Abdul Aziz v. Rukkiyath and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.M.BABU
Judgment Date: 2019-08-29
Court Decision / Holding: Second Appeal dismissed.
Final Disposition: Dismissed.

Parties to the Case

Appellants / Petitioners

Abdul Aziz

Respondents

Rukkiyath
Nisad
Niyaz
Nishad
Sugathan

Legal Representation & Advocates

Counsels for Petitioners

• G.P. Shinod
• Ram Mohan G.
• Govind Padmanabhan
• Ajit G. Anjarlekar

Counsels for Respondents

• Vinoy Varghese Kallumoottill

Case Synopsis & Summary

This Regular Second Appeal, RSA No.493/2019, was heard by the Kerala High Court (Single Judge: A.M. Babu) and arises from a dispute over title to the A schedule property. The plaintiff Abdul Aziz, represented by senior advocates, contends that he and his father purchased the property in 1962 under Ext A1 and that, after his father’s death, he became the absolute owner. The A schedule adjoins the B schedule property owned by the first defendant; according to the plaintiff, the first defendant encroached into the A schedule due to a survey error. He seeks a declaration of title to the A schedule property, possession, boundary determination, and an injunction against further encroachment. The defendants oppose, arguing the plaintiff lacks title, Ext A1 is void, and that a building (and hotel) exists on their land, therefore the plaintiff cannot establish title to A schedule. Evidence was led (PWs 1–2, DW1; Exts A1–A2, B1–B2, C1, C1(a)). The core legal issue concerns whether Ext A1, a certified copy of a 1962 sale deed, can prove title under Sec. 90 of the Indian Evidence Act, where the document is not original. The court held that Sec. 90 does not apply to copies without a foundation under Sec. 65 for secondary evidence, found Ext A1 insufficient to prove title, and dismissed the second appeal. The result is affirmation of the lower courts’ dismissal of the suit.

Provisions of Law Cited

Section 90, Indian Evidence ActSection 65, Indian Evidence Act

Legal Doctrines & Maxims

Presumption under Section 90 Indian Evidence Act does not extend to copies or certified copies unless a foundation under Section 65 for secondary evidence is established.

Submissions & Arguments

Contentions of Appellants / Petitioners

The plaintiff/appellant contends that Ext A1 is a certified copy of a 1962 sale deed proving title to the A schedule property; he asserts that the 30-year status of the document falls within Sec. 90 of the Indian Evidence Act, and that mere absence of the original cannot defeat his title; Ext A1, though a copy, was sought to be treated as proof of title; the plaintiff maintains that the boundary between A and B schedules should be determined in his favor and that encroachment was caused by a survey error.

Contentions of Respondents

The defendants contend that the plaintiff’s claimed A schedule property is part of their land; Ext A1 is void and does not prove title; they assert a building and hotel exist on their land; they argue that no title is shown by the plaintiff; no foundation under Sec. 65 for admitting secondary evidence is laid; the trial and appellate courts rightly concluded that Ext A1 cannot prove title.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Balakrishnan Nambeesan P. v. A.P.Meenakshyamma	2014 (2) KHC 23	Distinguished	Cited by the plaintiff as supportive of extending Sec. 90 to copies; court held this decision not helpful to the plaintiff in the present case.
Nepurjan Bibi Choudhury v. Musabbir Ali Choudhury	2018 KHC 4792	Distinguished	Similar to Balakrishnan Nambeesan, the court found this decision not helpful to the plaintiff for the present facts.
Sri. Lakhi Baruah v. Sri. Padma Kanta Kalita	AIR 1996 SC 1253	Positive	Apex Court authority cited to hold that Sec. 90 does not apply to copies without a proper foundation under Sec. 65 for secondary evidence; the present case follows this principle.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 29TH DAY OF AUGUST 2019 / 7TH BHADRA, 1941** **RSA.No.493 OF 2019** **AS 35/2014 OF SUB COURT, KARUNAGAPPALLY** **OS 102/2007 OF MUNSIFF-MAGISTRATE COURT, SASTHAMCOTTA** ## **APPELLANT/APPELLANT/PLAINTIFF** **ABDUL AZIZ AGED 63 YEARS S/O KASIM PILLAI, RESIDING AT PARAMBIL VEEDU, KAVANAD (P.O), KUREEPUZHA CHERRY, KOLLAM WEST VILLAGE, KOLLAM DISTRICT** **BY ADVS. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.GOVIND PADMANAABHAN SRI.AJIT G.ANJARLEKAR** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS :** **1 RUKKIYATH AGED 58, W/O IBRAHIMKUTTY, RESIDING AT THONDALIL VEEDU, AYIKKUNNAM MURI, SASTHAMKOTTA VILLAGE, KOLLAM DISTRICT-690521.** **2 NISAD, AGED 36 ,** **S/O.IBRAHIMKUTTY, RESIDING AT THONDALIL VEEDU, AYIKKUNNAM MURI, SASTHAMKOTTA VILLAGE, KOLLAM DISTRICT- 690521.** **3 NIYAZ, AGED 34, S/O.IBRAHIMKUTTY, RESIDING AT THONDALIL VEEDU, AYIKKUNNAM MURI, SASTHAMKOTTA VILLAGE, KOLLAM** **RSA.493/2019** 2 **DISTRICT- 690521.** **4 NISHAD, AGED 32, S/O.IBRAHIMKUTTY, RESIDING AT THONDALIL VEEDU, AYIKKUNNAM MURI, SASTHAMKOTTA VILLAGE, KOLLAM DISTRICT- 690521.** **5 SUGATHAN, AGED 61, RESIDING AT VILAYIL VADAKKATHIL, MANAKKARA MURI, SASTHAMCOTTA VILLAGE, KOLLAM DISTRICT- 690521.** **R3, R5 BY ADV. VINOY VARGHESE KALLUMOOTTILL** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-08-2019, THE COURT ON 29-08-2019 DELIVERED THE FOLLOWING:** **RSA.493/2019** 3 ## **JUDGMENT** 1. The plaintiff is in second appeal since his suit and appeal met dismissal. 2. The case of the plaintiff is summarised below : He owns and he is in possession of the plaint A schedule property. He and his father purchased it together in 1962 under Ext A1 sale deed. He became the absolute owner of it on the death of his father. The property on the north of the A schedule property is the B schedule property which was the property of the first defendant. After his death, it devolved upon defendants 2 to 5. Taking advantage of a mistake crept in the survey records at the time of re-survey, the first defendant encroached into the A schedule property. 3. The plaintiff sought to declare his title to the A schedule property. He sought recovery of it from the defendants. Another relief sought for was to fix the boundary **RSA.493/2019** 4 between the A and B schedule properties. Injunction was sought to restrain further encroachment into the A schedule property. 4. The defendants contended as under : The property claimed by the plaintiff is a portion of the property of the defendants. The plaintiff has no title to the A schedule property. Ext A1 is a void doucument. A building of the defendants is situated in their property. A hotel is housed in the said building. 5. Both sides adduced evidence before the trial court. PWs 1 and 2 and DW1 were examined. Exts A1, A2, B1, B2, C1 and C1(a) were marked. 6. Heard Sri.Govind Padmanabhan, the learned counsel for the plaintiff/appellant. 7. The A schedule property as shown in the plaint **RSA.493/2019** 5 - measures two cents. The plaintiff cannot have any relief of his decreed unless he proves his title to the A schedule property. He relies on Ext A1 to prove his title. The same is the certified copy of a sale deed executed in 1962. As is stated by the courts below, Ext A1 does not refer to any previous title deed under which the executant of Ext A1 got title to the A schedule property. What is referred to in Ext A1 is only a thandaper account number, namely, T.P No.2910. The plaintiff did not produce any document to prove that his vendor had any right in any property held in thandaper account No.2910. Any entry in a revenue record does not confer title to any person on any property as rightly stated by the appellate court. The plaintiff failed to prove his title to the A schedule property as held by the courts below. 8. An attempt is made in the memorandum of appeal to contend that Ext A1 is sufficient to prove title as it is a - 30 years old document. Sec.90 of the Indian Evidence **RSA.493/2019** 6 Act is pressed into service. Ext A1 is not the original document. It is only a certified copy. The leaned counsel has relied on two decisions to canvas the position that the presumption under Sec.90 of the Evidence Act extends to certified copies as well. The decisions are Balakrishnan Nambeesan P. v. A.P.Meenakshyamma (2014 (2) KHC 23) and Nepurjan Bibi Choudhury v. Musabbir Ali Choudhury (2018 KHC 4792) . In this connection I may refer to a decision of the apex court in Sri.Lakhi Baruah v. Sri.Padma Kanta Kalita (AIR 1996 SC 1253) . It is held as follows : Sec.90 does not apply to a copy or a certified copy even though 30 years old, but if a foundation is laid for the admission of the secondary evidence under Sec.65 of the Evidence Act by proof of loss or destruction of the original and the copy which is 30 years old is produced from proper custody, then only the signature authenticating the copy may under Sec.90 be presumed to be genuine. **RSA.493/2019** 7 No such foundation is laid in the present case. The plaintiff did not even state as to what happened to the original. It is also not stated that the certified copy was obtained 30 years ago from the date of its production in court. Therefore the decisions relied on by the plaintiff are not helpful to him. That apart, Balakrishnan Nambeesan's case (supra) is one came in a situation where the gift deed was challenged not by the donor, but by strangers. 9. The presumption under Sec.90 of the Evidence Act extends only to the execution of a 30 years old document and of the signature or the handwriting of the executant of it. It cannot be presumed under Sec.90 that the executant of the document had title to the subject-matter of it to sell it. Sec.90 does not come to the aid of the plaintiff. 10. The second appeal is without any merit. No **RSA.493/2019** 8 substantial question of law is involved in it. It only deserves a dismissal. 11. Dismissed. Sd/- A.M.BABU Judge Mrcs/26.8. /True copy/