IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 FAO.No. 295 of 2007() --------------------- AS.222/2005 of ADDL. DISTRICT COURT, PARAVUR O.S.256/2001 of SUB COURT, NORTH PARAVUR. .................... APPELLANT (RESPONDENT/PLAINTIFF): ------------------------------------------- K.MOHANAN PILLAI,S/O.KARUNAKARAN PILLAI AGED 60 , KARUNALAYAM, KAPPRASSERY KARA, CHENGAMANAD VILLAGE, ALUVA. BY ADV. MR. DINESH R.SHENOY RESPONDENT(S): APPELLANTS/DEFENDANTS ------------------------------------ 1. PADMAVATHY AMMA, W/O. PADMALAYATHIL KARUNAKARAN PILLAI, KAPPRASSERY, CHENGAMANAD VILLAGE,ALUVA TALUK. 2. K.ASOKAN,S/O.PADMALAYATHIL KARUNAKARAN PILLAI, KAPPRASSERY, CHENGAMANAD VILLAGE,ALUVA TALUK. 3. K.AJAYAN,S/O..PADMALAYATHIL KARUNAKARAN PILLAI, KAPPRASSERY, CHENGAMANAD VILLAGE,ALUVA TALUK. 4. K.MANOJ KUMAR,,S/O..PADMALAYATHIL KARUNAKARAN PILLAI, KAPPRASSERY, CHENGAMANAD VILLAGE,ALUVA TALUK. 5. INDIRA VIJAYAN D/O.PADMALAYATHIL KARUNAKARAN PILLAI,AND W/O. VIJAYAN, OFFICERS COLONY, MAVOOR P.O., KOZHIKODE. 6. K.MALATHY SASI,D/O.PADMALAYATHIL KARUNAKARAN PILLAI,AND W/O. SASI, GEETHANJALI,KEEZHTHANI P.O.,IRINJALAKUDA. (...2/-) FAO.295/07 (2) 7. K.AJITHA,D/O.KARUNAKARAN PILLAI, AND W/O. PRABHAKARAN NAIR,DO.....DO.. 8. K.SHOBHANA,D/O.KARUNAKARAN PILLAI, DO...DO.... 9. K.MAYA,D/O.KARUNAKARAN PILLI AND W/O. VENUGOPALAN, DO.....DO...... ADV. MR. T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R7 MR. VINOD RAVINDRANATH FOR R5 & R7 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 11/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.295/07 ORDER ON I.A. 3730 OF 2007 IN F.A.O.295 OF 2007 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 11.3.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- F.A.O.No. 295 OF 2007 -------------------------------------------------- Dated this the 11th day of March, 2009 J U D G M E N T Plaintiff in O.S.256 of 2001 on the file of Sub Court, North Paravur is the appellant. Respondents are the defendants. Appeal is filed against the judgment in A.S.222 of 2005 whereunder Additional District Judge, North Paravur set aside the decree and judgment passed by learned Sub Judge and remanded the suit for fresh disposal. A.S.222 of 2005 was filed by the defendants challenging the preliminary decree. Appellant instituted the suit contending that the plaint schedule properties jointly belonged to the appellant and respondents and the properties are to be divided into ten equal shares and one such share is to be allotted to the appellant. It is the case of the appellant that item Nos.1 and 2 of plaint schedule properties are the properties allotted to the Thavazhy of first respondent mother and appellant and respondents 2 to 9, the children, as schedule E of Ext.A1 partition deed and item No. 3 of the property was purchased by first respondent out of the income FAO.295/2007 2 from the said properties as well as the consideration received by the selling portions of the properties allotted under Ext.A1. It was contended that under Ext.A2 partition deed, some of the properties were divided but item Nos. 1 and 2 were not divided thereunder and therefore they are available for partition. It was also contended that though item No.3 was purchased under Ext.A3 sale deed by first respondent, it was for the benefit of all the members of the Thavazhy and the said property is also available for partition. Respondents resisted the suit contending that plaint schedule properties are not the properties available for partition but the independent properties of the first respondent and therefore appellant is not entitled to claim for partition. It was also contended that first respondent has executed settlement deeds in favour of the other respondents and the properties are not available for partition. It is also contended that item No.3 of the plaint schedule property was purchased by first respondent and appellant has no right to claim partition. 2. Before the trial court, appellant alone was examined as PW1 and respondents did not adduce any oral evidence. FAO.295/2007 3 Exts.A1 to A7 and C1 series were marked. Learned Sub Judge, on the evidence, found that item Nos.1 and 2 of the plaint schedule properties are the properties allotted to the Thavazhy of the first respondent and her children and therefore the properties are available for partition. It was also found that item No.3 of the plaint schedule property was purchased out of the income from the properties allotted to the Thavazhy under Ext.A1 and therefore it is also available for partition. A preliminary decree was passed. 3. Respondents challenged the preliminary decree in A.S.222 of 2005 before the first Appellate Court. Appellants produced four documents as per I.A.478 of 2006. Those documents are the registration copies of the settlement deed executed by the first respondent in 1998 in favour of the respondents 8 and 4. Learned District Judge allowed I.A.478 of 2006 and received the documents as additional evidence and marked as Exts.B1 to B4. Learned District Judge after acceptance of Exts.B1 to B4 remanded the suit for fresh disposal. It is challenged in this appeal. 4. The appeal was admitted on the following substantial FAO.295/2007 4 questions of law: (1) Whether the lower Appellate Court was justified in receiving additional documents in evidence without satisfying the requirements under Order XLI Rule 27 of Code of Civil Procedure ? (2) Whether the First Appellate Court was justified in remanding the suit by receiving additional evidence when the additional documents are unilateral documents created by the respondents? 5. Learned counsel appearing for appellant and the learned senior counsel appearing for respondents were heard. 6. Item Nos. 1 and 2 of plaint schedule properties are two of the properties allotted to the Thavazhy of first respondent and her children under schedule E of Ext.A1 partition deed. Though under Ext.A2 partition deed, some of the joint properties of the Thavazhy were later divided in 1973, item Nos. 1 and 2 of the plaint schedule properties were not divided under Ext.A2. Item No.3 of the plaint schedule property was acquired under Ext.A3 sale deed. Learned Sub Judge accepted the case of the appellant that the said acquisition, though in the name of the FAO.295/2007 5 first respondent mother is for and on behalf of the Thavazhy and therefore found that it is also available for partition. Though it was contended before the trial Court that the properties exclusively belong to the first respondent, no evidence was adduced. Learned District Judge did not consider the findings of the learned Sub Judge on the evidence on record and instead accepting the additional documents produced as per I.A.478 of 2006 and marking the additional documents as Exts.B1 to B4, remanded the suit back to the trial Court. I.A. 478 of 2006 filed under Rule 27 of Order XLI of Code of Civil Procedure was allowed for the reason that respondents have stated in the affidavit of that application that photocopies of the documents were produced before the trial court but being photocopies they were not accepted and if the documents are received, it will not prejudice the appellant. 7. Under Rule 27 of Order XLI of Code of Civil Procedure Appellate Court can permit a party to produce additional documents only if the party satisfies the provisions of clause (a) or clause (aa) or clause (b) of Rule 27. If additional documents are to be received under clause (a), the first Appellate Court the FAO.295/2007 6 documents were produced but not received by the trial Court, should have been received in evidence. When the documents received as per I.A.478 of 2006 are not the documents which were produced before the trial court, as even according to the respondents what was produced before the trial Court was only photocopies of the documents, the additional documents could not have been received under clause (a). If clause (aa) is to be invoked, first appellate court should find that in spite of due diligence the documents could not have been produced. There is no such finding by the first appellate court. If the additional evidence is to be received under clause (b), first Appellate Court should require those documents to pronounce judgment or there should be other substantial reasons. 8. The judgment of the first appellate court and the order receiving the additional documents do not show that I.A.478 of 2006 was considered in the light of the provisions of Rule 27 of Order XLI of Code of Civil Procedure. Even if it is stated that the documents are to be received as additional evidence, it does not mean that suit is to be remanded to the trial court. Learned District Judge should have considered the appeal FAO.295/2007 7 on merits. Even if it is found that additional evidence is to be received, the effect of the additional evidence so received should have been considered and only thereafter the suit should have been remanded. As the additional documents could have been received under clause (b) for pronouncing a better judgment, the learned District Judge should have heard I.A.478 of 2006 only along with the hearing of the appeal and not earlier. Acceptance of additional documents under Rule 27 of Order XLI without considering the evidence considered by the trial Court and then remanding the appeal to the trial Court for the reason of acceptance of additional evidence is illegal. As the additional documents are documents executed by the respondents inter se, in the absence of plea of ouster and adverse possession, they would not have any difference in the right of the appellant for a share. This aspect was not considered by the first appellate court. The judgment of the learned Additional District Judge does not show that the appeal was heard on merits. The order of remand is therefore bad in law. Appeal is allowed. Order of remand is set aside. A.S.222 of 2005 is remanded to Additional District Court, North Paravur for FAO.295/2007 8 fresh disposal in accordance with law. The order in I.A.478 of 2006 is also set aside and I.A. 478 of 2006 is restored to file. Additional District Judge is directed to hear that application along with the appeal. Parties are directed to appear before Additional District Judge, North Paravur on 8.4.2009. M. SASIDHARAN NAMBIAR, JUDGE okb