IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 RSA.No. 741 of 2010() --------------------- AS.28/2003 of ADDL.DIST. COURT, OTTAPPALAM OS.604/2000 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANTS/APPELLANTS/PLAINTIFFS ---------------------------------------------------- 1. VISALAKSHI, AGED 67 YEARS, W/O.LATE PATHIYADIYIL NARAYANAN EZHUTHASSAN, PANNIYAMKURUSSI DESOM, CHERPULASSERI AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. AMBILIDEVI, AG4ED 36 YEARS, D/O.LATE PATHIYADIYIL NARAYANAN EZHUTHASSAN, PANNIYAMKURUSSI DESOM, CHERPULASSERI AMSOM, PALAKKAD DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENT(S): RESPONDENT 1,2 AND 3/APPELLANT/DEFENDENT 1,2/3RD PLAINTIFF ----------------------------------------------------------------- 1. CHERPULASSERI GRAMA PANCHAYAT BY ITS SECRETARY PO.CHERPULASSERY-679 503, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. SATHISH BABU, AGED 42 YEARS, S/O.PATHIYADIYIL NARAYANAN EZHUTHASSAN, 253,S.U.A.F, C/O.WING,C/O.99 APO. 3. DURGA PRASAD, AGED 39 YEARS, S/O. PATHIYADIYIL NARAYANAN EZHUTHASSAN, PUNNIYAMKURUSSI DESOM, CHERPULASSERI AMSOM, OTTAPALAM TALUK,PALAKKAD DISTRICT. ADV. SRI.MILLU DANDAPANI FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.741 OF 2010 --------------------------------------------- Dated February, 2011 JUDGMENT Plaintiffs in O.S.604/2000 on the file of Munsiff's Court, Ottapalam are the appellants. Respondents are the defendants. Suit was filed for recovery of possession of plaint B schedule property contending that it forms part of plaint A schedule property, originally belonged to Narayanan Ezhuthassan who died on 12/5/1998 and on his death his properties devolved on the appellants and the second respondent who is also one of the sons of the first appellant. The suit was instituted on his behalf also. It is contended that in the month of September 1999 with the help of a contractor, first respondent Panchayat RSA 741/10 2 trespassed into plaint A schedule property and reduced plaint B schedule property into their unlawful possession and made it a part of public road and first respondent has no manner of right or title to plaint B schedule property and late Narayanan Ezhuthassan had not surrendered the property to the Panchayat and even if, he had executed any document, it has no validity as property could be transferred only by registered deed and in such circumstances, appellants are entitled to the recovery of possession. First respondent resisted the suit contending that plaint B schedule property was surrendered by Narayanan Ezhuthassan to the Panchayat on 1/1/1997 and thereafter in April 1997, it was converted into road and after formation of road a culvert was also constructed on the eastern RSA 741/10 3 side and after the death of Narayanan Ezhuthassan his widow and children are challenging formation of the road and they are estopped from seeking recovery of possession of plaint B schedule property which was surrendered by Narayanan Ezhuthassan and in such circumstances, suit is to be dismissed. 2. Learned Munsiff on the evidence of PW1, DW1 Exts.A1 to A7, Exts.B1 to B6 and C1 to C3 dismissed the suit finding that under Ext.B1, Narayanan Ezhuthassan had relinquished his right over plaint B schedule property and surrendered it to the first respondent Panchayat and first respondent Panchayat constructed a road therein and in such circumstances, appellants, being the legal heirs of deceased Narayanan Ezhuthassan are not entitled to the recovery of possession of RSA 741/10 4 plaint A schedule property. Appellant challenged judgment before Additional District Court, Ottapalam in A.S.28/2003. Before First Appellate Court appellants filed I.A.1158/2008 and 130/2010 under Rule 27 Order XLI of Code of Civil Procedure for receiving the records showing the treatment given to the deceased Narayanan Ezhuthassan to raise a contention that Ext.B1 could not have been executed by him as claimed by the first respondent. Learned Additional District Judge did not accept the additional evidence and on re-appreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Though case was sent for mediation, it was not settled. 4. Learned counsel appearing for the RSA 741/10 5 appellants was heard. 5. Argument of the learned counsel is that though Ext.B1 was accepted by the courts below, there is no evidence to prove that it was executed and Narayanan Ezhuthassan relinquished plaint B schedule property and any relinquishment could only be as provided under Kerala Land Relinquishment Act, 1958 and the procedure provided under Section 4 is to be followed and when those conditions are not established, courts below should not have accepted the relinquishment. Learned counsel also argued that when appellants have filed application before the First Appellate Court to receive additional evidence, and conditions provided under Rule 27 of Order XLI of Code of Civil Procedure are satisfied, First Appellate Court is bound to receive them as additional RSA 741/10 6 evidence, as appellants have stated that they could not produce the documents before the trial court as they were not aware of those documents at that time and in any case, when the question whether Narayanan Ezhuthassan could have executed Ext.B1 due to illness on 1/1/1997, when allegedly Ext.B1 was executed, First Appellate Court should have received the documents, as additional evidence. Learned counsel argued that in such circumstances, Courts below erred in refusing to grant decree for recovery of possession as title of the appellants is established. 6. Title claimed by the appellants to the plaint B schedule property is as legal heirs of Narayanan Ezhuthassan. The fact that plaint B schedule property now forms part of a public road is not disputed. Case of the RSA 741/10 7 appellants is that plaint B schedule property was converted as part of public road by trespassing into a portion of plaint A schedule property. First respondent contended that it was not by trespass. The case is that Narayanan Ezhuthassan voluntarily surrendered plaint B schedule property to the Panchayat for formation of the road. Learned counsel argued that in such circumstances, it is for the first respondent to prove there was a valid surrender. It is argued that as Ext.B1 was issued in the form prescribed under Kerala Land Relinquishment Rules 1958, relinquishment could only be as provided under Kerala Land Relinquishment Act and as provided under Section 4 an application is to be filed by the person expressing his willingness to surrender and on receipt of such application RSA 741/10 8 Revenue Divisional Officer has to satisfy that it could be accepted and thereafter Revenue Divisional Officer has to affix a copy of the notice in the notice board and cause it to be published in such manner as prescribed, in the village notice board and any person interested is entitled to raise objection and if objection is received it is to be heard and only thereafter relinquishment shall either be accepted or rejected, and the order is also made appealable. The argument is that when DW1, the only witness examined deposed that he has no personal knowledge on these aspects and there is no evidence of compliance with the procedure provided under Section 4, courts below should not have been accepted the surrender. It was also argued that evidence of DW1 will not establish execution of Ext.B1 and RSA 741/10 9 evidence of PW1 regarding identity of signature of the deceased Narayanan Ezhuthassan in Ext.B1 cannot be treated as execution of the document, as admission of signature is not admission of execution of a document. 7. On going through the judgment of courts below, I do not find that there is a factual finding by both the courts that Narayanan Ezhuthassan had executed Ext.B1. I have gone through the evidence of PW1 and DW1, made available by the learned counsel. PW1 is the widow of Narayanan Ezhuthassan. When Ext.B1 was shown to her and asked whether signature seen therein is not that of Narayanan Ezhuthassan, she admitted the signature. When she was cross examined further, she revealed that she is disputing Ext.B1, as Narayanan Ezhuthassan did not disclose it to her. For RSA 741/10 10 the reason that her husband did not disclose the surrender or she conveniently contends that it was not disclosed, it cannot be said that Narayanan Ezhuthassan has not executed Ext.B1 or has not relinquished the property. Learned counsel would argue that if First Appellate Court had permitted appellants to receive the documents evidencing treatment given to Narayanan Ezhuthassan as additional evidence, it would have been found that he could not have gone to Village Office and executed Ext.B1. First of all, even when PW1 was examined, she has no case that he was laid up on 1/1/1997 and therefore, he could not have gone to the Village Office. True, she had stated that from 1996 onwards he was suffering from illness. But there is no specific case that on 1/1/1997, the date on which it was executed RSA 741/10 11 Narayanan Ezhuthassan was laid up. The documents produced also will not show that he was hospitalized and was unable to execute the document. On going through the entire evidence, I find that the factual findings arrived at by the courts below is in accordance with the evidence. It cannot be interfered in the second appeal. I find no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.