IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 SA.No. 920 of 2001(A) AGAINST THE JUDGMENT AND DECREE IN A.S.NO.27 OF 1997 ON THE FILE OF THE SUB COURT ATTINGAL, FROM THE JUDGMENT AND DECREE IN O.S.NO.624 OF 1993, ON THE FILE OF THE MUNSIFF'S COURT, NEDUMANGADU. APPELLANT: FIRST RESPONDENT: PLAINTIFF: GANGADHARAN, S/O.GOVINDAN NADAR, AGED 65, LEKSHMI BHAVAN, MITHRUMALA, ANKUDI MURI, KALLARA VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.NAIR AJAY KRISHNAN SRI.NAGARAJ NARAYANAN RESPONDENTS: APPELLANTS & RESPONDENTS 2 TO 4: DEFENDANTS: 1. PANKI, D/O.MUTHU, AGED 65, KALLUVEETANKUZHIYIL PUTHEN VEEDU, MITHRUMALA, ANKUDI MURI, KALLARA VILLAGE, THIRUVANANTHAPURAM DISTRICT. 2. GOPI, S/O.KRISHNAN NADAR, AGED 46, KALLUVEETTANKUZHIYIL PUTHEN VEEDU, MITHRUMALA, ANAKUDI MURI, KALLARA VILLAGE, THIRUVANANTHAPURAM DISTRICT. 3. NALINI, D/O. PANKY, AGED 43, -DO- -DO- 4. ANANDAN, S/O.NALAKRISHNAN NADAR, AGED 41, OF -DO- -DO- (DIED, LRS. IMPLEADED) 5. B.SUNDARESAN, S/O.BALAKRISHNAN NADAR, AGED 37, -DO- -DO- ADDL. 6. BHANUMATHY, AGED 42 YEARS, W/O.LATE ANANDAN, MADATHUVATHUKAL PUTHENVEEDU, MITHRUMALA P.O., THIRUVANANTHAPURAM DISTRICT. “ 7. ARUN, AGED 12 YEARS, S/O.BHANUMATHY, MADATHUVATHUKAL PUTHEN VEEDU, -DO- -DO- REPRESENTED BY HIS MOTHER BHANUMATHY. “ 8. ARUMINA AGED 10 YEARS, D/O.BHANUMATHY, -DO- -DO- REP. BY HER MOTHER BHANUMATHY. “ 9. ANILAN, AGED 8 YEARS, S/O.BHANUMATHY, -DO- -DO- REPRESENTED BY HIS MOTHER BHANUMATHY. ADDITIONAL RESPONDENTS 6 TO 9 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED FOURTH RESPONDENT AS PER ORDER DATED 1.6.2004 IN I.A.NO.70 OF 2003. R2 BY ADVS. M/S.S.M.PREM AND K.P.SANTHI R3 BY ADVS. M/S.S.V.BALAKRISHNA IYER, K.JAYAKUMAR AND P.B.KRISHNAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2008, THE COURT ON 08/02/2008 DELIVERED THE FOLLOWING: C.M.P.NOS.2172/2002, 2171/2001 & I.A.NOS.408/2003, 546/2003 96/2004 AND 2736/2006 IN S.A.NO.920 OF 2001 DISMISSED 08/02/2008 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------- S.A. NO. 920 OF 2001 -------------------------------------------- Dated this the 8th February, 2008 JUDGMENT The appellant herein filed O.S.No.624 of 1993, on the file of the Court of the Additional Munsiff of Nedumangad, against the respondents for fixation of boundary of the plaint schedule property and for injunction. The trial court decreed the suit. On appeal by defendants 1 and 3, the Appellate Court allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit. 2. The case of the plaintiff is that an extent of 1.50 acres of land belonged to Sadanandan, brother of the plaintiff. Sananandan sold 90 cents of land out of the total extent of 1.50 acres to the defendants as per registered document No.3353 of 1964, Sub Registrar's Office, Vamanapuram. The balance extent of 60 cents on the western side was retained by Sadanandan. Later, as per Ext.A2 sale deed dated 1.4.1966, Sadanandan assigned the said extent of 60 cents to his father Govindan Nadar. In 1966, as per Ext.A3 settlement deed dated 1.4.1966, Govindan Nadar settled the property in favour of his daughter Devayani. In 1975, Devayani sold the said extent of 60 cents to the plaintiff, as per Ext.A4 sale deed dated 6.8.1975. The plaintiff is in possession and enjoyment of S.A. NO.920 OF 2001 :: 2 :: the extent of 60 cents, which is shown as the plaint schedule property. The property on the eastern side of the plaint schedule property belongs to the defendants as per sale deed No.3353 of 1964. Out of the said extent of 90 cents, the defendants sold an extent of ten cents, on the extreme eastern side, to Gowri as per Ext.B2 assignment deed dated 29.11.1965. The defendants destroyed the fencing separating the plaint schedule property and their property. The defendants filed O.S.No.449 of 1988 before the Munsiff's Court, claiming that they got an extent of 1 acre 50 cents as per document No.3353 of 1964 and after sale of ten cents to Gowri, they retained an extent of 1 acre 40 cents. The said suit was filed after manipulating and making some forgery in the original sale deed No.3353 of 1964, to make it appear that the extent of property covered by that document is 1 acre 50 cents, while in fact, the extent was only 90 cents. When O.S.No.449 of 1988 came up for hearing, the defendants in the present suit, who were the plaintiffs therein, did not appear and the suit was dismissed for default. The survey stones separating the plaint schedule property and the defendants' property were fixed on the boundary of the properties, when the plaintiff filed an application before the District Collector in that behalf. It was alleged that thereafter the defendants attempted to trespass upon the plaint schedule property and to commit waste. S.A. NO.920 OF 2001 :: 3 :: 3. Defendants 1 and 3 contended in the written statement that the plaintiff has no title or possession over the plaint schedule property. Sadanandan had assigned the entire extent of 1 acre 50 cents in favour of the defendants as per document No.3353 of 1964. Before the assignment, the property was outstanding on lease in favour of the first defendant and she had constructed a residential building in the property. Defendants are in possession and enjoyment of the entire extent of 1 acre 50 cents and they are residing in the house situated in the property. An extent of 10 cents of land was sold by the defendants to Gowri. The defendants dug a well in the property. The plaintiff purchased an extent of 50 cents on the western side of the 1 acre 50 cents. There is a boundary separating that property and the extent of 1 acre 50 cents. The dead body of the first defendant's husband, who died in 1964, was cremated in the south-western side of the property. The sale deed relied on by the plaintiff is a fraudulent document. Sadanandan did not retain any extent of land after the sale of 1 acre 50 cents in favour of the defendants and, therefore, he had no title to be conveyed as per Ext.A2. Therefore, Exts.A3 and A4 settlement deeds do not confer any title on the respective donee and assignee. The defendants did not destroyed the fence. Though the defendants filed O.S.No.449 of 1988, they could not attend the Court when the suit came up for trial. The contention of the plaintiff that the boundary was demarcated and survey stones were laid S.A. NO.920 OF 2001 :: 4 :: was denied by the defendants. The allegation of attempted trespass was also denied. The defendants contended that they are in possession of 1 acre and 50 cents and that the plaintiff has no possession or title over the plaint schedule property. The defendants also contended that the original of document No.3353 of 1964 was kept in the custody of the plaintiff and it was given back to the defendants at the time of execution of Ext.B2 document in favour of Gowri. At the time when the plaintiff handed over the document to the defendants, the document was in the same condition as it is presently available. It was also contended by the defendants that the right, if any, of the plaintiff was lost by adverse possession. 4. The following substantial questions of law were raised in the Second Appeal: “a) Whether a certified copy of a public document weigh more than a disputed original document? b) On whom does the burden of proof lie on the production of a certified copy of a public document by the defendant? c) Whether the burden of proving the certified copy of an extract of a public document by adducing additional data lies on the person producing it? d) Whether a court can adorn the mantle of an expert in finding out whether forgery or material alteration has been made and if so, whether such findings are conclusive? e) Whether the court below went wrong in placing S.A. NO.920 OF 2001 :: 5 :: burden on the plaintiff in proving the genuineness of the certified copies? f) Whether the title of the plaintiff to the plaint schedule property has been proved by preponderance of probabilities? g) Whether the appellate court erred in overlooking the title of the plaintiff and in not deciding on the question as to the title of the plaintiff? h) Whether an appellate decree passed with a dead man in the party array is to be set aside and declared as null and void?” 5. Before the trial court, PWs.1 to 3 were examined on behalf of the plaintiff and Exts.A1 to A9 were marked. On the side of the defendants, DWs.1 and 2 were examined and Exts.B1 to B3 were marked. The Commissioner's report and plans were marked as Exts.C1, C1(a) and C1(b). 6. To prove that in Ext.B1, the original of document No.3353 of 1964, manipulations and interpolations were made by the defendants, the plaintiff produced the registration copy of that document and it was marked as Ext.A1. The trial court held that a comparison of Ext.A1 registration copy and Ext.B1 original would reveal that manipulations and interpolations were made in Ext.B1 in the schedule of property. Ext.A1 shows that the extent of the property assigned is 90 cents and that an extent of 60 cents on the western side was retained by the assignor S.A. NO.920 OF 2001 :: 6 :: Sadanandan. The measurements of the said extent of 60 cents are also shown in Ext.A1. The trial court found that in Ext.B1 document, the extent of the property is manipulated in such a way to make it appear that the extent sold was one acre and fifty cents. The trial court relied on Ext.A6 'thandaper account' in the name of the defendants, which would show that an extent of 90 cents was entered in the account in the name of defendants and after sale of an extent of ten cents of land to Gowri, the extent was reduced to 80 cents. Sadanandan, the assignor, was examined as PW3. He stated in evidence that only an extent of 90 cents was sold to the defendants as per document No.3353 of 1964. The evidence of PW3 was relied on by the trial court. The trial court came to the conclusion that the defendants have derived title only in respect of an extent of 90 cents as per document No.3353 of 1964 and that their claim of purchase of 1 acre 50 cents as per that document is false. The trial court found that Ext.B3 tax receipt produced by the defendants to show that they paid revenue for an extent of 1 acre and 50 cents is also a manipulated document. When Ext.A6 'thandaper account' shows that the defendants have title to only an extent of 80 cents, they could not have paid the basic tax for an extent of one acre 50 cents as per Ext.B3. The Commissioner identified the plaint schedule property as plot 'ABCDEF' and it was marked in red shade. The trial court also disbelieved the evidence of DWs.1 and 2. Having found that the plaintiff has title and S.A. NO.920 OF 2001 :: 7 :: possession in respect of the plaint schedule property, as marked by the Commissioner in the plan as 'ABCDEF', the trial court decreed the suit allowing the plaintiff to put up a fencing with barbed wires through the eastern boundary of 'BCDE' shown in Ext.C1(a) plan. The trial court also granted a permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property or from committing any waste therein or in any way interfering with the plaintiff's possession and enjoyment of the plaint schedule property. 7. The Appellate Court held that in Ext.B1, subsequent corrections were not made in the schedule and that there is no visible sign of correction in Ext.B1. It was also held that as the title of the plaintiff in respect of the plaint schedule property was challenged by the defendants, it was incumbent on the plaintiff to make a prayer for declaration of his title. It was also held that the burden of proof was on the plaintiff to prove that the original title deed (Ext.B1) was fraudulently corrected by the defendants changing the extent and the measurements. The Appellate Court found that the plaint schedule properties are in the possession of the defendants. The Appellate Court found fault with the plaintiff for not summoning the filing sheets kept in the Sub Registrar's Office in respect of Ext.B1 document. It was also observed by the Appellate Court thus: S.A. NO.920 OF 2001 :: 8 :: “If by an act of fraud the assignor has manipulated the entries in filing the sheet that will not be binding on the assignee.” It is to be noted that there is no such case for the defendants that the filing sheets kept in the Sub Registrar's Office were manipulated and Ext.A1 registration copy was obtained by the plaintiff after such manipulation. 8. On a perusal of Ext.B1, it is manifestly clear that there are corrections, over-writings and tampering with the entries in the schedule where description of the property is available. It was contended that if the measurements as shown in Ext.B1 are taken as correct, the total extent of the property would be more than one acre and fifty cents. The Appellate Court accepted this contention and held thus: “It is true that the measurements shown in Ext.B1 do not tally with the total extent of the property. As per the measurements shown in Ext.B1 there must be 7200 sq. links of property and that will come to the 7 acres 20 cents.” On a careful inspection of all the pages in Ext.B1, I am of the view that there are corrections in the document. At page 4, entries are made in different inks and there is over-writing. Over-writing is not permitted in the original title deed. If such correction or over-writing was made at the time of preparation of the document, it would have been indicated in the S.A. NO.920 OF 2001 :: 9 :: document itself. Wherever over-writing or corrections appear to have been made, on the reverse of that page something is found spilled. One can understand the accidental spilling of something on a document. If such spilling took place on the reverse side of the last page of the document, on the other pages there could be no different types of marks of such spilling. I am of the view that something deliberately has been done on the last few pages in the document to facilitate some manipulations, interpolations or tampering with the entries. 9. Learned counsel for the appellant contended that when there is difference between the entries in the schedule in the registration copy of the document and those in the original document and if it is shown that corrections were made in the original document, the entries in the registration copy should be accepted. He also contended that the burden of proof in such a case would be on the person who is in custody of the original document to prove that the entries in the schedule to the said document are correct by summoning the filing sheets kept in the Sub Registrar's Office. Sri.Nagaraj Narayanan, learned counsel appearing for the appellant cited several decisions in support of his submission. Sri.P.B.Krishnan, learned counsel appearing for the respondents contended that the original document constitutes the primary evidence and if a party wants to prove that the entries in the schedule therein are S.A. NO.920 OF 2001 :: 10 :: not correct, the burden is on him to summon the Sub Registrar to produce the filing sheets kept in the Sub Registrar's Office. He also cited several decisions in support of his contention. 10. After the arguments were over, I thought that it was not safe to decide the case on the basis of presumption or burden of proof. Any such finding would not be a substitute for a just decision on the basis of true facts. Therefore, I passed an order dated 17.1.2008, relevant portion of which reads as follows: “3. The entries and recitals in the schedule in Ext.A1 registration copy and those in Ext.B1 original do not tally on many aspects. At pages 4 and 5 of Ext.B1 there are over writings which cannot be disputed by any person, on a perusal of the document. According to the plaintiff, manipulation has been made at the places where the nature of the stamp paper and plain paper are seen changed. 4. The Trial Court decreed the suit for fixation of boundary and for injunction holding that the plaintiff has title to the plaint schedule property having an extent of 60 cents. It was held by the Trial Court that the entries in Ext.B1 were tampered with and that the said document cannot be relied on to hold that the defendants have title to an extent of 1.50 acres. The Trial Court relied on Ext.A1 registration copy to find that the entries in Ext.B1 were tampered with. The appellate court held that apparently there is no tampering with the entries in Ext.B1 and that Ext.A1 cannot be relied on to hold that Ext.B1 is tampered with. The appellate court also held that the burden of proof in this regard is on the plaintiff. On a reading of the judgments of the courts below, it would appear that the parties made submissions on the basis of presumption and burden of proof and the courts below also dealt with question in that manner. It may be possible to decide the case on the basis of presumption, S.A. NO.920 OF 2001 :: 11 :: burden of proof, etc. But, the fact remains that, the ultimate truth as to what extent of property was transferred as per document No.3353 of 1964, Sub Registrar's Office, Vamanapuram should be the deciding factor in pronouncing upon the title of the plaintiff in respect of the plaint schedule property and in deciding whether Ext.B1 has been tampered with and also in deciding the question whether the defendants have title to an extent of one acre and 50 cents. For that purpose, to my mind, the best evidence would be the filing sheets kept in the sub Registrar's Office, Vamanapuram in respect of document No.3353 of 1964, in book No.1, Volume No.381 at pages 349 to 353. I am of the view that the Second Appeal can be effectively and completely decided after production of the filing sheets in respect of the aforesaid document. 5. Therefore summons shall be issued to the Sub Registrar, Vamanapuram to produce before court at 1.45 PM on 24.01.2008 the original filing sheets in respect of document No.3353 of 1964 at pages 349 to 353, Volume 381 in Book No.1. The Sub Registrar shall produce the entire volume containing the filing sheets and the original entries regarding the document referred to above. The Sub Registrar is free to depute a responsible officer for production of the document before court.” 11. Volume No.381 in Book No.1 containing the filing sheets in respect of Document No.3353 of 1964 was produced as directed in the above order. The filing sheets were perused by me and by the counsel appearing on either side. On a perusal of the filing sheets, it is crystal clear that the schedule shown in Ext.B1 original document does not tally with the schedule in the filing sheets. It is also clear that the entries in the schedule in Ext.A1 registration copy tally with the entries in the schedule in the filing sheets. Therefore, it is clear that the recitals and entries in the schedule to Ext.B1 were tampered with and manipulations, corrections S.A. NO.920 OF 2001 :: 12 :: and interpolations were made. Naturally and normally, this should result in setting aside the judgment and decree of the court below and in confirming the decision of the trial court. But in this Second Appeal, I am not rendering any final conclusion, in view of the following circumstances: (a) The Appellate Court had observed that if, by act of fraud, the assignor had manipulated the entries in the filing sheets that would not be binding on the assignee. Though there is no such case for the defendants, the fact remains that the filing sheets were not marked in evidence by examining the Sub Registrar. It is necessary to mark the filing sheets in evidence and for that purpose it is necessary to examine the Sub Registrar. (b) The defendants have a case that the original document (Ext.B1) was in the custody of the plaintiff for quite some time and the defendants got it back from the plaintiff at the time when the defendants proposed to sell ten cents of land to Gowri. The defendants have also a contention that when the plaintiff handed over the document to them, it was in the same condition as it is now available. (c) If the court finds that manipulation in the original document was done by a particular party, appropriate action should be taken against him and whether such action should be taken depends on a finding of fact on that aspect. 12. For the aforesaid reasons, I am of the view that the matter requires to be remanded to the Appellate Court for fresh disposal. The S.A. NO.920 OF 2001 :: 13 :: Appellate Court shall summon the Sub Registrar, Vamanapuram and examine him as a court witness. The filing sheets shall be marked in evidence. After substituting a photostat copy of the relevant filing sheets, the original volume containing the filing sheets can be returned to the Sub Registrar, if the court below is satisfied that the volume is required for the frequent use in the Sub Registrar's Office. Both the parties would be entitled to adduce such other relevant evidence and to produce relevant documents before the Appellate Court. The Appellate Court shall dispose of the appeal afresh. The decree for permanent injunction granted by the trial court shall be in force during the pendency of the appeal. 13. The Registry shall forward volume 381, Book No.1 (produced by the Sub Registrar, Vamanapuram) to the lower Appellate Court along with the records of the case. Before forwarding the volume containing the filing sheets, the Registry shall cause to take photocopy of pages 349 to 353 of volume 381, Book No.1 containing the original filing sheets pertaining to document No.3353 of 1964 and the same shall be kept in safe custody until further orders. The Second Appeal is allowed. The judgment and decree of the court below are set aside and the case is remanded to the Lower Appellate Court for fresh disposal in accordance with law and in the S.A. NO.920 OF 2001 :: 14 :: manner indicated above. The appellant shall be entitled to his costs through out. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- S.A.NO. 920 OF 2001 JUDGMENT 8th February, 2008 -------------------------------------------