Junaida Beevi v Veeyathummal and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY ,THE 26TH DAY OF MARCH 2019 / 5TH CHAITHRA, 1941** ## **SA.No. 575 of 1997** **AGAINST THE JUDGMENT AND DECREE DATED 31-03-1997 IN AS 283/1996 OF SUB COURT, NEDUMANGAD** **AGAINST THE JUDGMENT AND DECREE DATED 13-12-1993 IN OS 601/1992 OF PRINCIPAL MUNSIFF COURT, NEDUMANGAD** ## **- APPELLANT IN S.A. (APPELLANT/DEFENDANT):** **JUNAIDA BEEVI, W/O YOUSAF, MUSLIM LADY, AGED 35, CHANTHAVILAKOM VEEDU, BEHIND NEDUMANGAD MARKET, THENKKUMKARA MURI, NEDUMANGAD VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER, THAJUDEEN, SON OF ADBDULKADHADAR, AGED 39, NARAKATHILA VEEDU, MUNDELA, KOKKOTHEMANGALAM MURI, ARUVIKARA VILLAGE, NEDUMANGAD TALUK.** **BY ADVS. SRI.G.S.REGHUNATH SRI.MOHAN JACOB GEORGE** ## **- RESPONDENT IN S.A. (RESPONDENT/PLAINTIFF)** **1 VEEYATHUMMAL, D/O AISHA BEEVI, MUSLIM LADY, AGED 53, RESIDING IN THAIKKAVUVILAKATHU VEEDU, THEKKUMKARA MURI, NEDUMANGAD VILLAGE, NEDUMANGAD TALUK. (DIED)** **LR'S IMPLEADED.** - **ADDL.R2 TO R6 IMPLEADED** - **2 BUSHARA, D/O VEEYATHUMMAL, REENAMANZIL, THEKKUMKARAMURIL, MARKET JUNCTION, NEDUMANGAU VILLAGE.** - **3 SUBAIDA, D/O VEEYATHUMMAL, REENAMANZIL, THEKKUMKARAMURIL, MARKET JUNCTION, NEDUMANGADU VILLAGE.** - **4 SAJAD, S/O VEEYATHUMMAL, VALLKKODU PALLIVILAKATHU** **SA.No. 575 of 1997 2** ## **VEEDU, MARKET JUNCTION, NEDUMANGADU VILLAGE.** - **5 SHAHITHA, D/O VEEYATHUMMAL, THIKKAVUVILAKATHU VEETTIL, THEKKUMKARIL MURI, NEDUMANGAD VILLAGE.** - **6 SUNESH, S/O VEEYATHUMMAL, NAILKALL POIKA VEETTIL, NEAR VALLITHODU DHARSANA SCHOOL, THEKKUMKARA MURI, NEDUMANGAD VILLAGE.** **LEGAL REPRESENTATIVES OF DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL R2 TO R6 AS PER ORDER DT.1/9/14 IN I.A.1154/03.** - **7 NOOHUKANNU, S/O NAINA MUHAMMED, T.C.39/247, PUTHEN VEEDU, MURIPPALATHODI LANE, CHALAI PO, CHALAI MURI, MANACAUD VILLAGE, THIRUVANANTHAPURAM - 695 036** **ADDL R7 IS IMPLEADED AS PER ORDER DT.3/12/14 IN I.A.1701/14** **R3 TO R7 BY ADVS.SRI.K.P.SUJESH KUMAR** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SA.No. 575 of 1997 3** ## **JUDGMENT** The defendant who lost in both in the Trial Court (Prl.Munsiff's Court, Nedumangad) in O.S.No.601/1992 and the First Appellate Court(Sub Court, Nedumangad) in A.S.No.283/1996, came up with this appeal. 2. It is a suit for simple injunction against trespass and committing waste or destructing the boundaries thereon with respect to an extent of 27 cents of property comprised in Sy.No.1818/7, alleged to have been obtained by the plaintiff by virtue of Ext.A1 gift deed dated 11/05/1950 from his father. 3. The defendant _inter alia_ contended that the gift Ext.A1 was brought into existence by impersonation and playing forgery. It was also contended that the father was not having any title or alienable interest over the said property and hence title to the property also disputed. The defendant claims that the 27 cents of property scheduled in the plaint forms part of large extent of 55 cents obtained by them under a gift deed. Both the Trial Court and the First Appellate Court rejected the contention of the defendant and decreed the suit. ## **SA.No. 575 of 1997 4** Aggrieved by the said decree and judgment, the defendant came up with this appeal. 4. In the second appellate stage two I.A.'s were filed in I.A.NO. 1872/2014 under Order 41 Rule 27 of CPC and I.A.No.993/2015 under Order VI Rule 17 CPC, for accepting 4 documents as additional exhibits B1 to B4 (2+4). 5. The plaint schedule comes to 27 cents of property comprised in Sy.No.1818/7. The specific case advanced by the plaintiff is that it was given to the plaintiff by her father under Ext.A1 document dated 11/05/1950. As per the document the property comprised in Sy.No.1818/12/7. But, the Survey number stated in the plaint is 1818/7. A Survey Commission was deputed in the Trial Court who in turn visited the property and based on Ext.A1 document and survey records had located the plaint schedule property having an extent of 27 cents. It was accepted by both the Trial Court and the First Appellate Court. 6. The very case advanced by the defendant is that this property will form part of large extent of property owned by the defendant having an extent of 55 cents covered by a gift deed. Interestingly the ## **SA.No. 575 of 1997 5** gift deed so far not produced by the defendant either to show the acquisition of 55 cents of property by way of gift or to show that plaint schedule will form part of the property received by way of gift. Their case is that the Ext.A1 document is vitiated by impersonation and forgery. _Prima facie_ the said contention will not stand simply on the reason that the defendant is not a person litigating under the father, the executant of Ext.A1 document. So, there cannot be a contention by the defendant that Ext.A1 document executed by the father was brought into existence by playing impersonation and forgery, since he is not a person litigating under the father or claiming any right, title and interest over the property under him. So, prima facie the question of impersonation and forgery will not stand. Further, it is not clear on what capacity the defendant is raising a right, title or interest over the property. The gift deed stands in their favour is so far not produced but kept away from the court for the reason best known to them. At the appellate stage, these two I.A.'s were filed for accepting 6 documents. These are the document showing a prior litigation and the ## **SA.No. 575 of 1997 6** judgment delivered therein, wherein the plaintiff admittedly is not a party. The plaintiff is not litigating under any of the party to the above said proceedings, further these documents were produced at the second appellate stage without framing a substantial question of law due to the non production of these documents. 7. The learned counsel tried to advance a case based on the legal preposition laid down by the Apex Court in _**Deva v.Sajjan Kumar (2003 (7) SCC 481), Rattan Dev v. Pasam Devi (2002 (7) SCC 441), Neelakantan and others v. Mallika Begum (2002 (2)SCC 440), Yadarao Dajiba Shrawane v. Nanilal Harakchand**_ _**Shah and others (2002 (6) SCC 404)**_ that when there is misinterpretation of a documentary evidence or consideration of inadmissible evidence which has resulted in miscarriage of justice it is within the second appellate jurisdiction to go into those questions. As discussed earlier in the instant case, the case advanced by the defendant is mainly on the question of impersonation and forgery. No prayer was incorporated to set aside the said document on any of the vitiating circumstance and the time available for **SA.No. 575 of 1997 7** setting aside the document is hopelessly stood as barred by limitation, as the document is related to the year 1950. Yet another decision also relied on by the learned counsel for the appellant in _**Rosammal**_ ## _**Issetheenammal Fernandez v. Joosa Mariyan Fernandez**_ _**(2000(7) SCC 189)**_ in support of his argument that when execution is denied it is upon the person who claims it as genuine to prove its execution. The same position was also laid down by a subsequent decision of this Court _**Balachandran v. Sujatha**_ _**(2014(1) KLT 82).**_ The legal position settled in above said decisions cannot be applied in the instant case for the reason that denial of execution of a document can be raised by a person who is interested in the property and litigating under the very same executant. It is not available to a stranger who is not litigating under the executant of the document. Infact, that defence is available only to the person who are litigating under the executant of the document. The present defendant is not a person litigating under the father of the plaintiff. It is purely an internal matter available to the person who are litigating under the executant and not to a ## **SA.No. 575 of 1997 8** stranger. 8. Another argument was also advanced by the learned counsel based on the decision drawn in _**Kashi Nath v. Jaganath (2003(8) SCC 740)**_ that when there is inconsistent pleas or self contradiction the court has to presume the contrary. Based on which it was submitted that the plaintiff has got a specific case that the property of the defendant lying adjoining to their registered holding. But, infact the evidence adduced would not satisfy the pleading raised in the plaint. It cannot be traced on an inconsistency. Hence, I could not find any merits in the argument advanced by the learned counsel for the appellant. 9. Yet another issue was raised during the second appellate stage by the learned counsel for the appellant stating that the plaintiff has admitted that she has parted with the entire 27 cents of property to various person. It is not brought into evidence whether the alienations were made prior to the institution of the suit and whether she has reserved any limited right of possession or enjoyment of property. No case of alienation either pleaded or raised in the written statement and as such it is too ## **SA.No. 575 of 1997 9** dangerous to jump into any conclusion at this second appellate stage regarding whether she has parted with right, title and interest over the property prior to the institution of the suit. In the absence of any such contention raised by the defendant specifically and in view of the production of original document of title, I am of the view that it is not a question available to be adjudicated at the second appellate stage. Nothing else was brought to the notice of this court to have an interference with the decree and judgment of both the Trial Court and the First Appellate Court. No substantial question of law much less any question of law brought to the notice of this court and hence appeal deserves only a dismissal. I do so. The appeal is dismissed, but without cost. ## **Sd/-** ## **P.SOMARAJAN** ## **JUDGE** msp //TRUE COPY// P.A. TO JUDGE