IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 SA.No. 393 of 1996(E) ---------------------------------------- AS.28/1993 of SUB COURT, KASARAGOD OS.105/1984 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT(S)/APPELLANT/11TH DEFENDANT: ------------------------------------------------------------------ M. SUSHEELA, D/O. RAMA RAO, VIDYA NAGAR, KASARGODE, KASBA VILLAGE, KASARGODE. BY ADV. SRI.V.SIVASWAMY SMT.JIJIMOL J.VADAKKEN SRI.V.V.ASOKAN RESPONDENT(S)/RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 10: --------------------------------------------------------------------------------------------------- 1. KORAGA POOJARY, SON OF AITHA POOJARI, ANANGOOR, KASARGODE, KASBA VILLAGE, KASARGODE. 2. DEYINHI (DIED. LRS. IMPLEADED), W/O. AITHA POOJARI, ANANGOOR, KASARGODE, KASBA VILLAGE, KASARGODE. 3. CHANNAYYA POOJARY, S/O. AITHA POOJARI, ANANGOOR, KASARGODE, KASBA VILLAGE, KASARGODE. 4. DOOMALU, D/O. AITHA POOJARI, ANANGOOR, KASARGODE, KASBA VILLAGE, KASARGODE. 5. PACHU HENGSU, D/O. AITHA POOJARI, ANANGOOR, KASARGODE, KASBA VILLAGE, KASARGODE. 6. MOHAN ALIAS MONU POOJARY, ANANGOOR, KASARGODE, KASBA VILLAGE, KASARGODE. 7. APPU HENGSU, ANANGOOR, KASARGODE, KASBA VILLAGE, KASARGODE. 8. KANTHI HENGSU, ANANGOOR, KASARGODE, KASBA VILLAGE, KASARGODE. SA.NO.393 OF 1996 9. RAMA POOJARY, ANANGOOR, KASARGODE, KASBA VILLAGE, KASARGODE. 10. KAMLA, ANANGOOR, KASARGODE, KASBA VILLAGE, KASARGODE. 11. LAKSHMI (DIED LRS. IMPLEADED), ANANGOOR, KASARGODE, KASBA VILLAGE, KASARGODE. (IT IS RECORDED THAT THE SECOND RESPONDENT DIED AND RESPONDENTS 1 AND 3 TO 5 ARE LEGAL HEIRS OF DECEASED SECOND RESPONDENT AS PER ORDER DATED 27.6.06 IN THE STATEMENT BEARING CF.NO.3429/06.) ADDL. R12. VELAYUDHAN, OPPOSITE TO SWAMY TYRE HOUSE, NELKALA, VIDYA NAGAR, KASARAGODE-3. ADDL.R13, JIJO, DO. DO. ADDL.R14. RAHUL, DO. DO. (R11 DIED. ADDITIONAL RESPONDENTS 12 TO 14 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED 11TH RESPONDENT AS PER ORDER DATED 7.1.08 ON I.A.NO.1241/06.) ADV. SRI.D.KRISHNA PRASAD FOR R1, R3, R4, R7 & R11 SRI.M.HARISHARMA SRI.SHANKAR V. FOR R8 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27.8.20909, THE COURT ON 13/11/2009 DELIVERED THE FOLLOWING: K.M.JOSEPH, J. ------------------------------------------------------ S.A.No.393 of 1996-E ---------------------------------------------- Dated this the 13th November, 2009 J U D G M E N T Appellant is the 11th defendant in the suit. The Ist respondent plaintiff filed the suit for partition of the plaint schedule property alleging that the property belonged to his father and after his death it devolved upon the plaintiff and defendants 1 to 10 in equal shares as his legal heirs. He claimed one out of 11 shares. The 8th defendant is the husband of the appellant. He contended that the property belonged to the Ist defendant, his mother and he had obtained exclusive title to the item by virtue of assignment executed by his mother in his favour by Ext.B2. Purchase certificate had been obtained in the name of the Ist defendant, it is contended. After the institution of the suit it is the case of the appellant to settle the controversy, there was an assignment of the right and interest of defendants 2 to 7 and the 9th defendant by Ext.B3 dated 7.4.1984 in her favour. It is on the basis of the assignment that the appellant was impleaded as the 11th defendant in the suit. She took up the contention that the property belonged to the father of the plaintiff, and that she is entitled to 7/11 shares belonging to her assignors viz., defendants 2 to 7 and 9th defendant. It is stated that there was no written statement filed by the S.A.NO.393/96 2 assignors challenging Ext.B3. Defendants 3 and 6 have filed a joint written statement adopting the written statement of the 10th defendant. The 10th defendant had in turn supported the claim of the plaintiff. But, as already noted there was no written statement by defendants 3 and 6 impugning Ext.B3. It is pointed out that there was no written statement by the second defendant. These defendants filed O.S.No.83/89 before the Sub Court, Kasargode and sought declaration that Ext.B3 was not been executed. The appellant had filed written statement claiming title under Ext.B3 and showing it to be a genuine and real document. The plaintiff, however, amended the suit and he incorporated a challenge to the validity of Ext.B3. On the basis of evidence the trial court found that Ext.B3 was not executed by defendants 2, 3 and 6. It was found that the other assignors of Ext.B3 had executed the document. On the strength of the same, it is held that the appellant had purchased 4/7 share in the plaint schedule property. 2. In arriving at the finding the trial court has relied on the opinion of the expert to whom the matter was referred as to whether the finger print in the document was indeed that of defendants 2, 3 and 6. The trial court also noted that the value of the improvements in the property itself, according to the 8th defendant, was in the region of Rs.60,000/- but Ext.B3 was executed for a sum of Rs.7,000/- only. Other discrepancies were S.A.NO.393/96 3 also noticed. It is on this basis that the case of defendants 2, 3 and 6 not having executed Ext.B3 was arrived at. The Appeal filed by the appellant proved unsuccessful and hence the Second Appeal. 3. I heard Sri. Mayankutty Mather, learned counsel appearing for the appellant and Sri.D.Krishna Prasad, who represents the plaintiff, defendants 2, 3 and 6. 4. The questions of law raised in the memorandum of appeal reads as under: “a). Were the courts below justified in framing or considering any issue regarding the execution of Exhibit B3 by defendants 2, 4 and 6 in the absence of any pleading made by them that they have not executed the said document? b). Can Exhibit C2 report be termed as 'expert evidence' coming within the purview of Section 45 of the Evidence Act in the face of total lack of evidence regarding the skill and competency of the alleged expert who has submitted Exhibit C2 and even his very identity? c). Were the courts below justified under the circumstances in finding against the execution of Exhibit B3 by defendants 2 to 4 and 6 especially when the execution of the same is admitted by the other executants thereof viz. defendants 5, 7 and 9? 5. Sri. Mayankutty Mather, learned counsel for the appellant points out that the plaintiff sought 1/11th share of the plaint schedule property. The plaintiff set up a case that the plaint schedule property is partible among the parties resting the claim on the basis of the right of his father. The 8th defendant took up the S.A.NO.393/96 4 contention that he had obtained exclusive right by assignment by his mother in his name. Purchase Certificate was issued. Pending the Suit, the right of defendants 2 to 7 and 9 came to be conveyed to the appellant. There was no conflict of interest between the plaintiff and the appellant, it is submitted. The appellant was also setting up right on the basis of the right which the plaintiff set up and there was no basis for the court to consider the question relating to the validity or genuineness of Ext.B3, it is submitted. As far as the assignors of Ext.B3 are concerned the courts found that four out of seven sharers assigned their right to the appellant. Even after Ext.B3 was projected before the court there is no challenge in the suit by defendants 2, 3 and 6 by their raising appropriate pleadings challenging Ext.B3, it is submitted. He poses the question as to how the court could have considered and granted relief in relation to Ext.B3 even without there being pleadings on behalf of defendants 2, 3 and 6. He would submit that it is plainly impermissible. He further points out the conduct of defendants 2, 3 and 6 in instituting another Suit where they impugned Ext.B3, but later getting the said Suit stayed. It is pointed out that it would have been a different matter if the defendants sought to have the said suit tried along with the suit for partition. In such a case the court would have before it the pleadings of defendants 2, 3 and 6 regarding the validity and S.A.NO.393/96 5 genuineness of Ext.B3. Therefore, in a situation where there is no pleadings it is not open to the parties to adduce evidence it is contended. He next pointed out that the evidence of an expert is not to be treated as decisive. He would point out that actually the document contains the right hand thumb impression of the executants. But, what is taken as sample impression for the purpose of reference to the expert was the left hand thumb impression and he poses the question as to how the expert could have expressed the opinion which he has made. He would further point out that the evidence would show that defendants 2, 3 and 6 are the executants of Ext.B3 and he would submit that it is a fit case for the court to interfere in second appeal. 6. Per contra, learned counsel Sri. Krishna Prasad points out that as regards the suit instituted by defendants 2, 3 and 6 is concerned wherein Ext.B3 was specifically questioned, the said suit was not stayed by defendants 2, 3 and 6. It is submitted that actually the appellant who filed application to stay the Suit pointing out that the Suit for partition is pending. Secondly, it is pointed out by Sri.Krishna Prasad, that when the appellant filed application to get herself impleaded as supplemental defendant, the plaintiff and defendants 2, 3 and 6 had specifically raised objection pointing out that defendants 2, 3 and 6 had not executed Ext.B3. He would point out that the plaintiff has admittedly amended the plaint and S.A.NO.393/96 6 incorporated the plea calling in question Ext.B3. Therefore, there was absolutely nothing wrong in the court going into the genuineness of Ext.B3, he contends. He would further point out that law does not prevent the party from giving evidence. In the circumstances of this case he relied on the judgment of the Apex Court in Girijanandini Devi and others v. Bijendra Narain Choudhary (AIR 1967 SC 1124) wherein it is held as under: “Where the plaintiff sets up a case that a document relied upon by the defendants in support of their case is a fabrication, it is not necessary for him either by his original plaint or by amendment therein to formally plead that the document is a fabrication and still he is entitled to ask the Court to try that plea. Whether evidence in support of a party's case is reliable may be raised by the other party without incorporating the contention relating thereto in his pleading. Otherwise the trial of suits would be highly inconvenient, if not impossible, because at every stage where a party contends that the evidence relied upon by the other side is unreliable he would in the first instance be required to amend his pleading and to set up that case. The Code of Civil Procedure does not contemplate any such procedure and in practice it would, if insisted upon, be extremely cumbersome and would lead to extremely cumbersome and would lead to great delay and in some cases to serious injustice.” S.A.NO.393/96 7 7. He would further point out that the appellant had filed objections to the report of the expert before the trial court seeking to set aside the report. He points out that the appellant was given opportunity to adduce evidence and the matter was posted for evidence in fact. He would further point out that the present contention taken by the learned counsel for the appellant that Ext.B3 bears the right hand thumb impression of defendants 2, 3 and 6 and the samples taken were left hand thumb impression is not seen taken by the appellant before the trial court in the objections. Whatever that be the trial court came to reject the same by an order. The said order was carried by way of revision petition before this court and this court confirmed the order of the trial court. In the light of the fact that the appellant chose to challenge that order before the High Court and the said order has become final it is contended that it is not open to the appellant to raise any argument as regards the reliability of the report of the expert. He would further contend that while there may be some discrepancies in the deposition of Defendant No.2 and Defendant No.4 particularly in a Second Appeal it may not be proper for this court to re-appreciate the evidence and take a different view from that of the courts below. 8. It is true that evidence is not to be let in without proper pleadings . In this case it is to be noted that it cannot be S.A.NO.393/96 8 said that there is no pleading. When the appellant was impleaded and Ext.B3 was set up by her the plaintiff has admittedly amended the plaint and disputed the genuineness of Ext.B3. Therefore, an issue arose between the parties. It is true that defendants 2, 3 and 6 had not raised specific written statement questioning Ext.B3. But, I cannot at the same time overlook the fact that when the appellant sought to get herself impleaded that is opposed by the said defendants also by filing written objections. Further, I notice that defendants 3 and 6 filed written statement adopting the contention of the 10th defendant. The 10th defendant filed written statement supporting the plaintiff. Thus, they supported the reliefs sought by the plaintiff and they admitted the case of the plaintiff that the suit property is partible, that is to say they were amenable to partition of the properties. Still later, when the plaint is amended and the plaintiff incorporated the challenge to Ext.B3, when they do not file written statement the effect of the same would be that they admit the plaint allegations. It is not a case where defendants 3 and 6 gave evidence to the effect that they have indeed executed Ext.B3. If they attempted to give evidence that Ext.B3 was not indeed executed by them that may have been impermissible as they have not filed any written statement controverting the case of the plaintiff that Ext.B3 was not a genuine document. So, by their not filing written statement they are accepting the position of the S.A.NO.393/96 9 plaintiff that Ext.B3 is not genuine. If they mounted the witness box in support of the case of the plaintiff, particularly in the light of the fact that they have already filed objection at the stage of impleading, I must reject the appellant's contention that they could not have been permitted to adduce evidence. Therefore, in the facts of this case, I am of the view that in the absence of written statement by defendants 3 and 6 questioning the execution of Ext.B3 by defendants 3 and 6, it cannot be held that they cannot give evidence. 9. As far as the question relating to the findings by the courts below regarding the non-execution of Ext.B3 by defendants 2, 3 and 6 is concerned I would feel that it falls squarely in the realm of appreciation of evidence though the learned counsel for the appellant would point out that the deposition would show that the defendants admitted that they have put thumb impression on some papers. I feel that, that cannot be treated as an admission that they have executed the document in question. Some other discrepancies are also pointed out. It cannot be said that there is any perversity in the findings arrived at by the courts below. I would refer to the finding of the trial court wherein it is, inter alia, stated as follows: “The same counsel is representing both D5 & D8. In such a case, the genuineness of Exhibit B3 is to be suspected. Moreover, it has come out from the S.A.NO.393/96 10 evidence of persons who are supporting Exhibit B3 that all the signatories to the said document had gone to the Office of the scribe somewhere about 12.00 Noon of 7-4-1984. It has come out clearly that the Sub Registrar's Office is situated just opposite to the office of the scribe. In such a case, the version of the persons supporting Exhibit B3 that it was executed from the house of D5 since D3 is not well is unable to accept. If D3 also could have gone to scribe's office, there would not have been any impediment for D3 to execute and register the document from the Registrar's office itself. The fact that Exhibit B3 was registered from the house of D5, who is supporting the case of D8, is opposing the case of the plaintiff, also assumes very much importance in this context.....................From the evidence of D11, it is not revealed as to what was her capacity to purchase the major share of the plaint A schedule property. The consideration shown for the 7/11 shares of the plaint A schedule property, the total extent of which is 96 cents, is Rs.7,000/=. The evidence of DW1 who is none other than the D8, is to the effect that in the plaint A schedule property, improvements worth more than Rs.60,000/= was effected by him. It is hard to believe that D8 would not have been informed about Exhibit B3 transaction, though he acted unaware of the same, especially when D8 and D11 are residing together.” 10. Learned counsel for the appellant would point out that thumb impression of different hands would be different. It is S.A.NO.393/96 11 not in dispute that both the courts have not proceeded as if the report of the expert is to be treated as a piece of evidence. Of course, I am not impressed by the reasoning that Ext.B3 would be hit by the doctrine of lis pendens. 11. It is contended by the learned counsel for the appellant that as far as the second defendant is concerned, he has not even been examined and there is no pleading also. I notice that when the other defendants excluding, of course, defendants 3 and 6 were examined, there was cross-examination of the witnesses on behalf of defendants 2, 3 and 6. Thus, while it may be true that the second defendant was not himself examined, he has very much participated in the trial by cross-examining the witnesses on behalf of the appellant. Even in the application filed for reference of the matter to the finger print expert, it is stated that in view of the stand of defendants 2, 3 and 6, the opinion of the expert is necessitated. Even if there is no written statement, it means that the case of the plaintiff is admitted. This means that he admits that the suit properties are partible. He must also impliedly be taken to admit the case of the plaintiff regarding Ext.B3. In such circumstances, as to how the second appellant is to prove his case and whether he has proved his case, should not detain me, particularly in the second appellate jurisdiction, when the two courts below have accepted their case that Defendants 2, 3 and 6 have not S.A.NO.393/96 12 executed Ext.B3. 12. I also see any reason to accept the case of the appellant that since the 11th defendant has applied for an expert opinion, I should accept the version of the 11th defendant as regards execution of Ext.B3. I do not see any merit in the complaint of the appellant, in the circumstances of the case, as against the rejection of the application seeking an expert opinion on the basis that the document contains the right-hand thumb impression, while the sample taken was of the left-hand. At any rate, the expert opinion is but a piece of evidence. In such circumstances, I find no merit in this Second Appeal and I dismiss the Second Appeal. But, in view of the nature of the case, the parties are directed to bear their respective costs. Sd/= (K.M.JOSEPH) JUDGE. MS/kbk // True Copy // PS to Judge S.A.NO.393/96 13 K. M. JOSEPH, J. S.A.NO. 393 OF 1996 E JUDGMENT 13th November, 2009.