IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 RSA.No. 150 of 2009() --------------------- AS.62/1999 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.251/1997 of MUNSIFF COURT, RANNI .................... APPELLANT/ 1ST RESPONDENT/PLAINTIFF ------------------------------------------------------- NEELAKANDAN BHASKARAN,S/O.NEELAKANDAN, PAROOR, EDAKATTU HOUSE, EDAKKULAM MURI, VADASSERIKKARA VILLAGE, RANNI TALUK. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): APPELLANTS AND RESPONDENTS 3 TO 6/DEFENDANTS 1 & 2 ----------------------------------------------------------------- 1. SANKARAN ANANDAN, S/O.SANKARAN,AGED 50, EX-SERVICEMAN, PAROOR VEEDU, EDAKKULAM MURI, VADASSERIKKARA VILLAGE, RANNI TALUK. 2. PADMINI ANANDAN, W/O.ANANDAN,AGED 47, PAROOR HOUSE, EDAKKULAM MURI, VADASSERIKARA VILLAGE, RANNI TALUK. 3. DEVAKI, W/O.LATE PODIYAN,PAROOR VEEDU, EDAKKULAM MURI,VADASSERIKKARA VILLAGE, RANNI TALUK. 4. P.P.SHAJI, S/O.LATE.PODIYAN, PAROOR VEEDU, EDAKKULAM MURI, VADASSERIKKARA VILLAGE, RANNI TALUK. 5. P.P.SASIKUMAR, S/O.LATE.PODIYAN, PAROOR VEEDU, EDAKKULAM MURI,VADASSERIKKARA VILLAGE,RANNI TALUK. 6. P.P.MINIMOL, D/O.LATE PODIYAN,PAROOR VEEDU, EDAKKULAM MURI, VADASSERIKKARA VILLAGE, RANNI TALUK. ADV. SRI.K.GOPALAKRISHNA KURUP FOR R 1 & 2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.150 of 2009 -------------------------------------- Dated this the 7th day of October, 2009. JUDGMENT Heard counsel for appellant and respondent Nos.1 and 2. 2. Appellant sued respondent Nos.1 and 2 and another in O.S.No.251 of 1997 of court of learned Munsiff, Ranni for decree for fixation of boundary and for prohibitory injunction concerning plaint schedule item Nos.I and II. He was granted a decree by the learned Munsiff but, that was reversed by learned Additional District Judge, Pathanamthitta on appeal at the instance of respondent Nos.1 and 2. That judgment and decree are under challenge in this Second Appeal urging following as substantial questions of law: i. Whether first appellate court was right in discarding the evidence of appellant as to possession based on Ext.A3, delivery kaichit especially when the predecessor-in-interest of respondent Nos.1 and 2 were parties to the said document? ii. Whether first appellate court erred in finding that delivery as per Ext.A3 is not really ignoring presumption under Section 114(g) of the Evidence Act (for short, “the Act”)? iii. Whether first appellate court was right in setting aside the decree of the trial court on the finding that appellant is in possession of item No.I of the plaint schedule? RSA No.150 of 2009 2 3. Item No.I of plaint schedule is situated on the south of item No.II. There is no dispute between parties as to right, title and possession of appellant as regards item No.II. Dispute is regarding item No.I. Appellant wanted the southern boundary of item No.I to be fixed and prayed for injunction restraining respondent Nos.1 and 2 from trespassing into item Nos.I and II. According to the appellant, he obtained item Nos.1 and 2 as per Ext.A1, sale deed and got decree in O.S.No.44 of 1968 declaring his right over the suit property and allowing recovery of possession of the said properties from defendant No.3. Defendant No.3 surrendered possession of the property and thereon appellant constructed boundary along ON line in Ext.C3, plan attached to the decree in O.S.No.44 of 1968. Respondent Nos.1 and 2 demolished the boundary along ON line which necessitated the suit. Respondent Nos.1 and 2 contended that neither them nor their predecessor-in-interest are parties in O.S.No.44 of 1968 and the decree does not bind them. The property (30 ¾ cents) originally belonged to late Thankamma as per document No.817 of 1957 and on her death it devolved on her only daughter, Ammini who assigned the said 30 ¾ cents in favour of respondent No.2 as per Ext.B5, assignment deed No.5558 of 1986 dated 17.12.1986. That is the property described as item No.I in plaint schedule over which appellant has not right, title or possession. It is also contended that Ammini had filed suit against appellant and others as O.S.No.254 of 1970 and got Ext.A1, sale deed (relied on by the appellant) cancelled to the extent of the share she inherited from her mother, Thankamma. Further contention of respondent Nos.1 and 2 is that there was no delivery in RSA No.150 of 2009 3 O.S.No.44 of 1968 as claimed by the appellant and it does not bind them. Trial court relying on Ext.A3, delivery kaichit entered a finding that appellant is in possession of item No.I as well and hence he is entitled to the reliefs prayed for. First appellate court on the other hand found that Ext.A3 is only a paper delivery, cannot in any way affect right, interest and possession of respondent Nos.1 and 2 and their predecessor-in-interest over item No.I and accordingly modified judgment and decree of the trial court to the extent that no relief was granted in respect of item No.I. That judgment and decree are under challenge at the instance of appellant. Learned counsel for appellant inviting my attention to the substantial questions of law raised in the appeal memorandum contends that finding of the first appellate court that Ext.A3 is a paper delivery cannot stand in the light of evidence on record and in view of Section 114(g) of the Act. Learned counsel has placed reliance on the decisions of this Court in Madhava Kurup Velayudha Kurup v. State [1953 KLT 31] and Sadasivan Pillai v. State [1959 KLT 501] as regards the effect of a court delivery. Learned counsel for respondent Nos.1 and 2 would contend that finding of fact entered by first appellate court as regards item No.I involved no substantial question of law requiring admission of this Second Appeal. 4. It is not disputed that including item No.I the total extent of 1.11 acres originally belonged to Kochupennu Kuttiyamma who sold 15 cents out of 1.11 acres. After her death the remaining 96 cents was partitioned among her children, Raghavan, Sadanandan, Thankamma and Kalyani as per Ext.B2, partition deed. Thankamma was allotted 30 ¾ cents which according to RSA No.150 of 2009 4 respondent Nos.1 and 2 takes in item No.I of plaint schedule also. According to them, on the death of Thankamma the said 30 ¾ cents devolved on her only legal heir, Ammini. While so Ext.A1, sale deed was executed in favour of appellant concerning item No.I as well which takes in the said 30 ¾ cents at a time when Ammini was a minor. That document was executed by one Damodaran and the aunt of Ammini claiming to be the guardian of Ammini. It is also not disputed that on Ammini attaining majority she filed O.S.No.254 of 1970 against appellant and others seeking cancellation of Ext.A1 to the extent it concerned the said 30 ¾ cents she inherited from her mother, late Thankamma. That suit was decreed as prayed for and, Ext.A1, assignment deed to the extent it concerned 30 ¾ cents was cancelled. There was also consequential decree for prohibitory injunction against appellant trespassing into the said 30 ¾ cents. Ext.B6 is the CC of judgment dated 8.12.1970 in that case. In the meantime appellant had filed O.S.No.44 of 1968 on the strength of Ext.A1 in respect of the property including item No.I also but without impleading Ammini. In that suit there was a decree in favour of appellant. According to the appellant, defendant No.3 who was a party in the suit consequent to the decree surrendered possession of the property in his favour. Appellant also relies on Ext.A3, copy of delivery kaichit in O.S.No.44 of 1968 to support his contention that on 3.4.1973 item No.1 was delivered over to the appellant. It is therefore that learned counsel for appellant contended that delivery kaichit (Ext.A3) has to be given effect to and that presumption under Section 114(g) of the Act is available to him. RSA No.150 of 2009 5 5. Presumption under Section 114(g) of the Act is only as to regularity of the official act and not regarding truth of the contents which if disputed, has to be proved. The decisions relied on by learned counsel for appellant do not concern paper or symbolic delivery. There is no case or evidence that in execution of the decree in O.S.No.44 of 1968, predecessor in interest of respondent Nos.1 and 2 was dispossessed. In O.S.No.44 of 1968 respondent Nos.1 and 2 are not parties. Nor are their predecessor-in-interest parties. Hence the decree in that case cannot bind respondent Nos.1 and 2 or their predecessor-in-interest, Ammini who by issuing Ext.B5 dated 17.12.1986 conveyed title, right, interest and possession of the 30 ¾ cents including item No.I to respondent Nos.1 and 2. So far as Ext.A3 is concerned, when the trial court merely acted upon that delivery kaichit, first appellate court went into the respective contention and whether there was actual delivery of property as per Ext.A3. First appellate court found that there was no real delivery as per Ext.A3 as is revealed from the fact that appellant filed E.P.No.7 of 1997 for delivery of the house in item No.I. Ext.B8 is the copy of that E.P. I must bear in mind that with appellant in the array of parties (in O.S.No.254 of 1970) court has granted a decree for prohibitory injunction in favour of Ammini, predecessor in interest of respondent Nos.1 and 2 against appellant and others entering item No.I. It is true that courts below found that plea of resjudicata raised by respondent Nos.1 and 2 in view of judgment and decree in O.S.No.254 of 1970 is not available to respondent Nos.1 and 2. It is after adverting to these aspects that the first appellate court found that appellant has no possession or title of item No.I and RSA No.150 of 2009 6 accordingly modified judgment and decree of the trial court confining relief to item No.II of plaint schedule over which respondent Nos.1 and 2 do not lay hands. Finding of first appellate court rest on a proper appreciation of evidence on disputed points. This Court in Second Appeal could interfere with the finding of fact entered by the first appellate court only when the finding is based on no evidence or when the finding is perverse. None of these contingencies arise in this appeal. As such substantial questions of law as above stated do not actually arise for consideration. Resultantly, this Second Appeal is dismissed in limine. THOMAS P.JOSEPH, Judge. cks