IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 SA.No. 612 of 1997(F) --------------------- AS.54/1994 of ADDL. DISTRICT COURT, PARAVUR OS.15/1989 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT(S)/APPELLANTS/DEFENDANTS 2 TO 5: ----------------------------------------------------------------------- 1. PONNAPPAN, S/O. PAPPU, AGED 40, POTHANAKOOTTAM, NOW RESIDING AT KALAPPARAKUDY, KODANADU KARA, -DO- VILLAGE. 2. KUTTY, S/O. KUNJAMBA, AGD 50 YEARS, -DO- -DO- (DIED) 3. KUNJAN, S/O. KUNJAMBA, AGED 42, -DO- -DO- 4. SARASU, D/O. KUNJAMBA, AGED 40, -DO- -DO- ADDL. R5 TO R14 IMPLEADED. 5. NEROTHI, AGED 75, H/O. KUTTY, -DO- -DO- 6. VIJAYAN, AGED 49, S/O. KUTTY, -DO- -DO- 7. BHAI, AGED 45, D/O. KUTY, -DO- -DO- 8. VALSA, AGED 42, D/O. KUTTY, -DO- -DO- 9. MAJAKUMARI, AGED 40, D/O. KUTTY, -DO- -DO- 10. AMMINI AMMA, AGED 50, W/O. KUNJAN, -DO- -DO- 11. OMANA, AGED 48, W/O. KUNJAN, -DO- -DO- 12. GEETHA, AGED 35, D/O. KUNJAN, -DO- -DO- 13. SREEJA, AGED 33, D/O. KUNJAN, -DO- -DO- 14. ANILA, AGED 28, D/O. KUNJAN, -DO- -DO- ADDL. A5 TO A14 IMPLEADED BEING THE LRS OF THE DECEASED 2ND AND 3RD APPELLANTS VIDE ORDER DTD. 20.8.11 IN I.A. 1949/11. BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SMT.K.M.RAMYA SRI.P.K.RAKESH KUMAR RESPONDENT(S)/RESPONDENT/PLAINTIFF: ----------------------------------------------------------- KARTHU, AGED 51, VALLOORKOOTTAM VEEDU, KODANADU KARA AND VILLAGE. ADV. SRI.K.RAMACHANDRAN SRI.K.MANU RAJ THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 612 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November, 2011. JUDGMENT Defendants 2 to 5 in O.S.15 of 1989 before the Munsiff's Court, Perumbavoor are the appellants. During the pendency of the appeal second and third appellant passed away and their legal heirs have been brought on the party array. Parties and facts are hereinafter referred to as they are available before the trial court. 2. The issue that arises for consideration is regarding the paternity of the plaintiff and the first defendant. While the plaintiff claimed that she is the sole daughter of Kurumban, the first defendant also claimed the same status. 3. Admittedly, the property involved in the suit belonged to Kurumban. The trial court on an evaluation of the evidence came to the conclusion that the plaintiff is the daughter of Kurumban and the first defendant was not the S.A.612/1997. 2 daughter of Kurumban. The matter was carried in appeal by the disappointed defendants, but without much success. The appeal was dismissed confirming the judgment and decree of the trial court. 4. Notice is seen issued on the following questions of law: “(a) Is not the courts below grossly erred in casting the burden of proof on the defendants, the attitude of the courts below in finding fault with the defendants for not proving the ownership of the plaint property by inheritance. (b) Is not the approach taken by the courts below in brushing aside the evidentiary value of Exts. B1, B3 and B4 to substantiate their case and in relying on the oral testimony on the side of the plaintiff in deciding the question of right of ownership and possession perverse and untenable in law. (c) Is not the courts below erred in not appreciating the reasonable legal presumption based on the facts that if the plaintiff's case is S.A.612/1997. 3 accepted she was born to deceased Kurumban in his 68th year which is not general. (d) Is not the courts below acted without jurisdiction in accepting the case of the plaintiff when she refused to produce the best evidence namely the certificate of birth which she claimed to be in her possession.” 5. Learned counsel for the appellants pointed out that the courts below were not justified in holding that the first defendant is not the daughter of Kurumban. The reasons given are unjustified. According to the courts below, there was no documentary or convincing evidence to show that she was the daughter of Kurumban. According to learned counsel, the same scale should have been applied to the plaintiff also and should have held that the plaintiff has not been able to prove that she is the daughter of Kurumban. It is also contended that the plea of adverse possession and limitation urged before the courts below S.A.612/1997. 4 were not properly considered and accordingly the judgment and decree are clearly unsustainable. 6. Per contra, learned counsel appearing for the contesting respondents pointed out that both the courts below have evaluated the oral evidence in the case and had come to the conclusion that the plaintiff is the daughter of Kurumban. The materials before the trial court were convincing enough to arrive at a conclusion that the first defendant is not the daughter of Kurumban. While acceptable evidence was adduced by the plaintiff, the evidence adduced by the first defendant in support of her case is doubtful. Learned counsel pointed out that while the plaintiff examined the relatives of Kurumban, the first defendant was satisfied by examining some neighbours, whose evidence would reveal that they had no personal knowledge about various aspects regarding the relationship between the first defendant and Kurumban. Learned counsel then went on to point out that both the courts below S.A.612/1997. 5 have concurrently found that the plaintiff is the daughter of Kurumban and the first defendant is not his daughter. This is essentially a finding of fact and there is nothing to show that the courts below have erred in any manner in arriving at their conclusions. Therefore, there is no substantial question of law arises for consideration in this second appeal under Section 100 of the Code of Civil Procedure. 7. As already noticed, the core issue is regarding the paternity of the first defendant and the plaintiff. The courts below chose to accept the evidence of P.Ws. 2, 3 and 5 to come to the conclusion that the plaintiff is the daughter of Kurumban. Even assuming that the evidence of P.W.1 is self interested testimony, the evidence of P.Ws. 2, 3 and 5 inspired confidence in the mind of the courts below. P.Ws. 2 and 3 are the nephews of Kurumban. They spoke in favour of the plaintiff and pointed out that the father of the first defendant was not Kurumban but Kunjole. P.W. 6, a resident nearby, also spoken in favour of the plaintiff. S.A.612/1997. 6 8. Considerable reliance was placed by the appellants on Ext.B1 document, where the sister of the first defendant is described as the daughter of Kurumban. From that recital, it is contended that it follows that the first defendant is also the daughter of Kurumban. Both the courts below have considered this aspect in considerable detail and had come to the conclusion that by virtue of that recital alone, it could not be concluded that the first defendant is the daughter of Kurumban. It has come out in evidence that Kurumban married thrice. At the time when he married the mother of the first defendant, she already had two daughters. The evidence on record shows that in the relationship between Kurumban and Kiliyal, no children were born to them. Both the courts below took the view that under those circumstances if Kurumban treated one of the daughters of Kiliyal as his own daughter, it could not be said that there is anything wrong with that conduct. That by itself is not sufficient to show that the first defendant is the S.A.612/1997. 7 daughter of Kurumban. In all probability at the relevant time when the property was settled in favour of the husband of Palli Kurumba, one of the daughters of Kiliyal, he treated the daughter of Kiliyil as his own daughter. But that by itself will not give the same status to the first defendant. 9. The first defendant mainly relies on the evidence of D.Ws.2 and 3 in support of her plea that she is the daughter of Kurumban. Both the courts below have found that their evidence are far from satisfactory and do not inspire confidence in the mind of the court to come to the conclusion that the first defendant is the daughter of Kurumban. 10. Ext.A5 is the certificate issued in the ordinary course of discharge of official duties and that shows that the plaintiff is the only daughter of Kurumban. It was issued by P.W.5. No motive is attributed to him. Apart from these facts, nothing was brought out to show that P.Ws.2 and 3 had reasons to depose against the first defendant. No S.A.612/1997. 8 motives are attributed to them. These were the facts which had persuaded the court below to accept that the plaintiff is the daughter of Kurumban and the first defendant has not been successful in establishing that she too is the daughter of Kurumban. Being a question of fact, no interference is called for. It may be useful to refer to the decisions reported in Narbada Prasad v. Chhaganlal (AIR 1969 SC 395) and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (AIR 1999 SC 2213) at this juncture. In the decision in Narbada Prasad's case (supra) it was held as follows: “.....still the practice of the courts has uniformly been to give the greatest assurance to the assessment of evidence made by the Judge who hears the witnesses and watches their demeanour and judges of their credibility in the first instance. In an appeal the burden is on the appellant to prove how the judgment under appeal is wrong. to establish this he must do something more than merely ask for a re-assessment of the evidence. He must show S.A.612/1997. 9 where the assessment has gone wrong. Where the court of first instance relies upon probabilities alone, the appellate court may be in as good position as the court of trial in judging of the probabilities; but where the court of trial relies upon its own sense of the credibility of a witness the appellate court is certainly at a disadvantage, because it has not before it the witnesses but the dead record of the deposition as recorded. Where the evidence which the Judge considers truthful not on the probabilities of the case but because the Judge on his observation of the manner in which the witness deposed, the appellate Court should be slow to depart from the conclusion of the trial judge.” 11. In the decision reported in Kondiba Dagadu Kadam's case (supra) it was held as follows: “It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of act, being the first appellate court. It is true that the lower appellate court should not ordinarily reject S.A.612/1997. 10 witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex court, or was based upon inadmissible evidence or arrived at without evidence.” 12. Before applying the principles in the above decisions, the plea regarding adverse possession and limitation may also be considered. It is true that in S.A.612/1997. 11 paragraph 4 of the written statement, there is a plea that eversince the death of Kurumba they have been in possession of the property in exclusion of others. Both the courts below found that the plea is not sufficient to establish adverse possession and limitation and there is no evidence in that regard. 13. Learned counsel appearing for the appellants pointed out that on a perusal of Ext. X1 would reveal that as early as in 1974 the defendants were asserting title to the suit property and that is sufficient to show that they were denying the title of the plaintiff. 14. It is well settled that going by the plea taken in the written statement, they claimed absolute title over the suit property and claimed to be absolute owners of the property also. Of course the defendants are entitled to take inconsistent pleas in the written statement. But they were unwilling to accept the plaintiff as the true owner of the property. It is by now well settled that unless adverse S.A.612/1997. 12 possession and limitation is exercised against the true owner, that plea cannot succeed. Both the courts below have found that the plea is without any basis and there is no evidence in that regard. This too is a finding of fact. Applying the principles laid down in the decisions already referred to above, it follows that no interference is called for with the judgment and decree of the court below and the appeal is liable to the dismissed. I do so. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.