Ahammed Kutty and others v. Palliyalil Muhammedkutty and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 21[ST] DAY OF JULY 2023 / 30TH ASHADHA, 1945** **R.S.A.NO. 721 OF 2004** **AGAINST THE JUDGMENT AND DECREE DATED 19.12.2002 IN A.S.NO.86 OF 1992 OF THE ADDITIONAL DISTRICT COURT (ADHOC), MANJERI** **AND THE JUDGMENT DATED 20.02.1992 IN O.S.NO.329 OF 1988 OF THE MUNSIFF COURT ,PARAPPANANGADI** ## **APPELLANTS/RESPONDENTS/PLAINTIFFS:** - **1 AHAMMED KUTTY (DIED)* S/O MANGATT ABDULLA KUTTY @ BAVA, AGED 63, NAMBRANGODE HOUSE, CHENAKKAL, ANGADI P.O. THENJIPALAM VIA, MALAPPURAM DISTRICT - 673 636.** - **2 MOIDEEN KUTTY, S/O.MANGATT ABDULLA KUTTY @ BAVA, AGED 48, DO.** - **3 KUNJIPATHUMMA, D/O.MANGATT ALIKUTTY AGED 46, W/O.AHAMMED, KUTTODIYIL HOUSE, DO.** - **4 ABDUL RAHIMAN.M., S/O.MANGATT ALIKUTTY AGED 41, KUTTODIYIL HOUSE DO.** - **5 AMINA, D/O.MANGATT ALIKUTTY, AGED 39, DO.** - **6 SULEKHA, D/O. MANGATT ALIKUTTY, AGED 37, DO.** - **7 HAJARA, D/O.MANGATT KOYAKUTTY, AGED 25 NAMBRANGODE HOUSE, DO.** - **8 MAIMOONA, D/O.MANGATT KOYAKUTTY, AGED 23, DO.** - **9 ABDUL AZIZ, S/O.MANGATT KOYAKUTTY, AGED 21, DO.** 2 R.S.A.No.721 of 2004 ## **10* PALLEEMA,** **AGED 70 YEARS** **W/O.LATE AHAMMEDKUTYY,NAMBRANGODE HOUSE, CHENAKKAL, ANGADI P.O. THENJIPALAM VIA, MALAPPURAM DISTRICT - 673 636.** - **11* ABDUL LATHEEF, AGED 57 YEARS, S/O.LATE AHAMMEDKUTYY,NAMBRANGODE HOUSE, CHENAKKAL, ANGADI P.O. THENJIPALAM VIA,TIRURANGADI, MALAPPURAM DISTRICT - 673 636.** - **12* MOHAMMED KOYA, AGED 56 YEARS, S/O.LATE AHAMMEDKUTYY,NAMBRANGODE HOUSE, CHENAKKAL, ANGADI P.O. THENJIPALAM VIA, MALAPPURAM DISTRICT - 673 636.** **13* SHEREEF AHAMMED, AGED 50 YEARS, S/O.LATE AHAMMEDKUTYY,NAMBRANGODE HOUSE, CHENAKKAL, ANGADI P.O. THENJIPALAM VIA, MALAPPURAM DISTRICT - 673 636.** - **14* ABDUL RAHMAN, AGED 48 YEARS** **S/O.LATE AHAMMEDKUTYY,NAMBRANGODE HOUSE, CHENAKKAL, ANGADI P.O. THENJIPALAM VIA, MALAPPURAM DISTRICT - 673 636.** - **15* UNUS M., AGED 44 YEARS** - **S/O.LATE AHAMMEDKUTYY,NAMBRANGODE HOUSE, CHENAKKAL, ANGADI P.O. THENJIPALAM VIA, TIRURANGADI,MALAPPURAM DISTRICT - 673 636.** - **16* ANES MANGATT, AGED 42 YEARS,** **S/O.LATE AHAMMEDKUTYY,NAMBRANGODE HOUSE, CHENAKKAL, ANGADI P.O. THENJIPALAM VIA, MALAPPURAM DISTRICT - 673 636.** 3 R.S.A.No.721 of 2004 **17* SHOUKATHALI M., AGED 40 YEARS S/O.LATE AHAMMEDKUTYY,NAMBRANGODE HOUSE, CHENAKKAL, ANGADI P.O. THENJIPALAM VIA, MALAPPURAM DISTRICT - 673 636.** ***LEGAL HEIRS OF THE DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 10 TO 17 AS PER ORDER DATED 16.06.2023 IN IA.1/2023** **BY ADVS. K.S.MADHUSOODANAN C.P.PEETHAMBARAN** ## **RESPONDENTS/APPELLANTS/DEFENDANTS (DEFENDANTS 1, 20,** **22/APPELLANTS 1, 2, 4):** - **1 PALLIYALIL MUHAMMEDKUTTY S/O.KAMMUKUTTY, KIZHUKERI HOUSE, CHENAKKAL ANGADI, P.O.THENHIPALAM VIA, MALAPPURAM DISTRICT - 673 636.** - **2 ACHAPARAMBIL AMINAKUTTY UMMA D/O.AHAMMED, AGED 58.** - **3 PALLIYALI KARIM, S/O.ALAVIKUTTY MUSALIAR AGED 54, KANNADI THADAM HOUSE, PANTHARANGADI P.O., TIRURANGADI VIA.** **LEGAL REPRESENTATIVE OF DEFENDANT 21/APPELLANTS 6 TO 11** - **4 AYISHA, W/O.LATE KUNDIL NALAKATH MUHAMMED @ BAVA, KALANARI HOUSE, DO.** - **5 SAIFUNNISA, AGED 28, DO.** - **6 BATHESHA, AGED 20 DO.** - **7 SABITHA, AGED 16 DO.** 4 R.S.A.No.721 of 2004 - **8 HUSBUL HUCK AGED 12, S/O.LATE NALAKATH MUHAMMED @ BAVA, DO.** - **9 MUSATHUL MUSAVIA AGED 8, DO.** **(DEFENDANTS 2 TO 5, 7 TO 17/RESPONDENTS 12 TO 15, 17 TO 27)** - **10 HAVUMMA, D/O.PALLIYALIL KAMMUTTY AGED 60M, W/O.P.K.MUHAMMED KUTTY SRANK,, VALAPPIL HOUSE, P.O.KARUVAM THIRUTHY, VIA, FEROKE, KOZHIKODE.** - **11 HALEEMA, D/O.PALLIYALIL KAMMUTTY AGED 57, JALIYA NAGAR, SOUTH, MOONNIYORE P.O., VIA THIRURANGADI.** - **12 SAINA (DIED) (RECORDED), W/O.MAMMEDKUTTY, AGED 49, CHELEMPRA P.O. MALAPPURAM DIST.** **(IT IS RECORDED THAT AFTER THE DEATH OF R12 THE RIGHT TO SUE SURVIVES TO THE 1ST RESPONDENT AS PER ORDER DATED 12.11.2007 IN IA.1811/2007.)** - **13 AMINA, AGED 69, D/O. KAMMAKKATTIL HOUSE CHENAKKAL ANAGADI P.O. THENJIPPALAM,, MALAPPURAM.** - **14 KUNHIKAMMUTTY, S/O.PATHUTTY, AGED 58 PORAKKADU MEPALLUR HOUSE, CHENAKKAL ANGADI P.O., THENJIPALA, MALAPPURAM DISTRICT 673 636.** - **15 MUHAMMED KUTTY, S/O.PATHUTTY, AGED 58, DO.** - **16 HAMZA, S/O.PATHUTTY, AGED 40 DO.** - **17 KATHIYUMMA, D/O.PATHUTTY, AGED 60 DO.** - **18 PATHUMA, D/O.PATHUTTY, AGED 58 DO.** 5 R.S.A.No.721 of 2004 - **19 PATHUMMAYI, D/O.PATHUTTY, AGED 50 DO.** - **20 AISHA BEEVI, D/O. PATHUTTY, AGED 48, DO.** - **21 SUBAIDA, D/O.PATHUTTY, AGED 40, DO.** - **22 KODUVAPPARAMBAN KOYAKUTTY, S/O.AYISSA BEEVI, AGED 50, PUTHEN PURAKKAL HOUSE, P.O.KUTOOR NORTH A.R.NAGAR, MALAPPURAM 676 303.** - **23 BIRIYAKUTTY, S/O.AYISSA BEEVI, AGED 46, DO.** - **24 MUHAMMED KUTTY, S/O.AYISSA BEEVI AGED 45, DO.** - **25 UMMACHIKUTTY AYISHA, AGED 63 W/O.MANGAT SIDDIQUE, KUTTIYIL HOUSE,, CHENAKKAL ANGADI P.O. THENJIPPALAM, MALAPPURAM - 676 636.** - **26 SULEKHA, AGED 40, D/O.MANGATT SIDDIQUE DO.** - **27 MUHAMMED KOYA, AGED 39, S/O MANGATT SIDDIQUE, DO.** - **28 MUHAMMED BASHEER, AGED 33, DO.** - **29 ABDUL RAHIMAN, AGED 30, DO.** - **SUPPLEMENTARY RESPONDENTS/LEGAL HEIRS OF VEERAN MOIDU (LEGAL REP.D23/APPELLANT 5)** - **30 AYAMMA, AGED 60, W/O.LATE KALLARUKANDI VEERAM MOIDEEN, AVULLIL HOUSE,, CHENAKKAL ANAGADI P.O. THENJIPPALAM VIA,, MALAPPURAM DISTRICT - 673 636.** 6 R.S.A.No.721 of 2004 - **31 ALAVIKUTTY, AGED 40, S/O.LATE KALLARIKANDI VEERAN MOIDEEN, DO.** - **32 MUHAMMED KOYA, AGED 37, DO.** - **33 ABDUL NAZARA, AGED 32, DO.** - **34 ILIYAS, AGED 29, DO.** - **35 NAUFAL, AGED 26, DO.** **SUPPLEMENTARY RESPONDENTS/LEGAL HEIRS OF PURAKKAD AHAMMED KUTTY (LEGAL REP.36/RSPONDENT 16)** - **36 NAFEESA PURAKKADU, AGED 53 W/O.LATE AHAMMED KUTTY, KIZHUKERI HOUSE,, CHENAKKAL ANGADI P.O. THENHIPPALAM, MALAPPURAM DISTRICT.** - **37 KUNHIPPA PURAKKAD, AGED 34, DO.** - **38 MUSTHAFA PURAKKADU, AGED 32, DO.** - **39 ASIYA PURAKKADU, AGED 36, W/O.LATE AHAMMEDKUTTY, DO.** - **40 MOIDEEN KOYA PURAKKAD, AGED 30, S/O.LATE AHAMMEDKUTTY, DO.** - **41 ABDUL LATHEEF PURAKKADU, AGED 28, DO.** - **42 MUHAMMED HANEEFA PURAKKADU, AGED 26, DO.** **BY ADVS. SRI.M.X.ANTONY LIJO SRI.P.CHANDRASEKHAR SMT.R.DYANA** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 05.07.2023, THE COURT ON 21.07.2023 DELIVERED THE FOLLOWING:** 7 R.S.A.No.721 of 2004 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------R.S.A.No. 721 of 2004** ## **----------------------------------------------------------Dated this the 21[st] day of July, 2023 JUDGMENT** Plaintiffs in O.S.No.329 of 1988 on the files of the Munsiff’s Court, Parappanangadi are the appellants. They sought a decree of partition. The suit was decreed as per the judgment dated 20.02.1992 and a preliminary decree was passed. That preliminary decree was challenged by the defendants 1, 20, 21, 22 and 23 by filing an appeal as A.S No. 86 of 1992 before the Additional District Court , Manjeri. That appeal was allowed as per the judgment dated 19.12.2002. Aggrieved by the said judgment and decree, whereby the suit was dismissed, this Second Appeal was filed under Section 100 of the Code of Civil Procedure, 1908. 2. The basic facts are as follows: Sri.Koyakutty and Sri.Kammutti were near relatives. They obtained possession of plaint B schedule property under a Kanam Kychit, which was registered as document No.2197/1913. The plaintiffs claim that they and defendant No.19 being the heirs of Sri.Koyakutty are entitled 32/96 8 R.S.A.No.721 of 2004 shares of plaint B schedule property. Other defendants are the legal representatives of Sri. Kammutti and the subsequent purchasers. The plaintiffs contend that the 1[st] defendant was managing the property for and on behalf of all, but he denied share of profits to the plaintiffs. Hence, they filed the suit claiming partition by allotting them 32/96 shares of plaint B schedule property and share of profits proportionate to their share. 3. The 1[st] defendant resisted the suit contending that plaint B schedule property is his absolute property. He claimed that as early as on 30.11.1938, Sri.Koyakutty surrendered his half kanam right in the property in favour of Sri.Kammutti on receipt of consideration. The 1[st] defendant further claimed that as per a receipt dated 01.02.1955 whatever right Sri.Koyakutty had was relinquished in his favour. Thus, he maintained that the property was not partible. He further averred that a portion of the said property was assigned by him to defendant No.20, who is his wife. Portions of the property were conveyed in favour of defendant Nos.22 and 23 9 R.S.A.No.721 of 2004 also. Another contention raised by the 1[st] defendant was that the 20[th] defendant assigned her property in favour of defendant No.21. The 1[st] defendant alternatively contented that even accepting the plea of the plaintiffs, their right in the property has been lost by ouster and limitation. 4. Defendants No. 2 and 4 supported the claim of the 1[st] defendant. Defendants No. 5 to 8 filed written statement supporting the case of the plaintiffs and they claimed allotment of their shares separately. Defendant No.19 also supported the case of the plaintiffs. Defendant Nos.20, 21, 22 and 23 filed separate written statements asserting their right to the portions of the plaint B schedule property, which they had purchased as per separate sale deeds. They had contended that they were bona fide purchasers for valuable consideration and therefore there is no reason to dislodge them from the respective portions of B plaint schedule property they own and possess. 5. At the trial before the learned Munsiff, PW1 (1[st] plaintiff), DW1 (1[st] defendant), DW2 (21[st] defendant), DW3 10 ## R.S.A.No.721 of 2004 (independent witness), DW4 (23[rd] defendant), DW5 (5[th] defendant) and DW6 (19[th] defendant) were examined. Documents received in evidence are Exts.A1 to A3 and Exts.B1 to B21. 6. The decree of the learned Munsiff ordering partition was reversed by the lower appellate court. The learned Munsiff took the view that Ext.B1 on which the 1[st] defendant mainly relied on to substantiate his claim of title to plaint B schedule property was not proved. That finding was reversed by the lower appellate court. The learned Additional District Judge held that such an old document dated 30.11.1938 (Ext.B1) having been produced by the 1[st] defendant, whose custody should be considered to be proper, can be acted upon and presumption of genuineness can be attached to it. 7. The 1[st] defendant who, along with others, appealed had filed I.A.No.23 of 2002 in the appeal producing therewith two documents. The lower appellate court received the said documents and admitted the same in evidence observing as follows:- 11 R.S.A.No.721 of 2004 “11. The learned counsel for the respondents has referred decision reported in **Matha v. Kalliani [1987 (1) KLT SB 21]** (case No.36). He has argued that there is absolutely no scope for introducing 2 more documents in the appellate stage. The learned counsel for the appellant has countered this argument and submitted that since he has already stated about the existence and execution of these two documents at the threshold of the dispute, there is nothing to doubt its genuineness. He would not have suppressed the said documents before the Munsiff court since it will definitely enable them to establish their case before the lower court. He has argued that these two documents could not be produced before the lower court and he could trace out it subsequently and therefore there is no legal impediment under Order XLI Rule 27 to admit these documents at appeal stage. As already discussed above the existence of these 2 documents have been referred in Ext.A3, even prior to the institution of the suit in support of the appellants contention. Normally a prudent man would have produced this document if it will support his case. Therefore, I do not agree with the learned counsel for the respondent that the law will not allow this court to admit these documents, which would not in any way prejudice his case as he was fully aware on which document, the defendants would rely, if a suit is filed earlier issuing suit notice. Therefore, I have no hesitation to admit these documents in evidence and to rely on them. Accordingly, the said application stands allowed.” 12 R.S.A.No.721 of 2004 8. The appellants/plaintiffs would submit that without following the procedure contemplated in Rules 27, 28 and 29 of Order XLI of the Code, the lower appellate court received the said documents in evidence and that resulted in reversal of the trial court decree and that caused miscarriage of justice. 9. The learned counsel appearing for the respondents, on the other hand, supported the view taken by the lower appellate court. The said view is justified by contending that the first document being original of Ext.A1, there cannot have any bar for its admission in evidence. The second document is the receipt mentioned by the 1[st] defendant in Ext.A3 reply notice, which he had sent as early as on 25.09.1988, and therefore, the same can be received in evidence without any demur or objection. 10. The substantial questions of law formulated are the following:- “1) Whether first appellate court was justified in invoking the powers under Rule 27 Order XLI of Code of Civil Procedure to receive additional documents, without 13 R.S.A.No.721 of 2004 affording opportunity to the appellants to dispute the documents when they were not produced before the trial court and also relying on the documents without proper proof. 2) Whether first appellate court was justified in non- suiting the appellants relying on the additional evidence, which were not properly proved.” 11. Ext.A1 is a certified copy of registered assignment deed dated 07.05.1937. The parties are not at dispute on Ext.A1. The original of which was produced by the 1[st] defendant before the first Appellate Court. From the recitals in Ext.A1, it can be seen that plaint B schedule property was outstanding on lease in favour of Sri.Koyakutty and another. Inferably, the said another is Sri.Kammutti and that fact is also undisputed. By virtue of Ext.A1 the jenmam right over plaint B schedule property alone was purchased in favour of the 1[st] defendant. He then was a minor and his mother as guardian got the assignment. The claim of the plaintiffs is that the property continued to be under the lease arrangement, and therefore, half right of Sri.Koyakutty in the property devolved upon the plaintiffs and his other successors. On the said premises the plaintiffs claim partition. 14 R.S.A.No.721 of 2004 12. As against the aforesaid claim, the 1[st] defendant would contend that Sri.Koyakutty relinquished his fractional leasehold right in the property in favour of Sri.Kammutti as per Ext.B1, which is a receipt dated 30.11.1938. If Ext.B1 is acted upon as a genuine document, the leasehold right in respect of the property in question converged in Sri.Kammutti. The further claim of the 1[st] defendant is that Sri.Kammutti executed a receipt on 01.02.1955 in his favour, and thereby he has become the absolute owner of the said property. If the said case of the 1[st] defendant is accepted, the plaintiffs can only be non-suited. On the other hand, Ext.B1 and the receipt dated 01.02.1955, which the 1[st] defendant produced before the lower appellate court and was accepted by the said court in evidence, are not genuine documents and unacceptable, partition as claimed by the plaintiffs is unavoidable. 13. The learned Munsiff considered in detail the evidence let in by the 1[st] defendant to prove Ext.B1. This being a receipt in favour of the 1[st] defendant, he shall be the 15 R.S.A.No.721 of 2004 person naturally in possession of that document. He has produced the same in court and therefore it can be said that it was produced in court from the proper custody. But no evidence is brought on record to prove its execution. The 1[st] defendant is DW1. He unequivocally admitted that he did not know exactly who had executed Ext. B1. He also deposed that he did not know the handwriting or signature of any of the attesting witnesses in it. There was no possibility also for him to know its execution. He did not or shortly had attained an age at the time of its execution. Neither the executant nor the witnesses to Ext.B1 is now alive. Therefore, the possible way of proving the said document was by resorting to Section 69 of the Indian Evidence Act, 1872. But the 1[st] defendant did not choose to bring to court any witness, who could have identified the handwriting or signature of the executant or the witnesses to Ext.B1. 14. It is pertinent to note that Ext. B1 is an unregistered document. Ext. A1, however, is a registered document. As a sequel to Ext. A1 and in relation to the same 16 R.S.A.No.721 of 2004 property Ext. B1 was executed. Value of the property dealt with in Ext. B1 is Rs.12.50/- and therefore it did not require registration. But when the lease deed was a registered document as is seen from the recitals in Ext. A1 any ordinary prudent man would have opted for registration of relinquishment of such a lease. Non registration by itself is not a reason to discard Ext. B1, but it creates a reasonable doubt about its genuineness. That certainly disallows the court to draw a presumption under Section 90 of the Evidence Act and obliges the 1[st] defendant to prove execution of Ext.B1. The 1[st] defendant claimed that while the property was on lease, after obtaining Ext.A1 assignment deed, his father, Sri.Kammuti obtained Ext.B1 receipt from Sri. Koyakutty. It is his further claim that on 01.02.1955 he obtained rights of his father in the property relinquished in his favour. 15. The 1[st] defendant thus claiming himself to be the owner had executed a sale deed in respect of 40¾ cents out of plaint B schedule in favour of his wife on 15.01.1980. Ext.B2 is the said sale deed. It may be noted that that was 17 R.S.A.No.721 of 2004 the first opportunity for the 1[st] defendant to mention about Ext.B1 and also the receipt dated 01.02.1955. In Ext.B2 the 1[st] defendant traced his title to Ext.A1, jenmam assignment deed No. 710 of 1937. In page No.2 of Ext.A1, it has been specifically recited that the property scheduled thereto was outstanding on lease in favour of Sri.Koyakutty and another. Therefore, the 1[st] defendant and the 20[th] defendant, who is his wife and in favour of whom the said assignment deed was executed subsequently, certainly would have known about the lease outstanding in respect of that property. Similarly, in Ext.B4, assignment deed in favour of defendant No.22 and Ext.B5, assignment deed in favour of defendant No.23, the title to the property was traced to Ext.A1. Therefore, defendant Nos.22 and 23 also were expected to verify Ext.A1. So they were also aware about the lease outstanding in the said property. Had they been bona fide purchasers, they should have ascertained as to what happened to the said lease. At none of such occasions, the 1[st] defendant brought Ext.B1 to the notice of the respective purchasers. 18 R.S.A.No.721 of 2004 16. More curiously, the 1[st] defendant did not disclose about the receipt dated 01.02.1955 to any such purchasers. Even if not to his wife (defendant No.20), certainly he should have disclosed that fact to defendants No.22 and 23. Sri.Kammutti admittedly had heirs other than the 1[st] defendant. Hence, without the receipt dated 01.02.1955, the 1[st] defendant cannot claim absolute right to plaint B schedule property and was not entitled to alienate the property as his own. But without disclosing about Ext.B1 and receipt dated 01.02.1955, the 1[st] defendant had executed Exts.B2, B4 and B5. 17. The receipt dated 01.02.1955 was yet not produced before the learned Munsiff, but only in the appeal, before the Additional District Court. The reasons stated thereof is that the said document could be traced only in a subsequent search in his house. The learned Additional District Judge readily had accepted the contention of the 1[st] defendant and justified the delay stating that in the reply sent by the 1[st] defendant, Ext.A3, he had mentioned about such a 19 ## R.S.A.No.721 of 2004 receipt. Without adverting to any of the suspicious circumstances mentioned above the learned Additional District Judge took such a view and admitted the document in evidence. 18. The learned Munsiff considered acceptability of Ext.B1 after referring to all the facts and circumstances mentioned above in very great detail. Oral testimony of DW1, particularly with reference to the possibility of its execution and the nature in which it was produced before the court, were properly appreciated and held that Ext.B1 could not be accepted as a genuine document. The said finding was interfered with by the lower appellate court on flimsy reasons, and therefore, the findings of the appellate court in that regard cannot be sustained. 19. In **A.Andisamy Chettiar v. A.Subburaj Chettiar [(2015) 17 SCC 713],** the Apex Court held that the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an 20 R.S.A.No.721 of 2004 earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. 20. In **Uttaradi Mutt v. Raghavendra Swamy Mutt** **[(2018) 10 SCC 484]** , the Apex Court held that allowing the application filed under Order XLI, Rule 27 of the Code does not lead to the result that the additional documents/additional evidence can be straightway exhibited rather, the applicant would have to not only prove the existence, authenticity and genuineness of the said documents but also the contents thereof, in accordance with law. It is observed that thus the documents which are permitted to be brought on record as additional evidence have to be proved by the appellant before the Reference Court, in accordance with law and only thereafter and after proving the existence, authenticity and genuineness 21 R.S.A.No.721 of 2004 of the said documents including contents thereof, the same can be taken into consideration by the Reference Court. 21. The Apex Court in **Sanjay Kumar Singh v. State of Jharkhand [AIR 2022 SC 1372]** held that even after permitting to adduce the additional evidence, the applicant has to prove the existence, authenticity and genuineness of the documents including contents thereof, in accordance with law and for the aforesaid purpose, the matter is to be remanded to the Reference Court. 22. Applying the law laid down in the aforesaid decisions to the facts of this case, there cannot be any doubt that admission of receipt dated 01.02.1955 by the lower appellate court in evidence without proving its execution and contents, is totally incorrect. Of course, if admission of receipt dated 01.02.1955 in evidence would have the obvious consequence of a decree in favour of the 1[st] defendant, the matter should have been remanded to give an opportunity to him to prove it. But, when he failed to prove Ext. B1, proof of receipt dated 01.02.1955 will not improve his case. 22 R.S.A.No.721 of 2004 23. Therefore, the findings of the lower appellate court that the 1[st] defendant obtained absolute right over plaint B schedule property by virtue of Ext.B1 as well as receipt dated 01.02.1955 (not formally exhibited as a document in evidence) is wrong and liable to be reversed. The inevitable consequence is that the substantial questions of law formulated for consideration in this appeal are liable to be answered in favour of the appellants. 24. Resultantly, this appeal is allowed by setting aside the judgment and decree dated 19.12.2002 of the Additional District Judge, Manjeri. The judgment and decree dated 20.02.1992 in O.S.No.329 of 1988 of the Munsiff’s Court, Parappanangadi is restored. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr