Iqbal v St. George Church, Karthedom and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 15[TH] DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944** ## **RSA NO. 329 OF 2022** **AGAINST THE ORDER/JUDGMENT IN AS 64/2018 OF SUB COURT,KOCHI** ## **OS 169/2015 OF MUNSIFF COURT, KOCHI** ## **APPELLANT/1ST RESPONDENT/1ST DEFENDANT:** **IQBAL AGED 56 YEARS S/O. BAVA, MULLAPPILLY PARAMBIL HOUSE, ELAMKUNNAPUZHA DESOM, ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK, 682 511. BY ADVS. M.P.RAMNATH BEPIN PAUL S.SANDHYA SHALU VARGHESE K.S AKSHAY MOHAN GENTLE C.D. K.J.SEBASTIAN P.RAJESH (KOTTAKKAL) M.VARGHESE VARGHESE S.DEEPAK ANTONY THARIAN UMA R.KAMATH** ## **RESPONDENTS/APPELLANTS & RESPONDENTS 2 TO 5/PLAINTIFFS 1 TO 4 AND DEFENDANTS** ## **2 TO 5:** |**:**|| |---|---| |**1**|**ST.GEORGE CHRUCH,**| ||**KARTHEDOM,**| ||**REPRESENTED BY ITS VICAR ANTONY KOPANDUSSERY, S/O. JOSEPH,**| ||**RESIDING AT THE BUNGLOW OF THE ST. GEORGE CHURCH, KARTHEDOM,**| ||**MALIPURAM 682 511. ERNAKULAM DISTRICT.**| |**2**|**RT REV. DR JOSEPH KARIKKASSERY,**| ||**AGED 74 YEARS**| ||**S/O. KARIKKASSERY ROCKY, BISHOP OF KOTTAPURAM DIOCESE, KOTTAPPURAM**| ||**PIN - 680 667, THRISSUR DISTRICT, REPRESENTED BY HIS POWER HOLDER**| ||**FR ANTONY KOPANDUSSERY.**| |**3**|**ALFRED D.CUNHA,**| ||**AGED 71 YEARS**| ||**TRUSTEE OF THE FIRST PLAINTIFF, PANDARAPARAMBIL, MALIPURAM,**| ||**ELAMKUNNAPUZHA VILLAGE, ERNAKULAM DISTRICT PIN - 682511.**| |**4**|**JOY P.P.,**| ||**AGED 69 YEARS**| ||**S/O. PAILY, TRUSTEE OF THE 1ST PLAINTIFF, PALLIPARRAMBIL,**| ||**MALIPURAM, ELAMKUNNAPUZHA, ERNAKULAM DISTRICT.. PIN - 682511**| |**5**|**MADHU,**| ||**AGED ABOUT 52 YEARS**| ||**S/O. ASHOKAN, KOCHIKKAPARAMBIL, MALIPURAM, ELAMKUNNAPUZHA VILLAGE,**| ||**ERNAKULAM DISTRICT, PIN – 682511.**| R.S.A.No.329/2022 **2** |**6**|**DILEEP KUMAR,**| |---|---| ||**AGED 62 YEARS**| ||**S/O. ASHOKAN, KOCHIKKAPARAMBIL, MALIPURAM DESOM, ELAMKUNNAPUZHA**| ||**VILLAGE, PRESIDENT, CITU TAXI CAR DRIVERS UNION, ERNAKULAM**| ||**DISTRICT. PIN - 682511.**| |**7**|**BABU,**| ||**AGED 61 YEARS**| ||**S/O. ANANTHAN, KAITHARA HOUSE, NJARACKAL P.O., ELAMKUNNAPUZHA**| ||**PANCHAYATH, MALIPURAM P.O, ERNAKULAM DISTRICT. PIN - 682511**| |**8**|**THE SECRETARY,**| ||**ELAMKUNNAPUZHA PANCHAYATH, MALIPURAM P.O, ERNAKULAM DISTRICT.**| ||**PIN - 682511.**| ||**BY ADVS.**| ||**JOHNSON ABRAHAM**| ||**NELSON ABRAHAM**| **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10.08.2022,** **THE COURT ON 15.09.2022 DELIVERED THE FOLLOWING:** R.S.A.No.329/2022 **3** ## **JUDGMENT** The Regular Second Appeal has been directed against the judgment and decree passed in A.S.No.64/2018 on the file of Subordinate Judge's Court, Kochi, which arose out of the judgment and decree in O.S.No.169/2015 on the file of Principal Munsiff's Court, Kochi. 2. Parties would hereinafter be referred as per their status before the trial court. 3. The appellant is the first defendant. The suit was one for fixation of boundary, recovery of possession as well permanent prohibitory injunction and mandatory injunction. First plaintiff is the Church who is the owner in possession of the plaint schedule property. The church property is under the administration of the 2[nd] plaintiff. The 2[nd] plaintiff, the Bishop of Kottappuram diocese, has given power of attorney to the Vicar of the first plaintiff church to file the suit. By virtue of Settlement Deed No.22/2007 of SRO Narakkal, one Joseph Rajan, a R.S.A.No.329/2022 **4** parishioner, settled the plaint schedule property having an extent of 2.075 cents comprised in survey No.443/25 (re-survey No.356/1) in favour of the church. Mutation was effected and the first plaintiff is in possession and enjoyment of the property therefrom. 4. Before 8 months of the institution of the suit, defendants 1 and 2 started conducting the business of fruits and vegetables, erecting stall in the plaint schedule property after committing trespass. While so, the brother of the second defendant, who is the third defendant and his friend 4[th] defendant claiming to be the office bearers of the taxi car drivers union installed two sign boards of 'Taxi Car Drivers Union CITU' in the schedule property. Thereafter, the suit has been filed. 5. Respondents 1 to 4 filed written statement disputing the ownership of first plaintiff over the plaint schedule property for the reason that the executant Joseph Rajan has no right to execute the Settlement Deed No.22/2007. The father of the first defendant had been conducting the fruit shop for about 25 years and for the last 10 years first defendant has been conducting the same. Defendants 3 and 4 are in possession of the schedule R.S.A.No.329/2022 **5** property for more than 30 years and the sign boards were installed on concrete foundation in the year 1991. Nobody objected the same. It is also contended that if all the appellants had any right over the plaint schedule property it is lost by adverse possession and limitation since the respondents have been in continuous, open and hostile possession of the schedule property for more than 35 years. So, according to them, the right of the owners of the property, if any, is barred by limitation. 6. The 5[th] defendant, Elamkunnappuzha Panchayat, remained exparte. 7. PWs 1 to 3 examined and Exts.A1 to A8 marked from the side of the plaintiffs. DWs 1 to 5 examined from the side of the defendants. 8. After trial, the learned Munsiff found against the plea of adverse possession set up by the defendants. However, it has been found that the plaintiffs failed to prove the execution of Ext.A8 Will, the original of which is produced at the time of examination and consequently it was held that the plaintiffs have not established title over the schedule property and accordingly the suit was dismissed. Against which, the plaintiffs filed appeal R.S.A.No.329/2022 **6** before the Subordinate Judge's Court, Kochi and by the impugned judgment the first appellate court found that the execution of the Will has been satisfactorily proved. It is also found that defendants 1 to 4 have no legal right to challenge or raise suspicion over execution of Ext.A7 Will since they are strangers. The first appellate court concurred with the finding of the trial court with respect to the plea of adverse possession set up by the defendants and further found that the plaintiffs proved their title over the plaint schedule property and decreed the suit as prayed for. 9. Aggrieved by the same first defendant alone approaches this Court in second appeal. Caveat has been filed by the respondents/plaintiffs. Lower court records were called for and both sides were heard. 10. The first contention of the learned counsel is with regard to the non-compliance of Section 68 of the Indian Evidence Act, 1872 with regard to the proof of Will. Learned counsel relies on H. Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443 : 1959 KHC 498 ] and also Janaki Narayan Bhoir v. Narayan Namdeo Kadam [AIR 2003 SC 761 : 2003 (2) SCC 91: R.S.A.No.329/2022 **7** 2003 KHC 808 ] in this regard. He would contend that PW2, who was examined from the side of the plaintiffs to prove the Will did not speak about the attestation by other witnesses. According to him, that fact has been correctly discussed by the trial court and first appellate court went wrong in entering a finding to the contra. The finding that the defendants being strangers have no authority to challenge the Will is also seriously challenged by the 1[st] defendant (hereinafter be referred as defendant). He would also contend that plaintiffs claim title through Exts.A2, A6 and A7 (A8). Ext.A6 is the copy of Partition Deed No.910/1951 of SRO, Njarakkal. Ext.A8 is the true copy of the Will No.26/3/89 of SRO Njarakkal dated 01.03.1989 (Ext.A7 is the certified copy) and Ext.A2 is the certified copy of settlement deed No.22/2007 of SRO Njarakkal. He would contend that in Ext.A7 there is mention of 60 cents in Survey No.443 and hence it has to be assumed that as per Ext.A6 the extent of property in survey No.443 is 60 cents. But Ext.A6 simply says 3.85 acres in Survey No.1178, 1137, 1123 and 443 without specifically referring to the extents of properties covered by each survey numbers. So there is no data or material to prove the actual extent of property in survey No.443 and how the commissioner R.S.A.No.329/2022 **8** demarcated the plaint schedule property out of the total extent without measuring the entire property comprised in survey No.443 remains unexplained. So according to the learned counsel the plaint schedule property is not properly identified. He would also contend that the trial court has properly discussed the facts and law and without any reason the first appellate court reversed the judgment and decree passed by the trial court. 11. The learned counsel for the plaintiffs on the other hand would contend that the plaint schedule property having an extent of 2.075 cents is settled in favour of first plaintiff church by a parishioner for the purpose of constructing a chapel and without any bonafides the defendants are raising untenable contentions over the property owned by the church and according to him a very detailed discussion of facts and law have been made by the first appellate court and decree was passed in favour of the plaintiffs and there is no reason whatsoever to interfere with the said finding in the second appeal. He would also contend that there is no substantial question of law emerging for consideration and the first defendant, being a stranger, has no authority to challenge the Will executed in favour of the predecessor of the first plaintiff since none of the R.S.A.No.329/2022 **9** legatees under the Will have ever disputed or challenged the Will which has been executed in the year 1989. He would also contend that a survey commission was taken by the plaintiffs and a commission report and plan was filed and it has been proved in evidence and there is no question regarding identity has been raised before the lower forums and moreover that according to him is a question of fact and hence cannot be raised in second appeal. So, according to the learned counsel for the plaintiffs, there is no merit in the appeal and is only to be dismissed. 12. Plaint schedule property is 2.075 cents comprised in survey No.443/25 (re-survey No.356/1) of Elamkunnappuzha village settled by Joseph Rajan a parishioner in favour of the first plaintiff as per Ext.A2. Ext.A6 is the certified copy of the Partition Deed No.910/1951 of SRO Njarakkal by which the father of the settler obtained the plaint schedule property. 13. Ext.A7 is the Will by which the testator Thomas obtained a large extent of property including the plaint schedule property which is described in item No.26 of Ext.A6 partition deed. An extent of 3.85 acres of land has been allotted to Thomas. As per Ext.A6 item No.26 has been allotted to Thomas, R.S.A.No.329/2022 **10** S/o. Joseph Karikkaseri and properties are comprised in different survey numbers including survey No.443 of Elamkunnappuzha village. So the main contention of the learned counsel for the defendant is that since there is no specific description in Ext.A6 as to how much extent of property is there in each survey number the case of the plaintiffs that out of 60 cents comprised in survey No.443 of Elamkunnappuzha village the plaint schedule property has been settled in favour of the first plaintiff cannot be accepted without proper demarcation of the said tiny extent of property. 14. Firstly, I will deal with the contention of the learned counsel with regard to the proof of execution of Ext.A7 Will. He would contend that the Will has not been proved as contemplated under Section 68 of the Evidence Act and Section 63 of the Indian Succession Act. 15. In Janaki Narayan Bhoir , relied on by the learned counsel for the defendant, it has been held that one of the attesting witnesses examined should be in a position to prove the execution of a Will and it is also held that if one attesting witness can prove the execution of the Will in terms of clause (c) of R.S.A.No.329/2022 **11** Section 63, attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove that there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of will at least by two witnesses for the reason that the execution of the will does not merely means the signing of it by the testator. But it means fulfilling and proof of all the formalities required under Section 63 of the Indian Succession Act. It is also held that where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. 16. According to the learned counsel, PW2 did not speak about the signing of the will by the other witness. In that aspect the learned counsel relied on H. Venkatachala Iyengar , referred above, to contend that a will has to be proved like any other R.S.A.No.329/2022 **12** document except as to the special requirement of attestation prescribed under Section 63 of the Indian Succession Act. 17. Section 68 of the Indian Evidence Act is relevant in this context to be extracted which reads thus: "68. Proof of execution of document required by law to be attested .- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied]. 18. On reading the above, it is crystal clear that a document which is required by law to be attested shall not be used as evidence until at least one attesting witness is examined. Proviso to Section 68 also would make it clear that except in the case of a Will which has been registered in accordance with the provisions of the Indian Registration Act, 1908 it shall not be necessary to call for an attesting witness in proof of the R.S.A.No.329/2022 **13** execution of the document unless its execution by the person by whom its purports to have been executed is specifically denied. So, as far as a Will is concerned, notwithstanding the admission of execution of the document, the propounder of the Will is bound to prove its execution by examining atleast one attesting witness. 19. Law in this regard is well settled and it is relevant in this context to quote Ramesh Verma (D) Thr. LRs v. Lajesh Saxena (D) By LRs & Anr : 2016 ICO 1610 : AIR 2017 SC 494 : (2017) 1 SCC 257 . Paragraphs 13 and 14 of the said judgment is relevant in this context to be extracted which read as follows: “A Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement. 14. In Savithri v. Karthyayani Amma reported as (2007) 11 SCC 621 at page 629, this Court has held as under:- R.S.A.No.329/2022 **14** “A Will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before it can be accepted as genuine.” 20. In Sarada v. Radhamani : 2017 (2) KLT 327 , Division Bench of this Court upon a reference on the question as to whether the statutory mandate that a Will required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if he be alive and subject to the process of Court will apply even while the execution of the Will by the person by whom it purports to have been executed has not specifically denied or expressly admitted. It was answered by holding that even while the R.S.A.No.329/2022 **15** execution of the will by the person by whom it purports to have been executed is specifically denied or expressly admitted, a will required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if he be alive and subject to the process of court. 21. In the above decision Jagdish Chand Sarma v. Narain Singh Saini and Others : 2015 (3) KLT SN 11 (C.No.15) SC : AIR 2015 2149 has been quoted wherein it has been categorically held that the statutory provisions make it incumbent for a document required by law to be attested to have its execution proved by examining at least one of the attesting witnesses, if alive, and is subject to the process of court conducting the proceedings involved and is capable of giving evidence. The rigour is, however, eased in the case of a document also required to be attested but not a Will if the same has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. It has been emphasised that in any view of the matter, the relaxation extended by the proviso is of no avail qua a Will. The proof of a Will to be admissible in R.S.A.No.329/2022 **16** evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through atleast one of the attesting witnesses if alive, and subject to the process of the court concerned and is capable of giving evidence. 22. Relevant paragraph of the decision reported in Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal : (1991) 3 SCC 442 has also been quoted in the above decision which reads as follows: "It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the filed, which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. The scope of the proviso, therefore, it to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real R.S.A.No.329/2022 **17** object of the main enactment, unless the words of the proviso are such that it is its necessary effect." 23. The overriding effect of Section 68 of the Act on Section 58 has also been dealt in Sarada 's case. Paragraph No.16 is relevant in this context which reads as follows: "16. There is a world of difference between the factum of a document akin to the Will being admitted under Section 58 of the Act and proof of due execution of the Will under Section 68 of the Act. The due execution of the Will cannot be proved otherwise than by recourse to Section 68 of the Act and Section 63 of the Indian Succession Act, 1925 as has been held time and again. The general provisions of Section 58 of the Act has obviously to give way to the special provisions of Section 68 of the Act which govern documents required by law to be attested. That some documents are required by law to be attested imply that law gives additional solemnity empowering the executants with rights and obligations thereunder. Section 68 of the Act operates as an exception in relation to documents required by law to be attested and cannot be said to be subject to Section 58 of the Act by any stretch of imagination. No distinction has been drawn by the statutory provision between an ‘admitted Will’ and a ‘disputed Will’ as has been rightly observed by Mr. Justice P. Bhavadasan in Poulose.A.V.’s case (supra). One of the attesting witnesses if he be alive should be called for the purpose of proving its execution whenever a Will is used as evidence and for whatever purpose. 24. Poulose A.V v. Indira M.R and Others : 2010 (3) KLT Suppl.185 (Ker) : ILR 2010 Ker.388 has also been quoted to emphasize the point that there is no distinction drawn by the R.S.A.No.329/2022 **18** statutory provision between an admitted and a disputed Will. So, the fact that the Will was admitted or was not denied is not at all a factor to be taken into account while deciding the question of proof of Will as contemplated under Section 68 since Section 68 of the Act has got overriding effect over Section 58 in the case of Wills. 25. So, the next question for consideration is whether the mandate under Section 68 of the Act would apply when the Will is to be proved as against a stranger. 26. In Sreelatha and Others v. Santha and Another : 2022 (1) KHC 74 a learned Single Judge of this Court has held that a total stranger has nothing to do with execution of a testament or Will or devolution of successive interest thereunder, unless he is a person claiming under the testator or a “person interested to admit or deny its execution” such as a pendente lite transferee or a person litigating under any of legatees or a person acquired interest over it by any deeds, transfer etc., but will not include a person, who has set up adverse interest over the property in derogation of rights of testator. The principle behind it is that a testament would operate only with respect to the subsisting rights held by the testator over the subject of the Will and it is an R.S.A.No.329/2022 **19** internal matter to be agitated between the persons claiming under him viz., legatees, legal heirs and legal representatives and not available to a stranger, who claims adverse interest against the testator over the subject. 27. In this context, it is also relevant to quote S.Ganesan v. S.Kuppuswamy and Ors. : MANU/TN/3990/2009 wherein a learned Single Judge of Madras High Court decided an identical question while dealing with Section 213(1) of the Indian Succession Act which expressly provides that no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. Paragraph Nos.17, 19 and 21 of the said decision is relevant which read as follows: 17. In view of the decision of the Hon'ble Apex Court reported in (2008)4 SCC 300 (cited supra) when a person having no caveatable interest or in any way related to the testator cannot insist upon the Will being proved strictly in accordance with Section 68 of the Indian Evidence Act. In this case, the defendants admittedly are not in any way related to the deceased and obviously they are not the legal heirs of the deceased testator and in such a case, the defendants cannot call upon the plaintiff to prove Ex.A17, R.S.A.No.329/2022 **20** the Will in accordance with Section 68 of the Indian Evidence Act. Ex.A17 is a registered Will and in such a case, the decision of the Hon'ble Apex Court reported in 2006(2)LW 658 SC [Pentakota Satyanarayana & Others v. Pentakota Seetharatnam & Others] is relevant and an excerpt from it would run thus: "25. A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. Unlike other documents the Will speaks from the death of the testator and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator. x x x x xx 19. The learned counsel for the defendants cited the decision of this Court reported in 2007(5) CTC 513 [L.Bakthavatsalam and others vs. R.Alagiriswamy R.S.A.No.329/2022 **21** (died) and others) so as to highlight the point that a Will has to be proved in accordance with Section 63 of the Indian Evidence Act. To the risk of repetition without being tautologous, I would state that the said decision is not applicable to the facts and circumstances of this case for the reason that the Will is sought to be pressed into service as against the defendants who are not the legal heirs or in any way interested in the suit property having some covetable interest in it. x x x x xx 21. The learned counsel for the plaintiff would appropriately and appositely would cite the decision of this Court reported in (2001) 1 TNLJ 71 [Valliammal vs. Arumugha Gounder and another] to buttress his stand that truth and validity of a Will cannot be questioned by a stranger to the family of the testator. It is therefore crystal clear that in this case, the defendants contention that the Will Ex.A17 was not proved in accordance with Section 63 of the Indian Evidence Act fails to carry conviction with the Court. Accordingly, this issue is decided to the effect that the plaintiff proved the due execution of the Will Ex.A17 by the testator, however in view of the decision under point No.1, such unprobated Will cannot be relied on by the plaintiff in support of his claim and prayers in the plaint. 28. From the above, what could be gathered is that the law laid down is that the truth and validity of a Will cannot be questioned by a stranger who is not claiming under the testator or in any way interested in the suit property, and will not include R.S.A.No.329/2022 **22** any person who sets up adverse interest over the property in derogation of rights of testator. 29. So in this particular case the Will was executed in the year 1989 and none of the legatees have any dispute with regard to the execution of the Will and the predecessor of the first plaintiff settled 2.075 cents of property to the first plaintiff in the year 2007. The plaintiffs produced certified copy of the settlement deed by which the property was settled in their favour by Joseph Rajan (Ext.A2). Subsequent tax receipt proving that the first plaintiff effected mutation in accordance with the settlement deed also produced. So plaintiffs could establish their title and possession over the plaint schedule property and the first defendant being a stranger is not entitled to dispute the validity of the will also. Moreover, the plaintiffs examined PW2, one of the attesting witnesses. The learned Munsiff found that through a leading question it was brought out in chief examination of PW2 that deceased had signed in the presence of witnesses. So it is found that as per Section 142 of the Indian Evidence Act the leading question must not if objected by the adverse party be asked in chief examination except with the permission of the court. It is further found that PW2 testified R.S.A.No.329/2022 **23** that he signed in the presence of testator but did not depose about the attestation by the other attesting witnesses and since he did not state regarding the attestation of other witnesses the trial court was of the view that the requirement of Section 68 of the Evidence Act is not satisfied. But as found earlier the proof of Will is not at all an issue in the present case because nobody has any case that the first plaintiff obtained the property by virtue of a Will. The will was executed by the predecessor in interest of the transferor of the first plaintiff and as found earlier none of the legatees under the Will have challenged it so far and hence the challenge of the will by the defendant who is a stranger is not all sustainable as per the settled position of law above discussed. So the contention of the learned counsel with regard to want of proof of the will and noncompliance of Section 68 of the Evidence Act and Section 63 (c) of the Indian Succession Act etc. is not at all acceptable. 30. Next is with regard to the identity of the property. The main contention of the learned counsel for the plaintiffs in this regard is that the question of identity was not at all raised in the written statement apart from a flat denial in the written statement of the first defendant that the plaintiffs is not the R.S.A.No.329/2022 **24** owner of the plaint schedule property and the church is not in possession of the property and no right has been transferred to the plaintiffs as per the settlement deed of the year 2007 and further that the executant of the documents have no right over the property. So there is no specific contention raised with regard to the identity of the property as such. 31. According to the learned counsel for the defendant, plaint schedule property is a part of item No.26 described as plaint B schedule item No.1 of Ext.A6 having a total extent of 3 acres and 85 cents of property comprised in survey Nos.1178, 1137, 1123 and 443 which has been described as “ÉIÞøÕµæÕùáOÞGÕᢠÉáùÕµÏá¢åµâ¿ß ²KÞÏߵ߿Má µ¿WÕÏíÉí ÉáÄáÕWÉùOí Éáø ¥ÄßæÜ ØµÜÕcfÞùÞÝíºµ{ᢠºÎÏB{ᢠ¯dµ ÎâKá æØaí ®YÉJFí . ” According to the learned counsel, since there is no specification as to the extent of properties out of the total 3 acres 85 cents in the four survey numbers how it has been described in Ext.A7 as 60 cents in survey number 443 is not discernible. So it is contended that the entire property allotted to Joseph Rajan as per Ext.A7 ought to have been measured so as to identify the plaint schedule property out of alleged 60 cents in survey No.443. He would also contend that there is description R.S.A.No.329/2022 **25** regarding 'puravaka'. He also produced N.B.S. Malayalam - English dictionary authored by Sri. C. Madhavan Pillai to show that the 'purambokku' land is also included and since the entire property is not measured the commissioner's report and plan produced cannot be accepted to find that the plaint schedule property has been identified. But the dictionary meaning of the broad sea or open sea cannot be adopted as a description of the property allotted to Thomas the predecessor in interest of the vendor of the first plaintiff. The description of the property would go to show that it includes the 'verumbattam' property then 'puravaka' which are lying contiguous and survey numbers of the properties have also been described in the schedule with specific boundaries. It is also pertinent to note that the commissioner's report and plan were marked through PW1 without any objection. No attempt was also made by the first defendant to examine the commissioner and discredit the report and plan. Exts.C2 and C2(a) are the commission report with the sketch of Taluk Surveyor in which the surveyor has clearly demarcated the plaint A schedule property having an extent of 2.075 cents. There is clear description in the commissioner's report as to how the measurement was effected and the property R.S.A.No.329/2022 **26** was identified and located and commissioner has categorically reported that on the northern side of the plaint schedule property is the panchayat road and western side is the VypinMunambam road and on the east and south are the properties of Joseph and Xavier respectively. 32. Learned counsel for the defendants did not bring to my attention any objection filed by them to the commissioner's report and plan and it appears from the marking of the commissioner's report and plan through PW1 that there was no objection to the defendants to the commissioner's reprot and plan. During cross examination of PW1, no question seen put with respect to the commissioner's report and plan. So in effect Ext.C2(a) plan demarcating the plaint schedule property remains unchallenged. It is true that questions are seen put to the effect that in survey No.443/4,5 obtained as per Ext.A6 60 cents is not involved. But that is stoutly denied by PW1. It is also to be noted that the trial court also found the title and possession of the plaintiffs over the plaint schedule property but the court was not inclined to decree the suit only for the reason of non-compliance of Section 68 of the Evidence Act with regard to the proof of Will. So the contention of the first defendant that the plaintiffs could R.S.A.No.329/2022 **27** not establish the identity of the plaint schedule property is not at all sustainable. 33. A contention is also seems to have been raised by the first defendant with regard to adverse possession. But it has been concurrently found against the first defendant by the courts below. As has been rightly found by the first appellate court the first defendant has to first of all admit the title of the plaintiffs in order to claim adverse possession. It has been found by the first appellate court that there is no specific contention in the written statement of the first defendant or the written statement of defendants 3 and 4 about the actual date of entry into the plaint schedule property or the commencement of the adverse possession. The written statement of the first defendant would go to show that his contention is that he has been conducting fruit shop in the premises for the last more than 10 years and before that his father was in possession and his father was conducting business for more than 25 years. The decision reported in Harihar Sahu v. State of Orissa and Anr [2017 KHC 4584 ]; Krishnamurthy Setlur (dead) by LRs v. O.V. Narasimha Setty and other [2007 (3) SCC 569 ] were relied on by the first appellate court to discard the plea of adverse possession. On a R.S.A.No.329/2022 **28** meticulous evaluation of the concurrent findings on the issue of adverse possession against the defendants by the trial court as well as the first appellate court, I am of the view that it has been dealt with in a correct perspective and acquisition of right by adverse possession has been rightly refused by the courts below. So on a close scrutiny of the entire facts and circumstances I am of the view that the plaintiffs could establish their right and title over the plaint schedule property and defendants could not establish any legal right to continue the possession of the plaint schedule property. So the recovery of possession, permanent prohibitory injunction as well as the mandatory injunction granted by the first appellate court is only to be confirmed. In the result, appeal is found to be devoid of any merit and hence dismissed confirming the judgment and decree passed by the first appellate court. In the facts and circumstances, there is no order as to costs. Sd/- ## **M.R.ANITHA** shg **JUDGE**