K. Pottiammal @ Maniammal; Chinnadurai; S. Ganesan; S. Rajammal; Veluchamy v. S.G. Mani Puthoor Gramam; S.G. Murukan

R.S.A.No.1000 of 2005 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 19[TH] DAY OF APRIL 2024 / 30TH CHAITHRA, 1946** **RSA NO. 1000 OF 2005** **AGAINST THE JUDGMENT DATED 30.10.2004 IN AS NO.69 OF 2004 OF ADDITIONAL DISTRICT COURT (ADHOC-I), THODUPUZHA ARISING OUT OF THE JUDGMENT DATED 31.07.2000 IN OS NO.5 OF 1998 OF MUNSIFF COURT, DEVIKULAM** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** - **1 K.POTTIAMMAL @ MANIAMMAL W/O.LATE SUBRAMANI,PUTHOOR GRAMAM, KANTHALLOOR.** - **2 CHINNADURAI, S/O.LATE SUBRAMANI DO. DO.** - **3 S.GANESAN, S/O.LATE SUBRAMANI DO. DO.** - **4 S.RAJAMMAL, W/O.RAMER DO. DO.** - **5 VELUCHAMY, S.O.LATE SUBRAMANI DO. DO.** **BY ADV.SMT.SUMATHI DANDAPANI (SR.) SRI MILLU DANDAPANI** ## **RESPONDENTS/APPELLANTS/PLAINTIFFS:** - **1 S.G.MANI PUTHOOR GRAMAM, KANTHALLOOR VILLAGE, DEVIKULAM TALUK.** - **2 S.G.MURUKAN, S/O.LATE GURUSWAMY ASARY PUTHOOR GRAMAM, KANTHALLOOR VILLAGE, DEVIKULAM TALUK.** **BY ADVS.SRI.VIJAYAN SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SRI.K.N.PRAMOD KUMAR MENON SMT.REENA THOMAS** ## **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD** **18.12.2023, THE COURT ON 19.4.2024 DELIVERED THE FOLLOWING:** R.S.A.No.1000 of 2005 2 ## **T.R. RAVI, J.** **-------------------------------------------R.S.A.No.1000 of 2005 -------------------------------------------Dated this the 19th day of April, 2024** ## **JUDGMENT** This Second Appeal has been filed by the defendants in a suit for injunction. The trial court dismissed the suit and the First Appellate Court reversed the judgment of the trial court. The appeal has been admitted on the following questions of law; 1. Has not the lower appellate court erred in relying on photocopies and true copies of documents produced at the appellate stage for want proof? 2. Has not the lower appellate court erred in holding that there is nothing to show any right of possession of the plaint schedule property having been exercised by the defendants, mainly relying on Exhibit A2 - photocopy of a sale deed (wrongly mentioned as Exhibit A3 in paragraph 11 of the Judgment in A.S.No.69/04) especially when the plaintiffs themselves challenged Exhibit A 2 as a forged Sale deed? 3. Has not the lower appellate court erred in appreciating the pleadings and evidence in its correct perspective and in passing a decree in favour of plaintiffs by reversing the findings of fact of trial court R.S.A.No.1000 of 2005 3 which had the opportunity to see and assess the demeanor of witnesses? 2. The facts are as follows; The plaint schedule property belonged to the predecessor-ininterest of the plaintiffs. The suit was filed in 1998, praying for a decree of injunction against the defendants, contending that after the death of their father, the plaintiffs continued in possession and that the defendants attempted to trespass into the property. The defendants claimed that the father of the plaintiffs had executed an agreement with the father of the defendants in 1978, agreeing to sell the plaint schedule property. Ext.B1 is the agreement. It is contended that the entire sale consideration had been received by the father of the plaintiffs, but the document had not been executed since the parties were relatives, and the basic tax of the property was also being paid by the defendants. The agreement relied on by the defendants was executed 20 years prior to the suit. 3. Originally, before the trial court, Ext.A1 was the only document produced on the side of the plaintiff which is a basic tax receipt issued on 29.12.1997 in the name of Smt.S.G.Maniyammal. On the side of the defendants Exts.B1 R.S.A.No.1000 of 2005 4 and B2 series and Ext.B3 have been produced. Ext.B1 is the agreement dated 27.2.1978 between the predecessors of the parties. Ext.B2 series are all basic tax receipts ranging from 1978 to 1997 and Ext.B3 is the copy of the electoral card No.8 of Ward No.2 in the name of Subramaniam, the predecessor of the defendants and others. The plaintiffs were examined as PW1 and PW2, the 2[nd] defendant was examined as DW1 and the attestor of Ext.B1 agreement was examined as DW2. The trial court dismissed the suit finding that the plaintiffs were not able to establish their case of possession since the suit was only for injunction against trespass. 4. Aggrieved by the judgment and decree of the trial court, the plaintiffs preferred an appeal before the First Appellate Court. The First Appellate Court reversed the decree relying on the documents which have been produced at the appellate stage. The main contention of the appellants before this Court is that the First Appellate Court ought not to have accepted the documents in evidence going by the requirement of Order XLI Rule 27 of the Code of Civil Procedure, 1908. It is hence submitted that the judgment of the First Appellate Court is liable R.S.A.No.1000 of 2005 5 to be interfered with. Reliance was placed on the judgment of the learned Single Judge of this Court in **Navabharath Kuries & Trading Co. v. C.E.Job & Ors.[2007 (1) KLJ 22]** and the judgment of the Hon'ble Supreme Court in **Malayalam Plantations Limited v. State of Kerala & Anr. [(2010) 13 SCC 487]** . The counsel for the respondents/plaintiffs sought to justify the judgment of the First Appellate Court by contending that the trial court had gone wrong in finding in favour of the defendants solely based on an unregistered agreement to sell. It is contended that no title passes on the execution of an agreement to sell and no claim under Section 53A of the Transfer of Property Act can also be raised by the defendants. Reliance was placed on the judgment of the Karnataka High Court in **Chandramma Manjunatha v. Kalamma [2022 KHC 5539]** , the judgment of the Bombay High Court in **Ghanshyam Deoram Gaikwad v. Samshon John Gaikwad & Anr. [2020 KHC 3443]** , judgments of the Hon'ble Supreme Court in **Kusum Ingots & Alloys Ltd. v. Union of India & Anr. [(2004) 6 SCC 254], Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Anr. [2011 KHC 4913]** and **Balram Singh v. Kelo** R.S.A.No.1000 of 2005 6 ## **Devi [2022 LiveLaw (SC) 800]** ## . 5. I have heard the counsel on either side in extenso and considered the contentions raised and the judgments relied on. 6. On going through the records, it is clear that the Appellate Court had accepted the additional evidence in the form of Exts.A2 to A20 and Exts.B4 to B7. Many of the documents are photocopies. From the records of the case, it is seen that there is not even an order on the application for the production of documents as required under Order XLI Rule 27 CPC. There is no consideration of any of the aspects that are required to be considered while permitting additional evidence to be adduced at the appellate stage. It is seen that the application for the production of documents was filed along with an affidavit that did not even contain the ingredients of Order XLI Rule 27 CPC and an objection stating that the requirements of Order XLI Rule 27 CPC have not been met, had been filed by the defendants. The documents are seen to have been marked even without an order on the petition, on merits. The First Appellate Court has hence gone wrong in accepting additional evidence at the appellate stage even without a proper application and without even R.S.A.No.1000 of 2005 7 examining anybody to prove the documents. The said procedure followed is wrong and no reliance could have been placed on any of the documents accepted at the appellate stage. The judgments in **Malayalam Plantations Limited** (supra) and **Navabharath Kuries** (supra) justify the above conclusion. The judgments relied on by the counsel for the respondents relate to the merits of the contentions of the parties. I do not propose to go into the merits, having found that the procedure followed by the First Appellate Court in accepting evidence was wrong. I have also gone through the documents to satisfy myself as to whether the said documents are required for a proper decision in the case on hand. I am of the opinion that the matter requires to be remanded back for fresh consideration by the Appellate Court, after affording an opportunity to produce additional evidence. 7. In the above circumstances, this appeal is allowed. The judgment and decree in A.S.No.69 of 2004 on the file of the Additional District Court (Adhoc-I), Thodupuzha is set aside and the case is remanded back to the Appellate Court for fresh consideration and disposal of A.S.No.69 of 2004. The parties are R.S.A.No.1000 of 2005 8 at liberty to apply for permission to produce additional evidence at the appellate stage. The application for the production of additional evidence shall be considered in accordance with Order XLI Rule 27 CPC by the Appellate Court. The parties are directed to appear before the First Appellate Court on 22.05.2024. **==> picture [320 x 64] intentionally omitted <==** Sd/- **T.R. RAVI JUDGE** dsn R.S.A.No.1000 of 2005 9 ## **RESPONDENTS’ EXTS:** |EXT.A21:|COPY OF THE JUDGMENT IN|OS No.10/1998 OF MUNSIFF’S|OS No.10/1998 OF MUNSIFF’S| |---|---|---|---| ||COURT, DEVIKULAM||| |ANNEXURE A22:|<br>CERTIFIED COPY OF <br>**JUDGMENT**<br>DATED 22.01.2001 IN OS||| ||No.240/1998 OF MUNSIFF’S COURT, DEVIKULAM||| |ANNEXURE A23:|CERTIFIED COPY OF <br>**DECREE**<br>||DATED 22.1.2001 IN OS| ||No.240/1998 OF MUNSIFF’S COURT, DEVIKULAM.|||