George, s/o Eliza Nadar v. Dasamma Jnanamma and Jnanam Sheila

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 7TH DAY OF MARCH 2012/17TH PHALGUNA 1933 SA.No. 627 of 2000 (G) ---------------------AS.51/1997 of SUB COUR, NEYYATTINKARA OS.467/1991 of PRL.MUNSIFF COURT, NEYYATTINKARA APPELLANT/ADDL.2ND APPELLANT/ADDL.PLAINTIFF: ---------------------------------------------------------- GEORGE, S/O.ELIZA NADAR, THENGUVILA PUTHEN VEEDU, _**(DIED)***_ KUNNATHUKAL DESOM, KUNNATHUKAL VILLAGE, THIRUVANANTHAPURAM. *ADDL.2ND APPELLANT: SATHYAKALA D/O.GEORGE RESIDING AT THENGUVILA PUTHEN VEEDU, KUNNATHUKAL, NEYYATTINKARA, THIRUVANANTHAPURAM. *ADDL.3RD APPELLANT: SATHYA KUMAR D/O.GEORGE RESIDING AT -DO-DO- - ADDL.APPELLANTS 2 & 3 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED SOLE APPELLANT AS PER ORDER DTD. 7.6.2011 IN C.M.P.NO.1167/2003. BY ADV. SRI.L.MOHANAN ## RESPONDENTS/RESPONDENTS/DEFENDANTS 2 & 3: --------------------------------------------------------- 1. DASAMMA JNANAMMA, RESIDING AT ROADARIKATHY PUTHEN VEEDU, VENKODE, VELLARADA DESOM, KUNNATHUKAL VILLAGE. 2. JNANAM SHEILA, RESIDING AT -DO-DO- BY ADV.SRI.G.S.REGHUNATH FOR R1 & R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## SA.No. 627 of 2000 (G) ## ORDER ON C.M.P.NO.1685/2002 DISMISSED. 7.3.2012 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. ## **HARUN-UL-RASHID, J. -----------------------S.A.No.627 Of 2000** ## **---------------------Dated this the 7[th] day of March, 2012.** ## **J U D G M E N T** The substantial questions of law formulated in the appeal are as follows: _(1) Is it not illegal to discard the evidence which has a direct bearing on the issue while dismissing I.A.No.1521/1995 as per judgment after stating that the commissioner and surveyor were not examined._ _(2) Is it not illegal to dismiss the I.A by a statement in the judgment._ _(3) Is it not illegal to deny the title of the plaintiff due to the mere fact that an intervening document was not produced._ _(4) Is it not illegal to deny the legal presumption to the ancient document of Ext.A2._ _(5) Is it not illegal to compare a plan which is not in evidence with that of the commissioner's plan and ascertaining the identity of the property._ _(6) When the commissioner's report and plan is defective is it not liable to be set aside and plaintiff be given a chance_ . 2. The additional 2[nd] plaintiff is the appellant. The appeal is directed against the judgment and decree dated 15.3.2000 in **::2::** ## **S.A.No.627 Of 2000** A.S.No.51/1997 on the file of the Sub Court, Neyyattinkara, arising from O.S.No.467/1991 on the file of the Munsiff Court, Neyyattinkara. Suit was filed for declaration and injunction. The trial court held that the plaintiff is not entitled to the relief of declaration of title and possession over the plaint schedule property. The trial court granted the limited relief of injunction restraining the defendants from disturbing the plaintiff's right of life enjoyment in the plaint B schedule property. The plaintiff preferred A.S.No.51/1997. During the pendency of the appeal, the plaintiff died and 1[st] defendant who is her son was impleaded as additional 2[nd] appellant. The appellate court dismissed the appeal and confirmed the findings of the trial court. The parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 3. The parties to the suit are close relatives. Plaintiff is the mother, 1[st] defendant her son, 2[nd] defendant is the wife of Jose, who is the deceased son of the plaintiff. The additional 3[rd] defendant is the daughter of the 2[nd] defendant. Plaint 'A' schedule property is 5.94 acres of land. Plaint 'B' schedule is **::3::** ## **S.A.No.627 Of 2000** 64.5 cents forming part of plaint 'A' schedule. The dispute raised is with respect to the title and possession of plaint 'B' schedule property. The plaintiff's case is that she got assignment of mortgage right over plaint 'B' schedule property as per registered assignment deed No.3311/1118 (ME), marked as Ext.A2. The plaintiff claimed absolute title over plaint 'B' schedule property alleging that redemption of mortgage in respect of plaint 'B' schedule property has been barred by limitation. It is averred in the plaint that plaint 'B' schedule property was having well defined boundaries and the defendants are having property on the west of plaint 'B' schedule property. The present suit was filed originally for injunction simplicitor, but, subsequently, amended as a suit for declaration of title and possession. 4. The 1[st] defendant filed a written statement supporting the plaintiff. Subsequently, the 1[st] defendant was removed from the party array as per the order in I.A.No.1108/1994. 5. The 2[nd] defendant filed written statement and contested the suit. The 2[nd] defendant inter alia contended that the plaint description is not correct, that there is no property as **::4::** ## **S.A.No.627 Of 2000** described as plaint 'B' schedule, denied the plaintiff's title and possession over plaint 'B' schedule property. The plaintiff, 1[st] defendant and deceased son of the plaintiff, Jose together executed Ext.B1 partition deed dated 20.11.1970 (marked as Ext.B1). In the partition, the entire plaint 'A' schedule property was divided between the parties, that 2.91½ acres of land in Sy.No.131/2 was allotted to Jose, who is the deceased husband of the 2[nd] defendant. The only right reserved for the plaintiff is the right of enjoyment of 50 cents and the right of residence in the building situated in 50 cents. The said 50 cents form part of 2.91½ acres of land allotted to Jose. Subsequently, 12 cents out of it was sold in favour of Sulochana, who is the daughter of the plaintiff, as per sale deed dated 6.6.1977, marked as Ext.B3, wherein the plaintiff was a party. It is also contended that after the death of Jose, his right over the property devolved upon his wife and minor daughter, who are defendants 2 & 3 respectively. Thus, the 2[nd] defendant contended that on the death of Jose, his right over 2.91½ acres of land devolved on defendants 2 & 3 and they are in possession and enjoyment thereof subject to the life **::5::** ## **S.A.No.627 Of 2000** interest of the plaintiff. It is pointed out that plaint 'B' schedule property form part of 2.91½ acres of land. The additional 3[rd] defendant was subsequently impleaded. She filed a written statement supporting the contentions of the 2[nd] defendant. 6. The evidence consists of deposition of PW1, Exts.A1 to A8, marked on the side of the plaintiff, and, Exts.B1 to B8, marked on the side of the defendant. 7. The plaintiff filed I.A.No.1521/1995 to set aside the commission report and plan. In the said I.A, the commissioner and the surveyor were examined. 8. The original plaintiff claimed title and possession over an extent of 64 cents of land comprised in Sy.No.161/2 and 167/15. According to the plaintiff, plaint 'B' schedule property is a portion of plaint 'A' schedule property. The plaintiff claimed title and possession as per Ext.A2 mortgage assignment deed of 1118 ME. It is the plaintiff's case that the right of redemption on the mortgage has been barred by limitation and thus, she became the absolute owner of the property. The identity of plaint B schedule property was disputed by the contesting **::6::** ## **S.A.No.627 Of 2000** defendants. The courts below noticed that in spite of the fact that the identity of plaint 'B' schedule property was under serious challenge, the plaintiff not preferred to prove the correct identity or to prove the identity of the disputed property. Both courts noticed the fact that the advocate commissioner appointed by the trial court submitted the report and plan. Subsequently, the plaintiff filed I.A.No.1521/1995 to set aside the commission report and plan. In I.A.No.1521/1995, the commissioner and surveyor were examined. The appellate court after perusing the records found that even though I.A.No.1521/1995 is seen posted for hearing for several dates, it appears, due to the fact that the petitioner/plaintiff was not ready for hearing, the learned Munsiff was forced to post the application along with the suit. It is also noticed by the appellate court that subsequently, the plaintiff did not pursue the said application. The courts below also observed that when the plaintiff was examined as PW1, she has no case that identification of the property in the commission report and plan were incorrect. The appellate court also observed that it is significant to note that the plaintiff preferred not to take a **::7::** ## **S.A.No.627 Of 2000** definite stand that plaint 'B' schedule property has been properly identified by the advocate commissioner. 9. The learned counsel for the appellant contended that I.A.No.1521/1995 was filed to set aside the commission report and plan, that in support of the said contention the commissioner and surveyor were examined before the court below, that the court below failed to consider the case of the plaintiff regarding the identity of plaint 'B' schedule property. In fact, the appellate court considered the case of the plaintiff and after perusing the records found that though the plaintiff examined the commissioner and surveyor, plaintiff failed to prosecute I.A.No.1521/1995 and therefore, the same was happened to be dismissed vide the judgment of the trial court and not by a separate order. Since the application was also considered along with the trial of the suit it is observed by the appellate court that the said I.A. was not separately considered. The lower appellate court also considered I.A.No.1521/1995 on merits. The court held that no valid grounds were established by the plaintiff to set aside the commission report and plan. **::8::** ## **S.A.No.627 Of 2000** 10. In the commissioner's plan, plaint 'A' schedule property was measured and identified as plot 'ABCDEFGHI'. The plot allotted to deceased Jose in Ext.B1 partition deed has been located as plot 'ABCDBGHI'. Th extent of property allotted to deceased Jose in Ext.B1 partition deed is 2.91½ acres. On measurement it was found that the extent is 2 acres 89 cents and 780 Sq.links. Plaint 'B' schedule property has also been located by the commissioner. The extent of plaint 'B' schedule property is reported as 50 cents and 50 Sq.links. The appellate court also noticed that the plaintiff failed to mark the commission report and plan in the suit. The court also noticed the fact that when the plaintiff was examined as PW1, she was not having any case that identification of the property by the advocate commissioner is not correct. 11. Coming to the question of the rights of the plaintiff, she claimed title and possession as per Ext.A2 mortgage assignment deed. Ext.B1 partition deed of the year 1970 reveals that an extent of 2.91½ acres of land was set apart to the share of Jose, who is the pre-deceased son of the plaintiff. Deceased **::9::** ## **S.A.No.627 Of 2000** Jose is the husband of the 2[nd] defendant and father of the 3[rd] defendant. The plaintiff was a party to Ext.B1 partition deed. Exts.A7 dated 18.1.1118 M.E and A8 dated 9.4.1119 are the sale deeds in respect of the plaint schedule property obtained by the plaintiff's husband. The plaintiff is claiming right as a mortgagee over a portion of the property obtained by the plaintiff's husband. Plaintiff's case is that plaint 'B' schedule property form part of plaint 'A' schedule property. The commissioner reported that plaint 'B' schedule property is a portion of 2.91½ acres of land allotted to the deceased Jose. It is evident from Ext.B1 partition deed that the plaintiff was reserved with the right of residence in the building situated in an extent of 50 cents included in 2.91½ acres of land. Ext.B1 further shows that life estate was reserved for the plaintiff in respect of 50 cents of land out of 2.91½ acres of land. Ext.B3 sale deed shows that the plaintiff and deceased Jose together executed the sale deed in 1977, in respect of 12 cents out of 2.91½ acres of land, in favour of Sulochana, who is none other than the daughter of the plaintiff. It is not disputed that the right of Jose, on his death, devolved on defendants 2 & **::10::** ## **S.A.No.627 Of 2000** 3. Ext.B4 and B5 are the copies of the judgment in the prior suit and appeal. A perusal of Exts.B4 & B5 show that even though the plaintiff had set up a will in order to exclude defendants 2 & 3 from inheriting the property of Jose, it has been found that the plaintiff had failed to prove the will alleged to have been executed by deceased Jose. O.S.No.1/1983 filed for probating the will was dismissed and was confirmed in appeal. The courts held that the will deed produced by the plaintiff is not genuine. 12. In the plaint, the plaintiff suppressed the execution of Ext.B1 partition deed. In the written statement, the 2[nd] defendant claimed right on the basis of Ext.B1 partition deed, allotment of 2.91½ acres of land to Jose and on his death, the property devolved on her and her daughter. Acting on Ext.B1 partition deed, the deceased Jose and plaintiff executed Ext.B3 sale deed in favour of Sulochana. The trial court as well as the appellate court came to the conclusion that Ext.B1 confers title and possession over 2.91½ acres of land which is inclusive of plaint 'B' schedule property in favour of deceased Jose and consequently, on his death to defendants 2 & 3. The appellate **::11::** ## **S.A.No.627 Of 2000** court noticed the fact that the life interest of the plaintiff was protected by the trial court by granting an injunction restraining the defendants from disturbing the plaintiff's right of life enjoyment in the plaint schedule property. Apart from producing Ext.A2 deed of assignment, nothing has been brought out in evidence to prove that the plaintiff was in possession and enjoyment of the property which virtue of Ext.A2 assignment deed. At the same time, execution of Ext.B1 partition deed to which the plaintiff is also a party, shows that the property mentioned in Ext.A2 assignment deed is also included in the partition deed and the property was divided among the sharers. The original plaintiff had passed away during the pendency of the appeal and therefore, her life interest in plaint 'B' schedule property has also come to an end. Ext.A3 tax receipt dated 12.4.1989 only shows that the plaintiff remitted the tax in the name of deceased Jose. Exts.A3 (a) & (b) are receipts in the name of the plaintiff. Receipts are of the year 1993 & 1994. Those remittance were made during the pendency of the suit. The said documents also do not go to show that the plaintiff has **::12::** ## **S.A.No.627 Of 2000** got title in the property in dispute. In these circumstances, the trial court as well as the appellate court held that the plaintiff is not entitled to the relief claimed in the suit, finding that the plaintiff has failed to prove title and possession over plaint 'B' schedule property except her life interest over the property. The plaintiff suppressed the material facts. Ext.B1 partition deed executed by the parties including the plaintiff was brought to light only by the contesting defendants. Execution of Ext.B3 sale deed was also suppressed. ## 13. The Apex Court in _**S.P.Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs and others**_ (AIR 1994 SC 853) held that if the plaintiff withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. In paragraph 8 the Apex Court held as follows: “ _Non production and even non-mentioning of the release deed at the trial tantamounts to playing fraud on the court. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation._ **::13::** ## **S.A.No.627 Of 2000** _If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party”_ . 14. The courts below examined the contentions of the parties in the light of oral and documentary evidence. The court on facts found that the plaintiff has failed to establish title and possession over plaint 'B' schedule property. In the facts and circumstances discussed above, this Court is of the view that the appellant has not made out any ground for interference. No question of law much less any substantial question of law arises for consideration in this second appeal. In the result, the appeal fails and accordingly, dismissed. No order as to costs. **HARUN-UL-RASHID, Judge.** bkn/-