IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 RSA.No. 713 of 2010() --------------------- AS.78/2002 of SUB COURT,NEYYATTINKARA OS.395/2001 of I ADDL.M.C.,NEYYATTINKARA .................... APPELLANTS/DEFENDANTS ----------------------------------------- 1. GEETHA VISWANATHAN, W/O. THE LATE SRI. VISWANATHAN, RESIDING AT VISWA NILAYAM, OORUTTAMBALAM.P.O., MARANALLOOR VILLAGE, THIRUVANANTHAPURAM KERALA STATE. 2. ARUN S/O. VISWANATHAN, RESIDING AT VISWA NILAYAM, OORUTTAMBALAM.P.O., MARANALLOOR VILLAGE, THIRUVANANTHAPURAM KERALA STATE. 3. AISWARYA, D/O. VISWANATHAN, RESIDING AT VISWA NILAYAM, OORUTTAMBALAM.P.O., MARANALLOOR VILLAGE, THIRUVANANTHAPURAM, KERALA STATE. BY ADV. SRI.S.V.RAJAN SRI.R.SUDHISH SMT.M.MANJU SMT.SHIBI. K.P. SRI.K.R.RANJITH SRI.A.N.PREMLAL RESPONDENT(S): PLAINTIFF ------------------------ SASIDHARAN AGED 54, RESIDING AT SOUMYA, PARANKIMANVILA, MARANALLOOR DESOM & VILLAGE, THIRUVANANTHAPURAM. ADV.SRI.PHILIP MATHEWS - CAVEATER THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.713 OF 2010 -------------------------------- Dated this the 27th day of September 2010 JUDGMENT CR The appellants are the legal heirs of the original defendant who had been impleaded as additional appellants, consequent to death of their predecessor, during the pendency of the appeal before the court below. Concurrent decision rendered by two courts below that the respondent/plaintiff is entitled to recovery of possession of the suit property on the basis of his title is challenged in the second appeal. 2. Subject matter involved in the suit is fifteen cents of land with a building and three shop rooms in Maranelloor village. Admittedly, the above property was under the possession and enjoyment of one Pankajakshy on the basis of an assignment of mortgage over the property in her favour, in 1954. The mortgagor had instituted a suit for redemption of the property, in which Pankajakshy, the mortgagee, among other contentions had set up a claim of tenancy under the Kerala Land Reforms Act. That suit, which was not disputed, was dismissed for default. Asserting that she had obtained absolute title over the mortgage holding, she executed A1 deed in favour of her sister's son, the plaintiff, who was in occupation of one of the shop rooms in the property, conducting a tailoring shop. Ext.A1 sale deed is dated R.S.A No.713 OF 2010 - 2 - 03/05/1989. While the suit for redemption was pending, the original defendant, who is the brother-in-law of Pankajakshy as having married her sister, had obtained janmam right over the mortgage holding from the janmi under B3 sale deed. Though he had taken a sale deed over the property encumbered by the mortgage, admittedly, he did not take any steps to redeem the property from Pankajakshy, the mortgagee. Plaintiff, on the basis of the title obtained under A1 sale deed from Pankajakshy, laid the suit for its recovery alleging that during his absence while he had gone to Delhi in search of employment, the defendant had trespassed upon the property and reduced it into his possession. Resisting the suit claim, the defendant contended that Pankajakshy, the mortgagee, was his wife and he is holding the property as the title holder by virtue of title derived under B3 sale deed from the janmi of the property. It was further contended that the previous suit for redemption, O.S No.3/1979, was compromised and, pursuant thereto, Ext.B4 sale deed was executed in his favour assigning the janmam right over the property. He also claimed right over the property as the legal heir of Pankajakshy who had passed away in 1993. A1 sale deed taken by the plaintiff was impeached by the defendant contending that it was not executed by Pankajakshy. R.S.A No.713 OF 2010 - 3 - 3. The trial court, appreciating the materials produced by both sides, with reference to the pleadings presented, initially, had passed a decree in favour of the respondent/plaintiff. That decree was challenged by the defendant preferring an appeal. In that appeal, the appellant/defendant filed two applications, one for framing an additional issue that A1 deed was vitiated by fraud on registration as it was registered at a different sub registry, which had no jurisdiction over the suit property, by including a nonexisting property situate in such registry. The appellant/defendant, on the above ground, sought for amendment of his written statement to raise such a plea as well to impeach A1 deed obtained by the plaintiff. Yet another petition was filed for reception of two documents, a G.O and another, to substantiate the plea which was sought to be included by amending his written statement. The lower appellate court, allowing both that applications, set aside the decree of the trial court and remitted the matter for fresh disposal. Respondent/plaintiff challenged the order of remand filing an appeal, F.A.O No.187/2008 before this court. That appeal was allowed setting aside the remand order by which the lower appellate court was directed to consider the merit of the application moved for admission of additional evidence in R.S.A No.713 OF 2010 - 4 - accordance with the provision covered under Order 41 Rule 27 of the Code of Civil Procedure. The application moved by the appellant/defendant for amending his written statement to include a new plea that A1 deed was a fraud on registration, which was allowed by the lower appellate court, was found to be not entertainable, and it was dismissed. After the remand order was set aside and the appeal remitted back to the lower appellate court, after hearing the counsel on both sides, the impugned judgment was rendered by that court by which the decree passed by the trial court was confirmed. Aggrieved thereby, the appellants, the legal heirs of the original defendant, have preferred this appeal. 4. Referring to the rules of pleadings covered by the Code of Civil Procedure and also the Civil Rules of Practice, the learned counsel for the appellants contended before me that though specific particulars as to the fraud on registration have not been incorporated in the written statement filed by the original defendant, still, on the documentary evidence tendered by the appellant with the petition filed for reception of additional evidence moved under Order 41 Rule 27 of the Code of Civil Procedure, the lower appellate court ought to have framed an additional issue whether there was a fraud on registration in R.S.A No.713 OF 2010 - 5 - execution of A1 sale deed. The learned counsel for the appellant relied upon sub Rule 3 of Order 14 of the Code of Civil Procedure to contend that issues can be raised not only on the pleadings, but, on documents tendered by the parties as well. Reliance is placed on “Kalimuthu v Kanji” (1993(2) KLT 1006) to canvass support for that proposition. A second line of attack against the concurrent decree granted by the two courts below in favour of the respondent/plaintiff canvassed by the counsel was set upon the edifice that though the defendant disputed the title of the plaintiff over the suit property, he had, in the alternative, asserted his title of having prescribed the same by adverse possession. Though such a plea was raised, both the courts, according to the learned counsel, failed to consider that plea in accordance with the settled principles of law and, in fact, the appellate court has brushed aside that plea holding that the plea of adverse possession canvassed by the defendant is meritless since he had not admitted ownership over the property with the plaintiff. So much so, it is contended that the above two grounds of attack levelled against the judgments rendered by the courts below constitute substantial questions of law deserving consideration of this court, for entertaining the appeal and to have a disposal on its merits. R.S.A No.713 OF 2010 - 6 - 5. Since the respondent had filed a caveat, I heard the learned counsel for the respondent as well who supported the judgment rendered by the court below contending that the appeal is devoid of any merit. 6. First and foremost, the vital question to be considered is whether it is open to the appellants to raise the challenge that there was fraud on registration with respect to A1 sale deed in view of the decision rendered by this court earlier in F.A.O No.187/2008. It is admitted that there was also a review against the judgment rendered in that appeal holding that the application moved for amending the written statement to include such a plea was devoid of any merit. The remand order passed by the lower appellate court, previously, directing to raise an additional issue in the suit whether there was fraud on registration in respect of A1 sale deed taken by the plaintiff, was set aside by this court in F.A.O No.187/2008, and the application I.A No.1090/2007 moved by the defendant was dismissed. The lower appellate court was directed to consider the application I.A No.1708/2007 moved by the defendant under Order 41 Rule 27 of the Code of Civil Procedure on its merits and dispose the appeal. The defendant had filed a petition seeking review of the judgment rendered by this court as above in F.A.O No.187/2008. That review petition R.S.A No.713 OF 2010 - 7 - was also dismissed. Though this court had held that the raising of an additional issue over the fraud on registration over A1 sale deed taken by the plaintiff, as canvassed by the defendant, is not entertainable, still, according to the counsel for the appellants, in view of the documentary material tendered with his petition under Order 41 Rule 27 of the Code of Civil Procedure, the lower appellate court should have raised an issue thereof and entered a finding on such issue. Submission made as above by the counsel with reference to rules of pleadings deserve to be taken note of only for its rejection. This court has unequivocally stated that the plea canvassed by the defendant to impeach A1 sale was not available to him in the facts involved in the case and he cannot agitate that question in the challenge against the decree rendered by the trial court before the lower appellate court. While setting aside the order of remand passed by the lower appellate court in the first appeal and directing that court to consider the appeal afresh, this court had also directed for disposal of the other application (I.A No.1708/2007) moved by the defendant for reception of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure does not postulate that whatever documents produced by him deserved to be accepted as additional evidence and, if necessary, fresh issues have to be R.S.A No.713 OF 2010 - 8 - raised on the basis of such documents tendered in the appeal. Previous order passed by the lower appellate court allowing the application for reception of additional evidence was set aside by this court in F.A.O No.187/2008 while remitting the case for fresh disposal. The direction to consider the application for reception of additional evidence in the judgment rendered by this court only means that it should receive the attention of the lower appellate court in accordance with the provisions covered by Order 41 Rule 27 of the Code of Civil Procedure as of right. No party in an appeal can claim as of right reception of additional evidence in appeal to impeach the correctness of any order or decree passed by a court or tribunal. To receive such additional evidence, one of the two conditions covered by Rule 27 of Order 41 of Code of Civil Procedure has to be established. The party who seeks reception of such additional evidence must establish that notwithstanding the existence of due diligence, such evidence was not within the knowledge or could not, after the exercise of diligence, produced before the court at the time when the decree appealed against him was passed. It is also open to the party to canvass for that though there was lack of diligence on his part, still, the documents which are sought to be admitted as additional evidence require to be considered by the court to enable it to R.S.A No.713 OF 2010 - 9 - pronounce judgment or for any other substantial cause. Whereas the right of the party to lead additional evidence is hedged and not unbridled, the appellate court, if it requires production of any document or examination of any witness to enable it to pronounce judgment, or for any other substantial cause, is fully empowered to invoke the provision under Rule 27 of Order 41 to receive additional evidence. The rigor imposed under Rule 27 of Order 41 of the Code of Civil Procedure cannot be tampered with on the mere asking of a party by filing of an application in appeal, seeking reception of additional documents produced by him in evidence. Whatever be his case that such documents are essential for rendering a better judgment than what had been pronounced by the court, which is challenged in the appeal, the appellate court cannot overlook the interdiction placed under Rule 27 of Order 41 of Code of Civil Procedure, and its order, if the documents produced are received as additional evidence, should reflect its satisfaction that the necessary foundation has been made for reception of such fresh documents in appeal. The lower appellate court, in the present case, after adverting to the application moved by the appellants, it is seen, had found that the reception of the documents produced as additional evidence is not required for a decision on the appeal. Though it has not R.S.A No.713 OF 2010 - 10 - expressed so in clear cut terms, still, it is evident from the observations made by the lower appellate court that it had considered the application moved by the appellants under Order 41 Rule 27 of the Code of Civil Procedure in accordance with the settled principles of law and had reached a conclusion that the documents sought to be produced are not liable to be admitted as fresh evidence. The learned counsel for the appellants referring to some judicial authorities has contended that the documents produced with his petition under Order 41 Rule 27 of Code of Civil Procedure have vital significance in resolving the disputes covered by the suit and it ought to have been received as additional evidence. After going through the judgments of the two courts below and having regard to the contentions made by the defendant in his written statement, I find, the challenge attempted to be pressed into service with reference to the documents that there was a fraud on registration in the execution of A1 sale deed has no value or merit at all. Merely because the defendant resisted the title of the plaintiff obtained under a registered document contending that the suit property covered by that deed fall within the jurisdiction of a different sub registry office and not at the office it was registered and such registration was made including another property as situate within such R.S.A No.713 OF 2010 - 11 - registry, it does not follow that a fraud on registration had been carried out. The question whether the parties intended to commit a fraud on the law of registration is a question of fact, and it has to be pleaded and proved. What was the fraud practiced by the parties in execution of that document and how far the execution and registration of that document is vitiated by that fraud is required to consider whether that document so registered is invalid. To establish fraud on registration law, there must be collusion between parties to practice a fraud upon the registering officer. In the present case there is no pleading as to any fraud in registration, and, the amendment of pleading applied for to include such plea had been negatived earlier holding such amendment was not allowable. That being so, the argument canvassed to rake up that issue again is unworthy of any merit. Title of the property covered by A1 sale deed, it is seen, was with the executant of that deed, namely, Pankajakshy. Though the learned counsel for the appellant would contend that A1 was only an assignment of her mortgage rights, after going through that document, I find, it is an assignment of her title as having obtained full right after the mortgage, which, by that time, had become barred by limitation. The defendant had taken a sale deed from the janmi, the mortgagor, under B4 sale deed, but, he R.S.A No.713 OF 2010 - 12 - has not redeemed the property from the mortgagee, Pankajakshy, while it subsisted. No material was placed before the court to hold that the mortgage subsisted at the point of time when A1 deed was executed. The contention raised by the defendant that there was a compromise with the mortgagor and that led to the disposal of the previous suit for redemption and his taking of B4 sale deed from the mortgagor, is not supported by any materials. The finding concurrently entered by the courts below, over the plea of adverse possession canvassed by the original defendant, needless to point out, is a finding of fact and not open to challenge as a substantial question of law unless it is shown that there was wrong application of the principles of law in considering that plea. After going through the judgments of the courts below, it is seen that even the necessary foundation to constitute the plea of adverse possession as to when it commenced against the real owner has not been set out with necessary particulars in the written statement by the defendant. Though the observation made by the lower appellate court that without admitting the ownership of the plaintiff, the defendant was incapable to raise a plea of adverse possession cannot be approved where the defendant too had claimed right from the original acquirer, Pankajakshy, from whom the plaintiff also got R.S.A No.713 OF 2010 - 13 - assignment of title under A1 sale deed, the conclusion reached thereunder does not suffer from any infirmity. To sustain the plea of adverse possession, the defendant must plead and prove when his possession became animus possidendi as against the plaintiff/the owner, with notice or knowledge to such owner and also his possession as such continued for the statutory period enabling him to prescribe title over the property. Both these elements are totally absent in the pleading raised by the defendant and such being the position, the challenge canvassed impeaching the correctness of the finding on adverse possession by the courts below must also fail. The appeal is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE vdv