Johny v. Mathai and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH DAY OF MARCH 2012/17TH PHALGUNA 1933M B RSA.No. 769 of 2007 ( ) ----------------------AS.50/2007 of DISTRICT COURT, ERNAKULAM OS.313/1997 of MUNSIFF COURT, MUVATUPUZHA APPELLANT(S)/RESPONDENT NO.2/DEFENDANT NO.2: ----------------------------------------------------- JOHNY, AGED 50, S/O.MATHAI, PALAKKADAN HOUSE, THANAKALAM KARA, THRIKKARIYOOR, KOTHAMANGALAM. BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.B.SUBRAMANYAN RESPONDENT(S)/APPELLANT AND RESPONDENTS 1 & 3 IN A.S/PLAINTIFF AND DEFENDANTS 1 & 3 IN OS: ------------------------------------------------------- 1. DR.MATHAI, S/O.MATHAI, AGED 63, RESIDING AT PALAKKADAN HOUSE, CHENGAL KARA, VADAKKUM BHAGOM, ALUVA FROM PALAKKADAN HOUSE, THANKALAM KARA, THRIKKARIYOOR, KOTHAMANGALAM. 2. MARKOSE, AGED 56, S/O.MATHAI, RETIRED PROFESSOR, PALAKKADAN HOUSE, THANKALAM KARA, THRIKKARIYOOR, KOTHAMANGALAM TALUK. 3. SARA, AGED 85, W/O.MATHAI, PALAKKADAN HOUSE, CHENGAL KARA, ALUVA TALUK FROM PALAKKADAN HOUSE, THANKALAM KARA, THRIKKARIYOOR KOTHAMANGALAM. ADV. SRI.H.SIVARAMAN FOR R1 ADV. SRI.MATHEW CHERIAN FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------R.S.A. No.769 of 2007 -------------------------------------Dated this the 7[th] day of March, 2012.** ## **JUDGMENT** This appeal arises from the judgment and decree of learned District Judge, Ernakulam in A.S.No.50 of 2007 reversing dismissal of O.S.No.313 of 1997 by the learned Munsiff, Muvattupuzha. Parties are referred as plaintiff and defendants for convenience. 2. Mathai and Varkey are brothers. 3[rd] defendant is the wife of Mathai. Plaintiff and defendants 1 and 2 are their children. Mathai and 3[rd] defendant have two other sons - Varghese and Thomas. Plaintiff who is a Medical Practitioner by profession was working at various places. While so, plaintiff claims, his father, late Mathai executed Ext.A1, settlement deed dated 14.05.1959 in his favour concerning three items. Since he was awary at various places in connection with his employment, properties were being looked after by defendants 1 to 3 for and on his behalf. The suit property is item No.3 in Ext.A1. In the year, 1997 when he wanted to dispose of the suit property (item No.3 in Ext.A1) there was some obstruction from defendants 1 and 2, his brothers and on enquiry he learnt that 1[st] defendant had obtained document No.2931 of 1965 dated 16.08.1965 executed by the jenmi in favour of the 1[st] defendant (a copy of which is marked as Ext.A2) and that on the strength of Ext.A2, 1[st] defendant assigned item No.3 to the 2[nd] defendant as per document No.1643 of 1970 2 RSA No.769/2007 dated 28.04.1970 ( a copy of which is marked as Ext.A3). Plaintiff maintained that he continues to be in possession and enjoyment of the suit property through his mother, 3[rd] defendant and on enquiry he learnt about Exts.A2 and A3. Those documents according to him, would not bind the suit property or him and hence he prayed for a declaration of his title and possession of the suit property and a further declaration that Exts.A2 and A3 do not bind him or the suit property. 3. 3[rd] defendant, mother did not interfere in the fight between her children. Defendants 1 and 2 were not that much magnanimous. They contended that plaintiff never had any right, title, interest or possession of the suit property. They claimed that property belonged in jenm to Thaliyil Mana wherefrom their paternal uncle, Varkey had taken it on lease. The said Varkey gave the lease hold right in favor of 1[st] defendant who later purchased jenm rights as per Ext.A2, dated 16.08.1965. That was followed by the 1[st] defendant assigning his right, interest and possession in favour of the 2[nd] defendant as per Ext.A3, assignment deed dated 28.04.1970 (Exts.B2 and B3 are the originals of Exts.A2 and A3). They also claimed that 1[st] defendant has been in possession and enjoyment of the property which he conveyed to the 2[nd] defendant as per Ext.A3 (Ext.B3). A further contention they raised is that pursuant to Ext.A3 (Ext.B3), 2[nd] defendant assigned 45 cents out the suit property to Thomas, another brother of theirs as per document No.1268 of 1973 and the said 45 cents is in the possession of the said Thomas. They contended that the suit is bad for non-joinder of necessary parties (obviously referring to the non- 3 RSA No.769/2007 impleadment of Thomas as a party to the suit). Trial court framed the issue whether plaintiff is entitled to get the declaration prayed for, found that plaintiff has no title or possession of the suit property and dismissed the suit. 4. Plaintiff carried the matter in appeal. During the pendency of the appeal, plaintiff produced partition deed No.3296 of 1959 which the first appellate court has marked as Ext.A6. On the strength of Ext.A6, first appellate court said that though the property belonged in jenm to Thaliyath Mana and it was taken on lease by Mathai and his brother Varkey, there was a partition among them as per Ext.A6 by which the suit property was allotted to the share of Mathai and hence, Varkey had no lease hold right over the property to be given to 1[st] defendant as referred to in Ext.A2. First appellate court held that therefore, 1[st] defendant could not have got lease hold right over the property in which case he could not have assigned lease hold right in favour of 2[nd] defendant as per Ext.A3 (Ext.B3). First appellate court took the view that what the 1[st] defendant had got as per Ext.A2 (Ext.B2) is only the jenm right over the property and by the time Ext.A3 (Ext.B3) was executed in favour of the 2[nd] defendant, jenm right had vested with the Government. Therefore, 1[st] defendant was not competent to assign the jenm right over the property in favour of 2[nd] defendant as per Ext.A3 (Ext.B3). In that view, first appellate court held that 2[nd] defendant has acquired neither jenm right nor lease hold right over the property. The documents produced by the plaintiff was accepted and a decree was granted as prayed for. That judgment and decree are under challenge at the instance of 2[nd] defendant. 4 RSA No.769/2007 5. Following substantial questions of law are framed for a decision: i. Whether the first appellate court was justified in granting a decree for declaration when plaintiff did not seek any consequential relief? ii. Whether the first appellate court was justified in reversing the decree relying on Ext.A6, which was produced in appeal, without granting opportunity to the respondents to impeach the same? iii. Whether first appellate court was justified in reversing the decree relying on Ext.A6, ignoring Exts.B2 to B6 and the admissions of the parties? 6. Learned Senior Advocate for the appellant/2[nd] defendant contended that frame of the suit itself is bad in law notwithstanding that it was specifically pleaded that as per document No.1268 of 1973, 45 cents out of the suit property was assigned by the 2[nd] defendant in favour of Thomas but the said Thomas has not been made a party to the suit. Nor is there any declaration sought with respect to document No.1268 of 1973. It is further contended that notwithstanding that defendants 1 and 2 denied possession claimed by the plaintiff and, even on the face of the evidence plaintiff was given as PW1 regarding the possession he claimed, no attempt was made to incorporate a prayer for recovery of possession of the suit property. In that view of the matter, a mere declaration could not have been granted as provided under Sec.34 of the 5 RSA No.769/2007 Specific Reliefs Act (for short, “the Act”). It is contended by the learned Senior Advocate that partition deed No.3296 of 1959 was marked as Ext.A6 in the first appellate court depriving the appellant and other contesting defendants of an opportunity to explain away the document and the recitals therein. My attention is drawn to Exts.A4 and A5, documents admittedly executed by the plaintiff. Ext.A4, document No.1267 of 1973 is dated 30.04.1973 and executed by the plaintiff in favour of the 2[nd] defendant concerning item No.1 in Ext.A1. My attention is also drawn to the recital in Ext.A1 to show that even prior to Ext.A4, property referred therein was given in the possession of 2[nd] defendant as if it is a family property. Ext.A5 is assignment deed No.1265 of 1973 dated 30.04.1973 executed by plaintiff in favour of Thomas (who is not a party to the suit) concerning item No.2 in Ext.A1. It is also pointed out by the learned Senior Advocate that Exts.A4 and A5 are executed on the same day and are attested by the 1[st] defendant as witness. These circumstances according to the learned Senior Advocate, would show that plaintiff had no right or possession over item No.3 in Ext.A1 referred to in the plaint schedule. A further contention raised is that as per Ext.B1, partition deed, property jointly held by the brothers are partitioned but there is no reference to the suit property. It is pointed out that in Ext.B1 there is a further recital that if there is any other property left out of partition, the same shall be possessed by the person in possession. In the circumstances it is contended that judgment and decree of the first appellate court cannot be accepted. 6 RSA No.769/2007 7. Learned counsel for plaintiff would contend that first appellate court has referred to the various documents to hold that the 2[nd] defendant has not acquired either lease hold or jenm right over the property, on the face of the documents proved in the case, contention of the 2[nd] defendant that he is the owner in possession of the suit property cannot be accepted. It is also contended that Ext.A6 is not a disputed document and hence the mere fact that it is admitted in evidence in the first appellate court would not cause any prejudice to the appellant/2[nd] defendant or other contesting defendants. A further contention raised by the learned counsel is that though in the written statement it is stated that Thomas is in possession of a portion of the suit property, details of the document as per which Thomas allegedly got title and possession are not given. Alternatively it is contended by the learned counsel that plaintiff may be given an opportunity to implead the said Thomas and seek necessary other appropriate reliefs in the plaint. 8. In response, learned Senior Advocate contended that it is hard to allow a remand of the case to fill up the lacuna at this stage. Learned Senior Advocate points out that in Secs.21 and 22 of the Act when specific provisions are made for allowing a party to amend the plaint as referred to therein, Sec.34 of the Act makes no mention about such a provision. It is pointed out by the learned Senior Advocate that though details of the document under which Thomas got title and possession is not referred to in the written statement, it was specifically stated that there was an assignment in favour of Thomas by the 7 RSA No.769/2007 2[nd] defendant and the said Thomas is in possession of a portion of the suit property and that should have alerted the plaintiff to make appropriate enquiry into the matter. 9. So far as Ext.A6 is concerned, that document was produced in the first appeal and marked in evidence. I am inclined to think that contesting defendants were entitled to get an opportunity to explain away that document or the recitals therein. Now that the document was marked in appeal that opportunity has been deprived to the contesting defendants. 10. So far as the contention that a mere suit for declaration would not lie on the face of the materials on record is concerned, reference can be made to the evidence of PW1. Evidence of PW1 in cross examination would show that he learnt about Ext.A1 in the year, 1973 (though it is executed on 14.05.1959). He further says that he does not know whether Thomas is in possession of any portion of the suit property. He does not know who is paying the tax for the suit property. He does not know whether defendants 1 and 2 have been paying the tax. He has not taken any steps to pay tax or get possession of the suit property after 1973. He also says that the suit property is now in the possession of Johny. According to PW1, he has no other property (adjoining the suit property). He says that he has neither effected cultivation in the property nor taken income directly. He is residing 20 kms. away from the suit property. 8 RSA No.769/2007 11. It is pertinent to note that plaintiff, apart from producing Exts.A1 to A5, did not produce any document to show that he is in possession of the suit property. I have already referred to Exts.A4 and A5 which concern items Nos.1 and 2 in Ext.A1. Exts.A4 and A5 cannot necessarily indicate that plaintiff is in possession of the suit property (item No.3 in Ext.A1). The other document which is produced to show title and possession is Ext.A1. On the other hand, contesting defendants have produced Exts.B5 and B6 series. Ext.B5 is the possession certificate issued by the Village Officer concerned. Ext.B6 series show that in 1997, 1999 and 2000, contesting defendants were paying revenue for the suit property. Ext.B4, copy of thandaper account also shows that at no point of time, plaintiff has paid revenue for the suit property instead, it was paid by the 1[st] defendant and later, the 2[nd] defendant. 12. In the light of the above evidence as also the version of plaintiff as PW1, I am inclined to think that the contention raised by contesting defendants that plaintiff has no possession of the suit property on the date of suit has to succeed. 13. Under the proviso to Sec.34 of the Act, no court shall make any declaration as referred to in Sec.34 of the said Act where plaintiff , being able to seek further relief than a mere declaration of title, omits to do so. In this case I stated that Thomas with whom according to the contesting defendants a portion of the suit property has not been made a party. Learned Senior Advocate has referred to the document No.1268 of 1973 as per which the 2[nd] defendant 9 RSA No.769/2007 allegedly assigned a portion of the suit property to Thomas. I also stated from the evidence that the claim of plaintiff that he was in possession of the property directly or through 3[rd] defendant (as on the date of suit) is difficult to be accepted. In such a situation a mere declaration could not have been asked or granted. 14. But, I find from the judgment of the trial court that learned Munsiff has not framed any issue regarding non-joinder of a necessary party or even regarding the possession claimed by the plaintiff, on the other hand, the only issue framed is whether plaintiff is entitled to the declaration prayed for. I am inclined to think that in the nature of the contention raised by defendants 1 and 2, courts below ought to have framed the issue regarding non-joinder of necessary party. 15. Now the question is whether in the above circumstances plaintiff be given opportunity to amend the plaint, incorporate necessary reliefs and implead necessary parties. No doubt the proviso to Secs.21 and 22 of the Act expressly provides that the court may allow amendment in the circumstances stated therein. Sec.34 of the Act does not contain any such express provision. I am not inclined to think that because of that reason I must say that so far as prayer for declaration is concerned, the court has no power to allow amendment of the plaint to incorporate appropriate, consequential reliefs. That power of the court comes under Order VI, Rule 17 of the Code. 10 RSA No.769/2007 16. I stated that trial court failed to frame proper issue and alert the plaintiff about the necessity to implead necessary parties. In such a situation the suit cannot be dismissed for non-impleadment of necessary parties. Having regard to the facts and circumstances and the title that the parties have claimed by respective documents I am inclined to think that plaintiff must be given an opportunity to amend the plaint and implead necessary parties to the suit. 17. I am aware that the suit is of the year, 1997 and it is after several years that the matter is being sent back to the trial court. In this connection, I am remained of what Lord Atkin has said in **Behari v. King Emperor ((1933) 60 LR IA 254)** “Finality is a good thing but, justice is better.” I think that notwithstanding the length of time, plaintiff must be given an opportunity to seek amendment of plaint and impleadment. 18. I make it clear that I have not expressed any opinion regarding the title claimed by the respective parties. I also make it clear that if applications for amendment/impleadment are preferred, learned Munsiff shall decide those applications after hearing the contesting defendants and needless to say, that if the request for impleadment/amendment is allowed, contesting defendants will have the opportunity to file additional written statement and the parties will get the opportunity to adduce further evidence if any on the disputed questions. 11 RSA No.769/2007 Resultantly this Second Appeal is allowed by way of remand as under: i. Judgment and decree of the learned District Judge, Ernakulam in A.S.No.50 of 2007 and of the learned Munsiff, Muvattupuzha in O.S.No.313 of 1997 are set aside. ii. O.S.No.313 of 1997 is remitted to the court of learned Munsiff, Muvattupuzha for fresh decision in the light of the observations I have made above. iii. Parties shall appear before the learned Munsiff on 10.04.2012 **THOMAS P.JOSEPH, Judge.** **cks** PP