E. Gopalan Nair and others v. E. Raghavan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933** **SA.No. 981 of 2000(A)** **-------------------------------** **AS.22/1998 OF SUB COURT, HOSDURG OS.47/1996 OF MUNSIFF COURT, HOSDURG** **....................** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **---------------------------------------------------------------** **1. E. GOPALAN NAIR, AGED 38, S/O.A. KANNAN NAIR, RESIDING AT BENGALAM IN MADIKAL VILLAGE OF HOSDURG TALUK, P.O. MADIKAI.** **2. KRISHNA KUMAR, AGED 38, CHINDAN NAIR, RESIDING AT PADINHATTAMKOVALL IN NILESHWAR VILLAGE, HOSDURG TALUK, P.O. NILESHWAR.** **3. VIVEKANANDA SAMSKARIKA KENDRAN, REGD. NO.99/90, NILESHWAR, REPRESENTED BY ITS PRESIDENT, NILESHWAR VILLAGE, P.O. NILESHWAR.** **BY ADV. SRI.T.K.VIPINDAS** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **------------------------------------------------------------** **E. RAGHAVAN NAIR, AGED 42, S/O.A. KANNAN NAIR, RESIDING NEAR NILESHWAR BUS STAND, NILESHWAR VILLAGE, HOSDURG TALUK, P.O. NILESHWAR.** ## **BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** ## **SA.No. 981 of 2000(A)** ## **J U D G M E N T** **When the case was taken up for hearing, neither the appellants** **nor the counsel was present. The appeal is accordingly dismissed for default.** ## **03/06/2011. SD/- P.BHAVADASAN, JUDGE** **ORDER ON C.M.P. NOS.2557/2000 & 249/2001 IN S.A. NO.981/2000** ## **DISMISSED** **03/06/2011.** **SD/- P.BHAVADASAN, JUDGE** **//TRUE COPY//** **P.A. TO JUDGE** **rs** ## **P.BHAVADASAN, J.** ## **---------------------------S.A.No. 981 of 2000 --------------------------------Dated this the 15[th ] day of July, 2011** ## **JUDGMENT** The defendants in O.S.No.47 of 1996 before the Munsiff's Court, Hosdurg are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. By Ext.A1 partition deed dated 27.10.1968, Lakshmikutty Amma obtained 28 cents of property along with other items of property. Ext.A1 is the certified copy of the partition deed. As per the B schedule, a plot approximately measuring 28 cents was allotted to Lakshmi Amma. The western portion of the B schedule property measuring 10 cents was later assigned away by Lakshmi Amma to her brother Krishnan Nair. Thereafter, that 10 cent of land was received back by Lakshmi Amma from her brother Krishnan Nair and it was assigned to the plaintiff as per Ext.A2 sale deed dated 08.10.1986. Ever since then plaintiff has been in absolute possession and enjoyment of the property assigned to him. By Ext.B1 dated 25.05.1988, the Lakshmi Amma assigned 9 cents to Kunhi Krishnan Nair. Later by Ext.B2 dated 02.06.1988, Lakshmi **S.A.No. 981 of 2000 2** Amma assigned the balance land in favour of the first defendant. By Ext.B3 dated 19.11.1994 Lakshmi Amma and Gopalan Nair assigned the property covered by Ext.B2 to one Choorikkadan Krishnan Nair. The plaintiff would say that his property is lying well separated from other two items of properties and defendants have no manner of right over the suit property. Since they attempted to trespass into the suit property, he laid the suit. 3. The defendants resisted the suit. They denied the allegations in the plaint. According to them, the description, extent and boundaries of the plaint schedule property shown in the plaint are incorrect. They admitted that the plaintiff had obtained 10 cents of property by virtue of Ext.A2 dated 08.10.1986. They contended that Lakshmi Amma had three cents of plot lying between properties covered by Ext.A2 and Ext.B2. It was subsequently gifted away by Lakshmi Amma to the first defendant as per Ext.B5 gift deed dated 16.12.1994. Later, the third defendant purchased the property from the first defendant as per Ext.B6. The plaintiff has no manner of right over that three cents of property covered by Exts.B5 and B6. On the basis **S.A.No. 981 of 2000 3** of these contentions, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 and 2 and document marked as Exts.A1 to A3 series from the side of the plaintiff. The defendants examined DWs 1 to 3 and had Exts.B1 to B7 marked. Exts.C1 to C4 are the commissioner's reports and plans. On an evaluation of the evidence in the case, the trial court came to the conclusion that the claim of the defendants that three cents was lying sandwiched between the properties assigned to the plaintiff and to Choorikkadan Krishnan Nair was incorrect and that there was no property to be assigned to the first defendant by Lakshmi Amma after the execution of Exts.A2, B1 and B2. Accordingly, the suit was decreed. 5. The defendants carried the matter in appeal as A.S.No.22/1998 before the Sub Court, Hosdurg. After an independent evaluation of the evidence in the case, the lower appellate court came to the conclusion that the trial court was right in its conclusion and dismissed the appeal. **S.A.No. 981 of 2000 4** ## 6. Notice is seen issued on the following substantial questions of law: - _a. Has not the Lower Appellate Court acted erroneously and with material irregularity in abdictating its jurisdiction under Section 96 of the Code of Civil Procedure Code in not reappreciating the evidence in the case and in examining whether the findings of the trial court are sustainable in law or on facts ?_ - _b. Has not the lower appellate court failed to conclude that description of boundaries cannot be allowed to prevail if the intention of the parties was only to convey the extent mentioned in the document and is not the decision of lower appellate court vitiated by non-advertance to vital admissions in the evidence of the respondent admitting the extent conveyed by Ext.A2 ?_ - _c. Has not the lower appellate court failed to consider the legal implication of attestation of Ext.B4 by respondent and has not the lower appellate court failed to hold that the respondent is estopped from challenging the recitals contained in Ext.B4 ?_ - _d. Has not the Lower Appellate Court passed a decree which is highly ambiguous and unsustainable in law ?_ 7. The learned counsel appearing for the appellants contended that the observations of the courts below that even though the plaintiff is an attestor to Ext.B3 document, he is not bound to know the recitals in the deed cannot be accepted. The learned counsel emphasized that by virtue of that document the ## **S.A.No. 981 of 2000 5** right of the plaintiff was affected and it is inconceivable that he would not have known about the contents when he attested the document. In support of this contention, the learned counsel relied on the decision reported in **Kesavan Mathevan v. Govindan Soman(1966 KLT 1109)** . 8. It is also contended that in all cases of identification of properties, boundaries shall prevail is not invariable rule. In support of that contention, the learned counsel relied on the decision reported in **Krishnamurthi Iyer v. Janaki** ( **1957 KLT 886).** 9. According to the learned counsel, all that the plaintiff was entitled as per Ext.A2 was an extent of 10 cents of property and it is clear from the commissioner's report that he now holds more than the extent of property covered by Ext.A2. In fact he is in possession of 14.28 cents. Being an attestor to Ext.B3, he cannot be heard to contend that 3 cents, which was assigned as per Ext.B5, was not available. These vital aspects have been omitted to be noticed by both the courts below and that has resulted in miscarriage of justice. **S.A.No. 981 of 2000 6** 10. The learned counsel appearing for the respondent on the other hand contended that both the courts below have meticulously analysed the evidence on record and have come to the conclusion that there was no property available to be assigned after executing Exts.A2, B1 and B2. The courts below have referred to the boundaries of the various properties assigned by Lakshmi Amma to various persons and have come to the conclusion that three cents, which is the subject matter of assignment under Exts.B5 and B6, is a non existing land. 11. The learned counsel pointed out that probably on measurement, when it was found that the plaintiff has got excess land in his possession, attempt is being made by the defendants to usurp that property. The learned counsel went on to point out that the findings of the courts below are based on an appreciation of the evidence in the case and are findings of fact. No substantial questions of law arises for consideration in the second appeal and it is only to be dismissed. 12. It is not in dispute that Krishnan Nair and Lakshmi Amma had obtained properties from their Tharavadu as per **S.A.No. 981 of 2000 7** partition deed of 1932. By virtue of Ext.A1 dated 27.10.1968 Krishnan Nair and Lakshmi Amma partitioned the property obtained by them and A schedule was set apart to Krishnan Nair and B schedule was set apart to Lakshmi Amma. The property set apart to Lakshmi Amma, contained a plot of 28 cents and other properties. 13. Out of the 28 cents so received, Lakshmi Amma assigned 10 cents to Krishnan Nair, who later on reassigned the same to Lakshmi Amma. Thereafter, by Ext.A2 dated 08.10.1986 Lakshmi Amma assigned 10 cents of property to the plaintiff. By Ext.B1 dated 25.05.1988 Lakshmi Amma assigned 9 cents on the southern side of the total extent of 28 cents to Kunhi Krishnan Nair. By Ext.B2 dated 02.06.1988 she assigned the balance nine cents to the first defendant, reserving life interest in the property. That was on the northern side of the plot assigned as per Ext.B1. By Ext.B3 dated 19.11.1994 Lakshmi Amma and Gopalan Nair assigned the plot covered by Ext.A2 to one Choorikadan Krishnan Nair. **S.A.No. 981 of 2000 8** 14. So, much of the facts are admitted. The dispute begins from Ext.B3 onwards. 15. The plaintiff is an attestor to Ext.B3 document. That was an assignment deed, as already noticed, executed by Lakshmi Amma and Gopalan Nair in favour of Choorikadan Krishnan Nair. ## 16. In the decision reported in **Narayana Aiyar v. Rama Aiyar (ILR 1915 Vol.(38) Madras 396)** it was held as follows: _“On the whole, I see no sufficient reason to recede from the opinion I expressed in Kandaswamy Pillai V. Rangaswami Nainar(4), that a presumption is raised, when an adult man of full mental capacity attests a deed and when such a man has admittedly a tangible interest in the property affected by the deed, that his attestation has been taken as a proof of his consent to and knowledge of the correctness of the recitals in the deed and it lies upon the person, who contends that such an attestor did not know all the recitals in the deed and did not consent to the alienation made by the deed, to prove the contrary._ _Kandaswamy Pillai V. Rangaswami Nainar(4), it is said “that, having regard to the ordinary course of conduct of Indians in this Presidency, attestation by a person who has or claims any interest in the property covered by the document must be treated prima facie as a representation by him that the title and other facts relating to title, recited in the document, are true and will not be disputed by him as against the obligee under the document.”_ ## 17. In the decision reported in **Kesavan Mathevan's** case(supra) it was held as follows: **S.A.No. 981 of 2000 9** “ _True attestation need not always connote knowledge of contents of the deed; but context of a particular case may show that an attestation was with knowledge of its contents or in token of acceptance or assurance of the recitals therein. It may then establish an agreement.”_ 18. Before going into further details, a few facts may be noticed. It will be useful at this juncture to refer to Ext.C3 plan prepared by the commissioner. The commissioner has identified the entire 28 cents as A.H.J.I.K.L.M.D. 19. The plot assigned to the plaintiff as per Ext.A2 is identified as A.H.I.N.D.A. 20. The disputed portion is identified as B3 plot in Ext.C3 plan. It is this plot that is subject matter of assignment as per Exts.B5 and B6. Defendants would contend as per Ext.A2 only plot B2 shown in Ext.C3 was assigned to the plaintiff and he has no right over B3 plot. 21. On the other hand, the plaintiff would contend that after the assignments covered by Exts.A2, B1 and B2, there was no extent of property left with Lakshmi Amma to be assigned and the recital in Ext.B3 showing as if Lakshmi Amma had property left behind after three assignments is ill motivated to deprive the **S.A.No. 981 of 2000 10** plaintiff of a portion of the property enjoyed by him. 22. It must be noticed that the appellants base their claim on the boundaries shown in Ext.B3, a document of 1994, an assignment deed executed by Lakshmi Amma and Gopalan Nair in favour of Choorikadan Krishnan Nair. The western boundary is shown as “ലക���യമ വക സല�.” The southern boundary is shown as “ഒന�� നമറ�ക�ര�യ�ട� ബ�ക�യ�ള പറമ�ലലക�� ഒന�� നമറ�ക�ര�യ�ട� �കന ര�ഘവനന�യര�ട� പറമ�ലലക � ക���യ �ള 4 ല��ഗ�"� വ#ത�യ �ള വഴ�” 23. Thus, the western boundary in Ext.B3 is the trump card of the defendants. They say that plaintiff being an attestor to the document must be credited with the knowledge that Lakshmi Amma was retaining three cents of land shown as B3 plot in Ext.C3 plan. Further, it is also contended that as per Ext.A2 document, the extent assigned to the plaintiff was only 10 cents. 24. Though the argument may look formidable, on a closer scrutiny it can be found without any basis or foundation. It is true that the plaintiff is an attestor to Ext.B3 document by which Gopalan Nair and Lakshmi Amma assigned the property to **S.A.No. 981 of 2000 11** Choorikadan Krishnan Nair. But one must remember that what was assigned as per Ext.B3 was the property covered by Ext.B2 by which Gopalan Nair obtained property and Lakshmi Amma retained the life interest. It is useful to refer to that document in detail. Ext.B2 document says that out of the 28 cents obtained by her, she had assigned 10 cents to Krishnan Nair, who later reassigned the same to her and thereafter by Ext.A2 document dated 08.10.1986, she had assigned 10 cents to the plaintiff. Then the document says that 10 cents assigned to the plaintiff is on the western side of the entire 28 cents of property. Then it goes on to say that 9 cents assigned to Kunhi Krishnan Nair, is on the southern side of the 28 cents. What is significant in the context is the recital regarding the property that was being assigned under Ext.B2. It is very clearly stated that as per Ext.B2 what was assigned was the balance 9 cents left behind after the assignment covered by Exts.A2 and B1. A reading of Ext.B1 leaves one in no doubt that Lakshmi Amma was fully aware of the fact that after the assignment covered by Exts.A2 and B1 what was left was the property covered by Ext.B2. **S.A.No. 981 of 2000 12** 25. One may also have look at the boundaries in the various documents. In Ext.A2, the eastern boundary is shown as “എട' വക ബ�ക�യ�ള പറന�പ�� സലവ�� **,** ക�ഴക� എട' വക ബ�ക� പറന�പ�� വ#���. **T** hereby indicating that the property on the eastern side of the property assigned to the plaintiff belongs to Lakshmi Amma. Then comes Ext.B1 dated 25.05.1988 whereby Lakshmi Amma assigned 9 cents to Kunhi Krishnan Nair. In Ext.B1 the western boundary is shown as “എട' "ല(�ദരന ര�ഘവന ന�യര വക പറന�പ�.” 26. Now one may come to Ext.B2, the western boundary is shown as “എട' "ല(�ദരന ക�ഞ�ക,ഷ�.ന ന�യരക� ടക���ത പറന�പ�.” 27. What is more significant is the southern boundary in Ext.B2, which reads as follows “ഒന�� നന�പറ�ക�ര�യ�ട� വക സല�” 28. Going by the boundaries in Ext.B2, it is clear that by the execution of Ext.B2, the entire 28 cents are exhausted and there was no balance extent of property left behind with Lakshmi Amma 29. It is true that in Ext.B3, which is an assignment deed by Gopalan Nair and Lakshmi Amma in favuor of Choorikadan Krishnan Nair, the eastern and southern boundaries are shown **S.A.No. 981 of 2000 13** as extracted earlier. 30. It is those recitals in Ext.B3 which are now taken aid of to contend that a small piece of land having an extent of three cents is left behind between the property assigned to the plaintiff and first defendant. 31. Now one has to refer to other items of evidence in the case to ascertain whether the claim of defendants is true. One may refer to the assignment deed executed by Kunhi Krishnan Nair in favour of Thampan, ie, B4 dated 26.08.1992. It is significant to notice that the said document is in prior point of time to Ext.B3, executed by Gopalan Nair and Lakshmi Amma in favour of Choorikadan Krishnan Nair. The northern boundary of the said property covered by Ext.B4 is referred to as “ലഗ�പ�ലട' പറന�പ�.” It is significant to note that if as a matter of fact three cents as claimed as per Ext.B3 and Ext.B5 was available at that point of time, then the northern boundary of property covered by Ext.B4 should have been shown as “ലക���യമ വക കകവശ പറന�പ��, ലഗ�പ�ലന ന�യര വക കകവശ� പറന�പ��.” The recital now available as per Ext.B4 shows that no extent of property was left with Lakshmi **S.A.No. 981 of 2000 14** Amma after the execution of Exts.A2, B1 and B2. 32. Coming to the commissioner's report, the property assigned to plaintiff under Ext.A2 has been identified as A.H.I.J.K.N and that is shown as plot B2. It is true that has an extent of 14.28 cents. It is therefore, contended that what was assigned as per Ext.A2 was only 10 cents and plaintiff is entitled to only 10 cents of property. 33. One has to remember that the suit is one for injunction simplicitor. Main criteria is the actual physical possession of the property. The commissioner's report shows that Ext.A2 document, on the basis of which the plaintiff laid claim, is comprised within A B I H I J K M N O of Ext.C3 and has well secured compound walls and lies separately from the rest of the properties. 34. The commissioner's report is very clear that property lying within A H I J K L M N O is a compact plot with compound wall on all sides. It shows that the said property is being enjoyed by the plaintiff and is in his possession. When A2 property is identified with reference to its boundaries and taken along with ## **S.A.No. 981 of 2000 15** boundaries of properties covered by Ext.B1 and Ext.B2, the position becomes very clear. On a scrutiny of the documents, it is virtually impossible that Lakshmi Amma could have retained three cents located as B3 plot in Ext.C3(a) plan to be dealt with under Ext.B5 and Ext.B6. The courts below have found that the claim that Lakshmi Amma retained three cents after Exts.A1, B1 and B2 deeds cannot be true. The findings have been arrived at on an appreciation of the evidence in this case and are findings of facts. No substantial question of law arises for consideration. The Second Appeal stands dismissed with no order as to costs. ## **P.BHAVADASAN, JUDGE.** ln