marked subject to the objection that the same shall be proved by examining the -7- EX.FA.NO.38/2010 parties to the document. Exts.B1 to B3 were also marked on the side of the respondents 18 and l9 and Exts.B4 to B7 were marked on the side of respondents 1 to 16. Ext.X1 was also marked. After marking these documents, the court adjourned the case for orders. It was endorsed that both sides were heard. For orders the case was adjourned to 22/6/2010. On 22/6/2010 order not ready, therefore, the case again adjourned to 28/6/2010 and thereafter to 6/7/2010. The order was passed on that day. From the proceedings noted above, it can be seen that Ext.A6 document was marked subject to the objection that the same shall be proved by examining the parties to the document. After marking of the documents on 8/6/2010 there was no posting for further evidence. In fact, for the purpose of proving Ext.A6 document an opportunity should have been given to the claimant for examining the parties to the said document. Moreover, it is not seen that the case was not adjourned for further evidence, so that the parties to the proceedings can avail of opportunity to adduce oral evidence as well. A single further -8- EX.FA.NO.38/2010 postings for evidence would have served the ends of justice. The court below, after marking some documents without adjourning the case for further enquiry, heard the matter finally on the same day and posted for orders. The procedure followed by the court in fact caused serious prejudice to the petitioner, since he did not get an opportunity to examine the parties to Ext.A6 document and also to adduce further oral evidence. The petitioner claims right, title and interest over the petition schedule property based on Ext.A6 document. Whether Ext.A6 is genuine document or concocted document is a question to be examined by the court below at the time of final hearing and passing orders. So long as the court itself recorded the proceedings stating that Ext.A6 is marked subject to proof by examining the parties to the document, the procedure adopted by the court in hearing the case finally on the same day and adjourning the case for pronouncement of orders is not justified under any circumstances. 5. It is the petitioner's case that he is residing in the -9- EX.FA.NO.38/2010 property in dispute. He has also quoted the number of the house as 6/425. It is also his case that the local authority has assessed the residential building and that he is paying the property tax. It is also his case that he has effected valuable improvements in the property by cultivation. For the purpose of proving his residence in the disputed property he filed a petition to depute an Advocate Commissioner to ascertain the matter stated in the application. That application was dismissed by the court. In fact the reason stated by the court is that the report filed by the Commissioner appointed in the final decree proceedings does not contain anything to show that the house is situated in the disputed property. It is a fact that the petitioner is not a party to the EP. The Commissioner was deputed to ascertain the matters applied for. The Commissioner was not asked to ascertain whether any house is situated in the property, which was put up by the petitioner. It is nobody's case that the petitioner is present, when the Commissioner visited the property. The application for -10- EX.FA.NO.38/2010 appointing a Commissioner was dismissed stating that Commissioner deputed in the final decree proceedings did not meantion the existence of the house in his report and therefore there is no reliable evidence before the court to say that house No.6/425 is situated in the plaint schedule property. The reason stated by the court below for dismissing the application for appointment of a Commissioner is not justified in the facts and circumstances of the case. Therefore, there is every justification on the part of the petitioner to complain that there is denial of opportunity to him to adduce further oral and documentary evidence. 6. It is submitted by the learned counsel for the petitioner/appellant that the appellant had submitted a witness list sufficiently early to adduce oral evidence in support of his contention. It is true that the court considered the rival contentions of the parties based on the evidence on record and reached the conclusion that the applicant has no right, title or possession over -11- EX.FA.NO.38/2010 the decree schedule properties. The impugned order was passed after considering the documents on record; but the court failed to extent adequate and sufficient opportunity to the petitioner to adduce further evidence, if any, in support of his contention. For proper adjudication of the dispute involved between the parties giving no room for any complaints, I am of the view that the matter requires re-consideration. 7. Accordingly, the case is remanded for fresh consideration in accordance with law on the basis of the observations contained in this judgment. The execution court shall re-appreciate the evidence on record, after giving an opportunity to the parties to the petition to adduce further evidence, if so advised. The petitioner shall be permitted to take out a commission for ascertaining the matters sought to be ascertained in E.A.No.89/2009, if such an application is filed before the execution court within three weeks from today. The execution court shall consider the claim of the petitioner as to whether the -12- EX.FA.NO.38/2010 petitioner has got right, title or possession over the property in dispute. Whether he has got tenancy right over the property in question is a matter to be examined for the purpose of deciding the question of title. The court below shall dispose of the petition within a period six months from the date of appearance of the parties. The parties shall appear before the court below on 08/11/2010. Transmit the records immediately. Appeal is disposed of as above. HARUN-UL-RASHID, Judge. kcv.