Balakrishnan and Sajith v. Afsal and Najeeb

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 21[ST] DAY OF MARCH 2024 / 1ST CHAITHRA, 1946** **RSA NO. 92 OF 2024** **AGAINST THE JUDGMENT AND DECREE DATED 29.07.2020 IN AS NO.90 OF 2014 OF ADDITIONAL DISTRICT COURT, OTTAPALAM ARISING OUT OF JUDGMENT AND DECREE DATED 25.08.2014 IN OS NO.190 OF 2012 OF MUNSIFF MAGISTRATE COURT, PATTAMBI** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **1 BALAKRISHNAN AGED 70 YEARS S/O. ATTASSERY VEETTIL RAMAN VAIDYAR, AGED ABOUT 60 YEARS (NOW 70 YEARS) S/O. ATTASSERY VEETTIL RAMAN VAIDYAR, VALLAPUZHA AMSOM DESOM, P.O. VALLAPUZHA, OTTAPLAM TALUK (NOW PATTAMBI TALUK), PIN - 679336** **2 SAJITH AGED 37 YEARS AGED ABOUT 27 YEARS (NOW 37 YEARS), S/O. ATTASSERY VEETTIL BALAKRISHNAN, VALLAPUZHA AMSOM, DESOM, P.O. VALLLAPUZHA, OTTAPALAM (NOW PATTAMBI TALUK)., PIN - 679336** **BY ADVS. P.C.CHACKO ASHA P.KURIAKOSE SHERIL ABRAHAM** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** **1 AFSAL AGED 37 YEARS AGED 29 YEARS, (NOW 39 YEARS), S/O. KINATTINGAL VEETTIL, KHADER, CHERUTHURUTHY VILLAGE, PUDUSSERY DESOM, THALAPPILLY TALUK, PIN - 679531** **2** ## **RSA NO. 92 OF 2024** **2 NAJEEB AGED 42 YEARS AGED 32 YEARS, (NOW 42 YEARS) S/O. PALATHINGAL VEETTIL VEERANKUTTY, P.O. PALLAM, PALLAM DESOM, DESAMANGALAM VILLAGE, THALAPPILLY TALUK, PIN - 679532** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.03.2024 AND THE COURT ON 21.03.2024 DELIVERED THE FOLLOWING:** **RSA NO. 92 OF 2024** **3** ## **CR** ## **JUDGMENT** Dated this the 21[st] day of March, 2024 This regular second appeal has been filed under Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 29.07.2020 in A.S.No.90/2014 on the files of the Additional District Court, Ottapalam, arose out of the judgment and decree dated 25.08.2014 in O.S.No.190/2012 on the files of the Munsiff's Court, Pattambi. Appellants herein are the defendants in the above Suit. Respondents herein are the plaintiffs. 2. Heard the learned counsel for the defendants/appellants on admission. Perused the verdicts of the trial court and the appellate court along with the records. 3. I shall refer the parties in this regular second appeal as 'plaintiffs' and 'defendants' for convenience. **RSA NO. 92 OF 2024** **4** 4. Plaintiffs instituted a suit seeking the relief of permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property. According to the plaintiffs, they obtained the plaint schedule property on the strength of a Marupattam sale deed No.1191/2012 of SRO, Pattambi and have been in absolute ownership and possession thereafter. As on 25.11.2012, the defendants made attempt to encroach upon the same, though they had no right to do so. 5. The defendants filed written statement, _inter alia,_ contending that the plaintiffs have no right over the plaint schedule property, on the strength of Marupattam sale deed No.1191/2012 since the prior document, viz., gift deed No.1452/1973 of SRO, Pattambi, executed by Chakkiema in favour of Panchali not came into existence. According to the defendants, the first defendant is still occupying the plaint schedule property as one among the legal heirs of Chakkiema who got the same as per deed No.842/1972 of SRO, **RSA NO. 92 OF 2024** **5** Pattambi. 6. The trial court recorded evidence. PW1 examined and Exts.A1 to A12 were marked on the side of the plaintiffs. Exts. B1 to B12 and Exts.C1 and C2 were also marked. 7. The trial court addressed the contention raised by both sides, where the defendants relied on Exts.B1 to B11 tax receipts to contend that they are having right and possession over the plaint schedule property. 8. It was noted by the trial court that as per Exts.A11 and A12, the plaintiffs paid tax for the years 2013 and 2014 and the plaintiffs relied on Ext.A5 certificate to contend that resurvey number of the property shown as 139/9 is an error and the real number is 139/15 as per Tandaper No.1854. Finally, the trial court decreed the suit, granting the relief of prohibitory injunction. Though an appeal was filed before the Additional District Court, Ottapalam, challenging the said verdict, the learned appellate Judge also concurred the finding of the trial court. **RSA NO. 92 OF 2024** **6** 9. In this matter, the specific case of the plaintiffs is that they got title over the plaint schedule property on the strength of Marupattam sale deed No.1191/2012, marked as Ext.A1. Exts.A3 and A4 are tax receipts in the name of the plaintiffs as on 15.11.2012 and 22.04.2009. Ext.A9, gift deed No.1454/1973 of SRO, Pattambi, is the prior document of Ext.A1. The first plaintiff, who was examined as PW1, deposed title on the strength of Ext.A1 and also possession thereof. In this matter, both sides would admit that Chakkiema obtained the plaint schedule property as per partition deed No.842/1972 of SRO, Pattambi. Ext.A9 is the gift deed executed by Chakkiema in favour of Panchali. Though the defendants would contend that Ext.A9 was not acted upon and the same was a namesake document, as of now Chakkiema and Panchali (donor and donee) are no more. It is relevant to note that Ext.A9 is a document beyond the period of 30 years when it was tendered in evidence before the trial court. **RSA NO. 92 OF 2024** **7** 10. Thus the question poses for consideration is, _what is the special status of a document proved to be thirty years of old?_ In this connection, Section 90 of the Indian Evidence Act, 1872 is relevant and the same deals with presumption as to documents of thirty years old. As per Section 90, _where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested._ 11. On an analysis of the Section, it can be seen that its ingredients are: - (i) The document in question must be purported to be or proved to be 30 years old; - (ii) It must be produced from a custody which the Court in the particular case considers proper; - (iii) If the above conditions are satisfied, the Court may **RSA NO. 92 OF 2024** **8** presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person is in that person’s handwriting; and (iv) In the case of a document executed or attested, the Court may presume that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation to Section 90 unequivocally says that documents are sent to be in proper custody, if they are in the place in which and under the care of the person with whom they would naturally be. It further says that no custody will be improper, if it is proved to have had a legitimate origin or if the circumstances of the particular case are such as to render such an origin probable. It is clear from a reading of the section and in particular that explanation that the presumption drawable under Section 90 of the Evidence Act has a direct bearing on the facts and circumstances in each case. Therefore, when the ingredients of Section 90 of the Evidence Act are satisfied, the presumption would squarely apply to a document which is thirty **RSA NO. 92 OF 2024** **9** years old. 12. Thus Ext.A9, which was produced from a lawful custody before the trial court is a document wherein the presumption under Section 90 of the Indian Evidence Act, would squarely apply. Therefore, unless no other convincing and compelling circumstances, the authenticity of Ext.A9 is well supported by the presumption under Section 90 of the Indian Evidence Act. Thus, Ext.A9 could not be held as a document which was not acted upon. It is interesting to note that Ext.A2 is the Marupattam sale deed No.1129/09 of SRO, Pattambi, executed in the year 2009 by Panchali prior to Ext.A1 and prior to that, Exts.A6, A7 and A8, viz., assignment deed No.3519/2008, Power of Attorney No.149/07 and assignment deed No.505/2009 were executed. Thus, it appears that Ext.A9 gift deed was acted upon which led to execution of Exts.A6, A7 and A8 prior to Exts.A1 and A2. Be it so, on no stretch of imagination, it could be held that Ext.A9 gift deed executed by Chakkiema, who obtained property on the strength of 1972 **RSA NO. 92 OF 2024** **10** partition deed, not taken effect in any manner. To the contrary, evidence available, as discussed, along with commission report marked as Ext.C1 and C2, the title and possession of the property of the plaintiffs are well established and the apprehension of the plaintiffs in the matter of trespass upon the plaint schedule property also was established. That apart, the contention of the defendants would also strengthen the apprehension at the instance of the plaintiffs. It is the unopposed position of law that mere tax payment in relation to a property in the name of a transferor of a property, after transferring the same, would not confer any right or title upon the transferor because such payment of tax is possible for want of delay in effecting mutation or due to slight difference in the survey number or in the resurvey number. The above discussion persuades this Court to hold that the trial court granted prohibitory injunction in favour of the plaintiffs, finding title and possession of the plaintiffs over the same and the first appellate court rightly concurred the same. **RSA NO. 92 OF 2024** **11** 13. In view of the above, concurrent verdicts rendered by the trial court and the appellate court do not require any interference by this Court. 14. In this case, in fact, the learned counsel for the defendants failed to justify any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus: _**“2. Power of Court to direct that the appeal be heard on the question formulated by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 15. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to **RSA NO. 92 OF 2024** **12** the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. **RSA NO. 92 OF 2024** **13** ## 16. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 17. In a latest decision of the Apex Court in **Government of Kerala v. Joseph** , reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]** , it was held, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** ## **(three – Judge** Bench) _,_ as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law._ **RSA NO. 92 OF 2024** **14** _The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 18. The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial _question of law” by suffixing the words “of general importance”_ as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of **RSA NO. 92 OF 2024** **15** general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 19. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. 20. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. All interlocutory applications pending in this second appeal stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. **Sd/A. BADHARUDEEN JUDGE** nkr **RSA NO. 92 OF 2024** **16** ## **APPENDIX OF RSA 92/2024** ## **PETITIONER ANNEXURES** **Annexure-I TRUE COPY OF THE ORDER VIDE NO. HCLSC (P)403/2020 DATED 25.11.2020 ISSUED BY THE SECRETARY, HIGH COURT LEGAL SERVICE COMMITTEE. Annexure-II TUE COPY OF THE ORDER VIDE NO. HCLSC P403/2020 DATED 13.07.2022 ISSUED BY THE SECRETARY, HIGH COURT LEGAL SERVICE COMMITTEE. Annexure-III TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE SECRETARY, HIGH COURT LEGAL SERVICE COMMITTEE DATED 07.11.2023.**