Jayasree Vijayan v. P. Surendran and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.V.N.BHATTI FRIDAY, THE 23[RD] DAY OF JUNE 2023 / 2ND ASHADHA, 1945 RSA NO. 285 OF 2005 AGAINST THE JUDGMENT AND DECREE AS 204/1996 OF II ADDITIONAL DISTRICT COURT, TRIVANDRUM OS 294/1988 OF I ADDITIONAL MUNSIFF COURT, TRIVANDRUM ## APPELLANT/S: JAYASREE VIJAYAN, DAUGHTER OF KANCHANA, `SREECHAKRAM', MANAKAUD, THIRUVANANTHAPURAM. BY ADV D.ANIL KUMAR ## RESPONDENT/S: - 1 P.SURENDRAN(DIED, LRS IMPLEADED), EDAVAILAKKATHU MURI, VAILOOR VILLAGE, THIRUVANANTHAPURAM. - 2 S.DEVANAND, AGED 32,S/O SURENDRAN,'SREEPADMAM' T.C.49/726 (1)MEDAMUKKU,MANACAUD P.O,THIRUVANANTHAPURAM. - 3 S.INDULEKHA, AGED 29,D/O SURENDRAN,'SREEPADMAM' T.C.49/726 (1)MEDAMUKKU,MANACAUD P.O,THIRUVANANTHAPURAM. - 4 S.BINDU, AGED 27,D/O SURENDRAN,'SREEPADMAM' T.C.49/726 (1)MEDAMUKKU,MANACAUD P.O,THIRUVANANTHAPURAM. (THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL R2 TO R4 AS PER ORDER DATED 15.02.2017 IN IA 1226/15. ) BY ADVS. G.BIJU; M.RAJAGOPALAN NAIR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **R.S.A. No.285/2005** **-2-** ## J U D G M E N T On 06.02.1988, P Surendran filed O.S. No.294/1988 on the file of 1[st] Additional Munsiff, Thiruvananthapuram, against Kanchana for the relief of declaration and mandatory injunction. 2. The parties since are no more; the array of parties represents the legal heirs of the plaintiff and the defendant. The Regular Second Appeal is filed by Jayasree Vijayan, the legal representative of the defendant and respondents nos. 2 to 4 are impleaded as legal representatives of the sole plaintiff/appellant during the pendency of the Second Appeal. It is convenient to refer to parties as plaintiff and defendant. 3. The plaintiff claimed he owns the plaint schedule property covered by Sale Deed No.2414/1977 executed by one Kali Lekshmi. Admittedly, one Vishwanathan was the owner **R.S.A. No.285/2005** **-3-** of the plaint schedule property. The issue is whether Vishwanathan remained unmarried and died, leaving behind the mother, Kali Lekshmi or one Margaret, wife of Vishwanathan, upon conversion and baptism as the successorin-interest. The plaintiff claims that the property transferred by the lawful successor-in-interest had conveyed the title to the plaintiff. _Per contra_ , the defendant's case is that Vishwanathan converted to Christianity, married one Margaret and has begotten seven children through her. Therefore, the succession claimed by Kali Lekshmi is illegal and unavailable. Consequently, the transfer by Kali Lekshmi of the plaint schedule in favour of the plaintiff does not convey the right or title of Vishwanathan. 4. The plaintiff further avers that the plaintiff is in possession and enjoyment of the plaint schedule property and effected valuable improvements. The defendant, as admitted, is a relative of Vishwanathan and owned property on the **R.S.A. No.285/2005** **-4-** northern side of the plaint schedule property. By way of the first round of litigation, O.S. No.1008/1977 was filed for perpetual injunction by the plaintiff herein against the defendant. The Trial Court in O.S. No.1008/1977 recorded a finding that the plaintiff has title and possession over the property and the defendant has no interest in the plaint schedule property. However, the suit was dismissed for want of cause of action. The defendant taking advantage of the plaintiff’s absence from the plaint schedule is trespassing into the plaint-schedule property. Therefore, the plaintiff prays for a mandatory injunction to construct a boundary wall on the northern side of the plaint-schedule property. The suit was subsequently amended, praying for a decree of mandatory injunction directing the defendant to demolish and remove the building portion constructed by the defendant during the pendency of the suit. Hence the suit for declaration, perpetual and mandatory injunction. **R.S.A. No.285/2005** 5. The defendant contested the suit in all fours. Firstly, the objection is on the maintainability of the suit. Kali Lekshmi, an incompetent person with no right over the plaint schedule property at any point of time, executed the suit document. The original owner Vishwanathan derived the title to the plaint schedule through partition deed no.439/1954. Under the same document, the defendant was allotted a portion of the property. The principal and specific case of the defendant is that on 26.10.1952, Vishwanathan converted to Christianity and on baptism, the name was changed from Vishwanathan to Thomas. Vishwanathan alias Thomas married one Margaret at St.Xaviers Church in Pune. They have begotten seven children from the marriage. On 04.08.1978, Margaret Thomas, wife of the late Thomas (Vishwanathan), as Thomas’s widow, sold the property for herself and on behalf of her children. For the record, it can be noted that Vishwanathan died on 26.12.1970. Margaret, being **R.S.A. No.285/2005** **-6-** the legally wedded wife, claims to have succeeded to the estate of Vishwanathan. Hence, the vendor, i.e., Kali Lekshmi, did not have title to the property and could not have lawfully conveyed any interest or right to the plaintiff. By way of a counterclaim, the defendant claimed perpetual injunction against the plaintiff. 6. The Trial Court framed the following issues for consideration. “(1) Whether the plaintiff is entitled to put up boundary as prayed for? (2) Whether the counterclaim raised by the defendant is allowable? - (3) Reliefs and costs. Addl. (4) Is the declaration prayed for by the plaintiff allowable? (5). Is the mandatory injunction prayed for allowable? 6.1 The Trial Court has taken up issues nos 1 and 4 and recorded a finding that the plaintiff is not entitled to the relief of declaration of title. Consequently, the prayer for a **R.S.A. No.285/2005** **-7-** mandatory injunction is unavailable. The Trial Court, in answering issue no.2, has held that the defendant is entitled to the relief of perpetual injunction against the plaintiff. The 1[st] Appellate Court has since reversed the finding of the Trial Court on this crucial aspect of the matter; it is apt to excerpt the following paragraph from the said judgment: “16. Issue No 2. The plaintiff seeks a declaration of her title and possession over the property scheduled by virtue of Ext.B3 sale deed and Ext.B4 mortgage deed. I have already found that Ext.A2 sale deed was not a validly executed document. I do not find any infirmity in Ext.B3 and Ext B4 documents. From the oral testimony of DW.1, I am satisfied that she is in possession and enjoyment of the property scheduled in the written statement. Though plaintiff in his written statement to the counter claim raises an alternative plea of adverse possession, he failed to plead and prove adverse possession legally. In the above circumstances I am of the view that the defendant has ownership and mortgage right over the property included in the schedule off the written statement. The materials before court and the nature of the contentions on either side justify the granting of a prohibitory injunction against the plaintiff. The counter claim is therefore allowable as stated above. The issue **R.S.A. No.285/2005** **-8-** ## answered accordingly.” 7. The plaintiff filed A.S. No.204/1996 before the II Additional District Judge, Thiruvananthapuram. The Appellate Court framed the following point for consideration: “Whether the judgment of the trial court dismissing the suit and decreeing the counter claim is liable to be set aside?” and incidentally considered the finding recorded by the Trial Court on issue nos. 1 and 4 and reversed the judgment of the Trial Court. Hence, the Second Appeal. 8. The Second Appeal is admitted on the following questions of law: “(1) Whether the finding of the lower appellate court that Ext. A5 judgment will operate as res judicata against the defendant in the suit, though there was no decree against her is sustainable? (2) Is the finding of the lower appellate court that Viswanathan died without any legal heirs was arrived at overlooking the evidence and materials in this case.” ## 9. I have heard learned Counsel Mr D Anil Kumar for **R.S.A. No.285/2005** **-9-** the appellant and Mr M Rajagopalan Nair for the respondents. 9.1 The defendant argues that the 1[st] Appellate Court fell in a serious error in law by reversing the findings recorded by the Trial Court. The point for consideration framed by the Appellate Court is illegal and unsustainable. The point framed since is not in conformity with Order XLI, Rules 30 and 31 of Civil Procedure Code 1908, the approach and consideration by the Appellate Court are fully vitiated. Therefore, the substantial questions of law framed need to be appreciated from the perspective of Section 100 of the Civil Procedure Code. Elaborating the argument, learned Counsel contends that the parties to the present round of litigation are already parties to the suit filed in O.S. No.1008/1977. 9.2 The defendant and the original title holder; when you call him Vishwanathan, he is related to the defendant; when you call him Thomas, he is known to the defendant as a neighbouring owner, derived title to the property through **R.S.A. No.285/2005** **-10-** Deed No.439/54. The defendant is fully conversant with the family history and circumstances from multiple perspectives. Therefore, the conversion into Christianity pleaded by the defendant is more than probable juxtaposed in the background of Exhibits B1 and B2. Once the factum of conversion is established, Kali Lekshmi being the mother and a Class I heir under Section 8 of the Hindu Succession Act, 1956, is completely excluded from claiming devolution or intestate succession to the property held by Thomas alias Vishwanathan. The Appellate Court was erroneously persuaded by the findings recorded in the judgment in O.S. No.1008/1977, and the findings cannot be set against the defendant on the principle of _res judicata_ , for, against a finding, no appeal is maintainable before an Appellate Court. Similarly, the finding of Vishwanathan dying without a natural heir is recorded without evidence, and Thomas alias Vishwanath died, leaving behind Magaret and seven children. **R.S.A. No.285/2005** **-11-** The matter involves no complicated consideration of questions of fact. Still, the presumption drawn from the evidence available needs to be revised. Therefore, he commends the Court to answer the substantial questions in favour of the defendant and against the plaintiff. 10. Mr M Rajagopalan contends that the arguments or the substantial questions now framed do not arise for consideration at all. The issue needs to be appreciated from what has been admitted, what has been contested and on whom the burden lies in discharging the basic facts. From that perspective, the argument proceeds that a pleading in the writ statement by itself is not proof of a fact in issue on which the contesting party has the burden to prove. Secondly, merely marking a document without evidence does not amount to discharging the burden of proof fastened on a party. Appreciating the pleadings on hand, it is argued that the defendant does not dispute that Kali Lekshmi is the mother of **R.S.A. No.285/2005** **-12-** Vishwanathan. There is no dispute about the demise of Vishwanathan alias Thomas on 26.12.1970. The question is: What is the standing, namely whether he died as a Hindu or a Christian, and having admitted that the defendant’s entitlement is traced through Margaret Thomas, there is no proof of conversion, baptism and marriage. Unless and until the crucial circumstance is proved, the title claimed by the defendant to the schedule property through Margaret is unavailable. The Counsel mostly argued in support and against the appeal by pointing out the non-consideration and consideration of oral and documentary evidence by the 1[st] Appellate Court. No citation is relied on by the parties. 11. I have perused the record, and before taking up the substantial questions of law, the following admitted circumstances are to be prefaced. Ext A5 dated 17.01.1978 is the copy of the judgment in O.S. No.1008/1977. The Trial Court recorded the findings on the plaintiff’s title. It is not very **R.S.A. No.285/2005** **-13-** material whether the defendant could have filed an appeal against a finding or could not have filed an appeal on a mere adverse finding recorded in O.S. No.1008/1977. In favour of the defendant, Ext.B3 was executed on 04.04.1978 by Margaret Thomas, followed by a mortgage deed Ext.B4 dated 04.04.1978. 12. The further admitted circumstance is that in the written statement filed in O.S. No.1008/1977, the crucial aspect of conversion needs to be elaborately stated or noted. The defendant, in the written statement filed in the present O.S. No.294/1988 on the relationship between Vishwanathan and Kali Lekshmi, firstly, has not denied and, secondly, has admitted that Kali Lekshmi is the mother of Vishwanathan. The sequence of consideration would demonstrate that to disturb the title claimed by the plaintiff through Kali Lekshmi, the defendant pleaded conversion, baptism and marriage. One need not deliberate much on Section 102 of the Evidence Act, which deals with proof of a special circumstance pleaded by a **R.S.A. No.285/2005** **-14-** party. 12.1 The Supreme Court, in _Smriti Debbarma v. Prabha Ranjan Debbarma_[1] , by referring to _Addagada Raghavamma_ v. _Addagada Chenchamma_[2] , has summarised that the burden of proof when the basis is for a claim exclusively rests on the party who makes such an assertion. “The burden of proof to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief. This is mandated in terms of Section 101 of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party who is denying it. This rule may not be universal and has exceptions, but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt, shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the 1 2023 SCC OnLine SC 9 2 AIR 1964 SC 136 **R.S.A. No.285/2005** **-15-** defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title.” 12.2 In the above consideration, I advert to the oral evidence. The defendant was examined as DW1 on the factum of conversion, baptism and marriage. She does not claim to have personal knowledge or a witness to these events. Therefore, no evidence on the three crucial aspects, i.e., conversion, baptism and marriage, is placed on record. Exts.B1 and B2 no doubt refer to baptism and certify that marriage happened in a Church with Margaret. Exhibits B1 and B2 were marked subject to proof and relevancy. The proof of these documents is not forthcoming from the defendant. It is axiomatic that merely marking a document does not amount to proof. The defendant, having admitted the standing of Kali Lekshmi as the mother of Vishwanathan alias Thomas, can dislodge Kali Lekshmi from claiming succession to the plaint schedule property only if the factum of conversion from Hindu **R.S.A. No.285/2005** **-16-** to Christianity is established. Therefore, by looking at the stand taken in the written statement, namely, Kali Lekshmi is the mother of Vishwanathan, and failure to prove Exts.B1 to B2, the defendant failed to discharge the burden, and on the principal issue, whether the plaintiff can be the owner or the defendant can be the owner, the 1[st] Appellate Court rightly considered the oral and documentary evidence and accepted the case of the plaintiff. 12.3 It is next argued that the Appellate Court was swayed by Exts.A4 and A5 judgment and decree in O.S. No.1008/1977 applied the principle of _res judicata_ . The Court has to consider the applicability of Section 11 of the Civil Procedure Code if the Appellate Court has decreed the suit of the plaintiff on the strength of Exts.A4 and A5 by applying the principle of _res judicata_ . I am relieved of the responsibility of examining the said issue on the lines argued by the learned Counsel, inasmuch as the 1[st] Appellate Court formulated a **R.S.A. No.285/2005** point, which, according to the Appellate Court, deals with the entire judgment under appeal before it, considered the merits of the case pleaded and proved by both the parties and allowed the appeal. Therefore, as framed, the question is not available for argument to the defendant and does not merit the requirement of section 100 of the Code of Civil Procedure. 12.4 Lastly, it was urged that the point framed is broad and general. Therefore, the Second Appeal ought to be allowed and remanded to the Appellate Court for reconsideration. I am afraid that the argument revives the long-standing litigation from 1977 till date. If substantial prejudice had occasioned to the defendant in such a consideration, i.e., not taking up the merits but only reversing the judgment of the Trial Court, then it is a different consideration for this Court under Section 100 to consider and answer the question. I have taken note of each of the contentions the 1[st] Appellate Court considered and recorded a finding. The consideration by the **R.S.A. No.285/2005** **-18-** 1[st] appellate court in the facts of the case on hand is legal, the findings recorded are available, and the findings of the 1[st] Appellate Court do not warrant the interference of this Court. No substantial question of law is made out for interfering with the judgment of the 1[st] Appellate Court. Hence, the appeal fails and is dismissed. No order as to costs. Sd/S.V.N.BHATTI CHIEF JUSTICE jjj