## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN**
**MONDAY, THE 24TH DAY OF MARCH 2014/3RD CHAITHRA, 1936**
**RSA.No. 804 of 2012**
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**AGAINST THE JUDGMENT IN AS 54/2009 of DISTRICT COURT, PATHANAMTHITTA DATED 06-01-2012 AGAINST THE JUDGMENT IN OS 332/1997 of MUNSIFF COURT, PATHANAMTHITTA DATED 20-12-2008**
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## **APPELLANT(S)/APPELLANTS/DEFENDANTS:**
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**1. CHANDRIKA,**
**PURAMUTTATH, NAKKALICKAL PO, KIDANGANNUR MURI, KIDANGANNUR VILLAGE, KOZHENCHERRY TALUK.**
**2. RAGHAVAN PILLAI,**
- **PURAMUTTATH, NAKKALICKAL PO, KIDANGANNUR MURI, KIDANGANNUR VILLAGE, KOZHENCHERRY TALUK.**
**BY ADV. SRI.T.M.ABDUL LATHEEF**
## **RESPONDENT(S)/RESPONDENT/PLAINTIFF**
**--------------------------------------------------------------**
**NARAYANIAMMA CHELLAMMA, PURAMUTTATH, NAKKALICKAL PO, KIDANGANNUR MURI, KIDANGANNUR VILLAGE, KOZHENCHERRY TALUK-689 514.**
**BY ADV. SRI.V.PHILIP MATHEW**
**THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**PJ**
## **P. BHAVADASAN, J.**
- - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 804 of 2012
- - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of March, 2014.
## **JUDGMENT**
The defendants in a suit for recovery of possession on the strength of title over plaint item No.2 and consequential injunction, who suffered a decree at the hands of the trial court which was confirmed in appeal are the appellants.
2. The facts necessary for the disposal of this
appeal are as follows:
According to the plaintiff she obtained 13 cents of property as per settlement deed No. 2204/75 executed by her mother. First defendant is the wife of the second defendant and they are residing in the adjacent property. According to the plaintiff, the entire 13 cents belongs to her and
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nobodyelse had any manner of right over the same. Alleging that the defendants are laying claim to 3 cents of property within 13 cents, which is shown as item No.2, she laid the suit.
3. The suit was resisted by the defendants pointing out that item No.2 property shown in the plaint was gifted to her brother Raman Pillai by gift deed No.167/78 and by subsequent assignment deed etc., ultimately the property came into the possession of the defendants. It was contended that the plaintiff had no manner of right over item No.2. They also contended that if at all the plaintiff had any manner of right, the same has been lost by adverse possession and limitation.
4. The court below raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts. A1 and A2. The defendants had D.Ws.1 to 4 examined and Exts.B1 to B6 marked. Ext.C1 is the Survey plan and Ext.C2 is the specimen
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thumb impression of the plaintiff. Exts.X1 and X2 are third party exhibits.
5. On an appreciation of the evidence in the case, the trial court came to the conclusion that the defendants had failed to prove that Ext.B1 dated 27.7.1998 alleged to be the gift deed by which the plaintiff parted away with plaint item No.2 was infact executed by the plaintiff. The plea of adverse possession was also found against. The suit was accordingly decreed.
6. The aggrieved defendants carried the matter in appeal. The appellate court on an independent evaluation of the evidence came to the identical conclusion as that of the trial court and dismissed the appeal. Hence this Second Appeal.
7. Learned counsel appearing for the appellants very vehemently contended that the finding of the courts below that Section 68 of the Indian Evidence Act has not been
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complied with does not arise for consideration in this case for the simple reason that there is no specific denial of execution of Ext.A1 gift deed by the donor. Section 68 of the Evidence Act is applicable only in a case where there is specific denial and the document in question being a registered one, an element of solemnity is attached to it. Since there was no specific denial, there was no attempt on the part of the defendants to prove that it was infact executed by the plaintiff in favour of her brother. Apart from the said fact, learned counsel pointed out that several subsequent assignments have taken place and a house was also put up in the property wherein the defendants are residing now. In the earlier round of litigation, the lower appellate court had once remanded the matter to the trial court for identification of the property covered by the gift deed. That remand order, according to the learned counsel, was for a specific purpose and after remand the trial court has gone beyond the scope of remand which is
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impermissible. In support of the contention that if there is no specific denial of execution of the gift deed as contemplated under the proviso to Section 68 of the Indian Evidence Act, the burden is on the plaintiff to prove that she has not executed the gift deed. In support of the above contention, learned counsel relied on the decisions reported in Kadiya Umma v. Mayankutty (1992 (1) K.L.T. 461) and in Kannan Nambiar v. Narayani Amma (1984 K.L.T. 855). It was also contended that even though a prayer was made before the court below to have the specimen signature taken by the court sent for expert opinion for comparison, that was not allowed and the act of the trial court in comparing the thumb impression by itself is not justified or warranted in law. Learned counsel went on to point out that the courts below have erred both on facts and in law in negativing the claim of the defendants.
8. Since notice had been issued on the delay
petition, respondent entered appearance. Learned counsel for
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the respondent went on to point out that the claim now made that there is no specific denial of the execution of the gift deed, namely Ext.B1, is without any basis. Learned counsel made available the copy of the replication filed by the plaintiff to the assertion made in the written statement by the defendants to the effect that plaint item No.2 had been gifted by the plaintiff to her brother Raman Pillai. Learned counsel submits that there is specific denial of execution of Ext.B1 in which case it was incumbent upon the defendants to examine one of the attesting witnesses to prove the due execution of the gift deed. Learned counsel also drew the attention of this Court the fact that at the appellate stage the case was entirely different. There, the case put forward was that Ext.B1 is not a gift deed, but a sale deed. It was rejected by the appellate court. It is also pointed out that the plaintiff had discharged her burden to show that Ext.B1 was not executed by her as the court below has called for the register from the SRO
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concerned and compared the signature with the specimen signature taken by the court below. The trial court found that the thumb impressions considerably differ. Learned counsel went on to point out that as per Section 73 of the Indian Evidence Act, the court is perfectly within its powers to make the comparison and it is not necessary that expert opinion should be obtained. Further, it is pointed out by the learned counsel that even if expert opinion is obtained, the court is not bound by the same and the court can raise its own conclusion.
9. Learned counsel went on to point out that the contention now taken that the trial court after remand has gone far beyond the order of remand is without justification. The remand in question was not for consideration of a specific issue and the direction was for fresh consideration after taking further evidence. The issue in the earlier round before the lower appellate court remained confined to the identity of the
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property covered by the gift deed. The lower appellate court being impressed by the said argument also directed the court below to identify the property covered by Ext.B1 gift deed. According to the learned counsel, both the courts below have considered the issue in considerable detail and had come to the conclusion that the so-called gift deed had not been proved to have been executed by the plaintiff.
10. It must be said that there is considerable force in the submission made by the learned counsel for the respondents. The contention taken that there was no specific denial of the execution of the gift deed is without basis. The replication filed by the plaintiff was made available for perusal. Here, one aspect may be noticed. Learned counsel for the appellant pointed out that there is no provision in the Civil Procedure Code for filing replication and the court below was not justified in receiving replication. The above contention seems unfounded. It has been a well accepted
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practice that whenever the plaintiff has to explain or clarify certain aspects which are made in the written statement, usually the plaintiff files a replication with leave of the court and that forms part of the pleadings.
11. In the replication, it is specifically averred that the gift deed had not been executed by the plaintiff. It was pointed out that the plaintiff had not executed any such document nor had she parted possession of the property. There is specific and clear denial in this regard. In the decision relied on by the learned counsel for the appellants regarding the denial, the facts in that case show that there was only a vague statement saying that the document had not been executed by the person concerned. In the case on hand, paragraph 1 of the replication relates to the execution of the gift deed. It was specifically denied that it was executed by the plaintiff.
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12. Going by Section 68 of the Indian Evidence Act, proviso to Section 68 has no application unless the execution of the document is denied. If execution is denied, it is incumbent on the person who wants to prove the transaction to call upon one of the attesting witnesses to give evidence regarding the execution of the Will. Both the courts below have noticed that inspite of specific denial of execution of the gift deed, no attempt was made from the side of the defendants to examine any one of the attesting witnesses. As already noticed, the contention that there is no specific denial cannot be countenanced. If that be so, the omission proves fatal.
13. What then needs to be considered is the grievance regarding the trial court traveling beyond the scope of remand. That contention too has no basis. It is difficult to understand the relevancy of identity of the property in this case for the simple reason that the definite stand taken by the
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plaintiff is that she had not executed the gift deed or she had not parted with the property obtained from her mother as per the settlement deed. Whatever that be, there was a remand for that purpose and in that order it was specifically directed that the matter will have to be considered afresh and dispose of the suit on merits. Both parties were given liberty to adduce further evidence. It is significant to notice that before the lower appellate court an amendment application had been moved to incorporate the plea of adverse possession and limitation which was allowed. That plea was also gone into by the court below and found that there is no clear pleading to that effect much less any evidence in that regard. It could not be said that the trial court after remand has travelled beyond the scope of remand. It is seen that the remand was an open remand where all the issues were left to be decided afresh.
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14. The question as to whether there is specific denial of the execution of the gift deed, the application of Section 68 of the Indian Evidence Act etc., are decided by the courts below based on the evidence on record and no question of law arises for consideration on the point. There is nothing to show that the findings arrived at by the courts below are perverse or contrary to the evidence on record and the pleadings in the case. Being concurrent findings of fact, there is no reason shown as to why interference should be made in exercise of the appellate jurisdiction under Section 100 of the Code of Civil Procedure.
This appeal is without merits and accordingly. it is
dismissed.
## P. BHAVADASAN, JUDGE
sb.
