Kalasakkaran Mathi (deceased) v. Kalasakkaran Chemmaran (deceased) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 14TH DAY OF NOVEMBER 2017/23RD KARTHIKA, 1939** **SA.No. 617 of 1997 (F) -----------------------** **AGAINST THE JUDGMENT AND DECREE DATED 15-02-1997 IN AS 106/1992 of SUB COURT, PAYYANNUR** **AGAINST THE JUDGMENT DATED 27-03-1992 IN OS 26/1990 of MUNSIFF COURT, PAYYANNUR** ## **APPELLANT/1ST RESPONDENT/DEFENDANT:** **---------------------------------** *** KALASAKKARAN MATHI (DIED) D/O.ERUVADI AMMA, RESIDING AT KUNHIMANGALAM AMSOM DESOM, PAYYANNUR, KANNUR DISTRICT** **[LEGAL HEIR IMPLEADED AS ADDL. 2ND APPELLANT)** ***2. KALASAKKARAN NARAYANAN, S/O.CHIRUKANDAN, AGED 77 YEARS, RESIDING AT KUNHIMANGALAM, PAYYANNUR, KANNUR DISTRICT.** **[THE LEGAL HEIR OF DECEASED SOLE APPELLANT IS IMPLEADED AS ADDL.2ND APPELLANT AS PER THE ORDER DATED 31.7.2017 IN IA 1256/2017]** **BY ADVS.SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR** **RESPONDENTS/APPELLANTS 1&3, RESPONDENTS 2, 4 TO 8 & LRS OF 3RD RESPONDENT/PLAINTIFFS 1 TO 3 & LRS OF 2ND PLAINTIFF:** **--------------------------------------------------** ***1. KALASAKKARAN CHEMMARAN (DIED) S/O.ERUVADI AMMA, CHERUTHAZHAM AMSOM DESOM, KANNUR DISTRICT [LEGAL HEIRS IMPLEADED AS ADDITIONAL RESPONDENTS 12 TO 17] *2. DO MANICKAM, KUNHIMANGALAM AMSOM DESOM, THAMARAKULANGARA, PO EDANAD KANNUR DISTRICT** **[LEGAL HEIRS IMPLADED AS ADDL. RESPONDENTS 18 TO 23]** **SA.No. 617 of 1997 (F) -----------------------** **2** **3. THEKKEEL NARAYANI, D/O.KALASAKKARAN AMBU, OF DO. DO.** |**4.**|**THEKKEEL PURUSHOTHAMAN,**| |---|---| ||**S/O.KALASAKKARAN AMBU,**| ||**OF DO. DO.**| |**5.**|**DO. PAVITHRAN,**| ||**S/O.KALASAKKARAN AMBU,**| ||**OF DO. DO.**| |**6.**|**DO. BHAVANI,**| ||**D/O.KALASAKKARAN AMBU,**| ||**OF DO. DO.**| |**7.**|**DO. KOUSTHU,**| ||**D/O.KALASAKKARAN AMBU,**| ||**OF DO. DO.**| |**8.**|**DO. SUSHEELA,**| ||**D/O.KALASAKKARAN AMBU,**| ||**OF DO. DO.**| |**9.**|**MADACHERRY MADHAVI,**| ||**W/O. THEKKEEL SREEDHARAN,**| ||**OF DO. DO.**| |**10.**|**MANOJ (MINOR, AGED 16)**| |**11.**|**MANITHA (MINOR, AGED 13)**| ||**(MINORS 10 & 11 BY NEXT FRIED AND GUARDIAN MOTHER**| ||**MADACHERRY MADHAVI, 9TH RESPONDENT)**| |**12.**|**ALINGAL GOVINDAN,**| ||**S/O.KALASAKKARAN CHEMMARAN,**| ||**P.O.EZHILODE, PAYYANNUR, KANNUR DISTRICT**| |**13.**|**ALINGAL JANAKI,**| ||**D/O.KALASAKKARAN CHEMMARAN,**| ||**P.O.EZHILODE, PAYYANNUR, KANNUR DISTRICT**| |**14.**|**ALINGAL KRISHNAN,**| ||**S/O.KALASAKKARAN CHEMMARAN,**| ||**P.O.EZHILODE, PAYYANNUR, KANNUR DISTRICT**| |**15.**|**ALINGAL BHASKARAN,**| ||**S/O.KALASAKKARAN CHEMMARAN,**| ||**CHERUTHAZHAM, P.O.PILATHARA,**| ||**PAYYANNUR, KANNUR DISTRICT**| **SA.No. 617 of 1997 (F) -----------------------** **3** **16. ALINGAL GOPALAN, S/O.KALASAKKARAN CHEMMARAN, CHERUTHAZHAM, P.O.PILATHARA, PAYYANNUR, KANNUR DISTRICT** **17. ALINGAL RAMANI, D/O.KALASAKKARAN CHEMMARAN, NEAR CHAKRAPANI TEMPLE, TRIKKARIPPUR PO, KASARAGOD DISTRICT** **[THE LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 12 TO 17 AS PER THE ORDER DATED 31.7.2017 IN IA 1258/2017]** **18. KALASAKKARI YASODHA, D/O.KALASAKKARAN MANICKAM, KIZHAKKINI, PO KUNHIMANGALAM, PAYYANNUR, KANNUR DISTRICT** **19. KALASAKKARI JANAKI, D/O.KALASAKKARAN MANICKAM, KANDOTH, PAYYANNUR PO, KANNUR DISTRICT** **20. KALASAKKARI RAMANI, D/O.KALASAKKARAN MANICKAM, THEKKUMBAGOM, PO KUNHIMANGALAM, PAYYANNUR, KANNUR DISTRCT** **21. THEKKIL RAJITHA, W/O.KALASAKKARAN SUDHAKARAN, PEROOL, PO KUNHIMANGALAM, PAYYANNUR KANNUR DISTRICT** **22. SUJITH, S/O.KALASAKKARAN SUDHAKARAN, PEROOL, PO KUNHIMANGALAM, PAYYANNUR KANNUR DISTRICT** **23. SUDHI, S/O.KALASAKKARAN SUDHAKARAN, PEROOL, PO KUNHIMANGALAM, PAYYANNUR, KANNUR DISTRICT** **[THE LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 18 TO 23 AS PER THE ORDER DATED 31.7.2017 IN IA 1260/2017]** **R2 BY ADV. SMT.K.P.SANTHI R2 & R17 BY ADV. SRI.O.RAMACHANDRAN NAMBIAR R17 BY ADV.SRI.GEEN T.MATHEW** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J. -------------------------------** ## **S.A.No.617 of 1997** ## **---------------------------------------------Dated this the 14[th] day of November, 2017** ## **JUDGMENT** Legal heir of the defendant in a suit for partition is the appellant. Legal heirs of the plaintiffs are the contesting respondents. The appeal was admitted on the following substantial questions ofc law: - i. Whether the lower appellate court was right in holding that the plaintiffs have right over the plaint schedule property, ignoring the crucial admission made by the plaintiffs in the earlier suit that the plaint schedule property exclusively belongs to the defendant? - ii. Are not the appellants estopped from claiming any right over the plaint schedule property in view of the specific stand taken by them that the plaint schedule property exclusively belongs to the defendant? - iii. Whether the principle of estoppel by conduct and representation applies to the facts and features of the present case? 2. Short facts for disposal of the case are as follows: **SA No.617/1997** **2** Plaint schedule property, along with other items, was in possession of the plaintiffs, defendant and others. They were possessing the property in co-ownership. Earlier, a suit for partition was filed as O.S.No.202 of 1977 before the Munsiff's Court, Payyannur. That suit was decreed. Thereafter, a final decree was passed as per order on I.A.No.472 of 1982 on 22.3.1984, the plaint schedule property was jointly allotted to the share of the plaintiffs and defendant. Accordingly, the plaintiffs are entitled to get ¾ shares in the plaint schedule property and the defendant is entitled to remaining ¼ share. Since the defendant did not heed to the request of partitioning the property, the suit was filed at the instance of the plaintiffs. 3. The contesting defendant filed a written statement disputing the plaintiffs' right to claim partition. According to the defendant, she is in possession of the property with the knowledge of the plaintiffs and she has perfected title over the property by ouster and adverse possession for holding the same for more than 30 years. It is further contended that the plaintiffs are estopped from raising a plea against the right, title and interest of the defendant. **SA No.617/1997** **3** 4. Before the trial court, two witnesses were examined on the side of the plaintiffs and one witness on the side of the defendant. Ext.A1 is the copy of the final decree produced by the plaintiffs. Exts.B1 and B2 are the documents relied on by the defendant. Ext.B1 is the certified copy of the written statement filed by the plaintiffs in O.S.No.202 of 1977. Ext.C1 is the commissioner's report. 5. Learned counsel for the appellant contended that Ext.B1 written statement filed by the plaintiffs in O.S.No.202 of 1997 would show that they have made a candid admission that the plaint schedule property exclusively belonged to the defendant/appellant. It is contended that the admission in the written statement would bind the plaintiffs as a judicial admission and they cannot be permitted to raise any claim in respect of the plaint schedule property, contrary to the clear admissions in Ext.B1. Admittedly, in the earlier suit, the 1[st] defendant (in O.S.No.202 of 1977) is the plaintiff in the present suit. 2[nd] defendant in O.S.No.202 of 1977 is the contesting defendant in the suit. It was the case of the defendant in the suit that she had a leasehold right over the property and that **SA No.617/1997** **4** property was not a co-ownership property available for partition. Learned Munsiff dismissed O.S.No.202 of 1977 by judgment dated 3.3.1979, finding that the suit property was not identified. The trial court found that for non-identification of the property, the plaintiffs therein were not entitled to get any relief. That matter was taken in appeal before the Sub Court, Payyannur. The lower appellate court reconsidered the matter and remanded the case for a fresh disposal. Subsequently, the suit was disposed vide judgment dated 28.8.1981, whereby the suit was decreed as prayed for in the plaint. This judgment has become final. It is interesting to note that the plea of tenancy set up by the defendant in the suit was negatived in the earlier round of litigation between the parties. Notwithstanding the admission by the plaintiffs in the suit that the defendant had a tenancy right, the suit was decreed denying the exclusive right set up by the defendant. 6. In the above context, I shall consider the effect of the admission. Learned counsel for the plaintiffs, relying on **Ramabai Shriniwas Nadgir v. The Government of Bombay and The Government of Bombay v. Narayan Govind Nadgir** **SA No.617/1997** **5** **[AIR 1941 Bombay 144]** , contended that a party is not bound by admission in his pleading, except for the purposes of the suit in which the pleading is delivered. It was further observed that where a party is prepared in a particular suit to deal with the case on a particular ground and makes an admission, that admission is not binding on him in any other suit and certainly not for all time. 7. The above decision was considered by the apex court in **Basant Singh v. Janki Singh and Basant Singh v. Kishundhari Singh [AIR 1967 SC 341]** . In Paragraph 5, law declared are as follows: The High Court also observed that an admission in a pleading can be used only for the purpose of the suit in which the pleading was filed. The observations of Beaumont, C.J. in Ramabai Shriniwas v. Bombay Government lend some countenance to this view. But those observations were commented upon and explained by the Bombay High Court in D.S.Mohlte v. S.I.Mohile. An admission by a party in a plaint signed and verified by him in a prior suit is an admission within the meaning of Section 17 of the Indian Evidence Act, 1872, and may be proved against him in other litigations. The High Court also relied on the English **SA No.617/1997** **6** law of evidence. In Phipson on Evidence, 10[th] Edn, Article 741, the English law is thus summarised: “Pleadings, although admissible in other actions, to show the institution of the suit and the nature of the case put forward, are regarded merely as the suggestion of counsel, and are not receivable against a party as admissions, unless sworn, signed, or otherwise adopted by the party himself.” Thus, even under the English law, a statement in a pleading sworn, signed or otherwise adopted by a party is admissible against him in other actions. In Marianski v. Cairns the House of Lords decided that an admission in a pleading signed by a party was evidence against him in another suit not only with regard to a different subject-matter but also against different opponent. Moreover, we are not concerned with the technicalities of the English law. Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in pleading and other admissions. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true. 8. A learned Single Judge of this Court, before the Supreme Court rendered the decision in **Basant Singh's case,** **SA No.617/1997** **7** followed the decision in **Ramabai Shriniwas Nadgir's case** . However, in the light of the subsequent pronouncement by the apex court in **Basant Singh's case,** the decision in **Narayana Pillai v. Kesava Pillai [1962 KLJ 389],** it cannot be treated as a binding precedent in respect of judicial admissions by a party made in a proceedings. It goes without saying that it can be used by the opposite party even in a subsequent case. The question arising for determination in this case is whether such an admission can be used in the facts and circumstances of this case. As mentioned above, O.S.No.202 of 1977 was decided against the contentions of the defendant as well as the plaintiffs. In other words, setting up of exclusive tenancy right by the defendant in the suit, which was supported by the plaintiffs in the present suit, was rejected in O.S.No.202 of 1977 by the trial court, and the decree has become final. Therefore, the admission by the plaintiffs in this case was not acted upon. The fundamental principles that all admissions can be explained, all admissions can be proved to be erroneous and admissions cannot confer title, have no application to the facts and circumstances of this case because the court repelled the contentions of the **SA No.617/1997** **8** plaintiffs and defendant in that case and found that the property was a co-ownership property available for partition. If the admission made by the plaintiff in the earlier suit is relied on by the defendant in the suit and if that is given effect to, it will have the effect of nullifying the earlier decree passed in the previous round of litigation between the parties. Such a course is not legally permissible. Therefore, the admission in Ext.B1 written statement made by the plaintiffs in the facts and circumstances of this case will have no legal effect. Hence, neither Section 17 of the Evidence Act regarding judicial admission, nor Section 115 of the Evidence Act regarding the principle of estoppal, can be applied in this case. 9. Even though a vague plea regarding ouster and adverse possession have been raised, it was not properly established at the time of trial. Therefore, the question relating to impartibility on account of ouster and adverse possession does not arise. To sum up the discussion, I find that all the substantial questions of law raised can only be decided against the appellant. I find no reason to interfere in the judgment and **SA No.617/1997** **9** decree passed by the court below. Learned counsel for the appellant submitted that the equity claimed in respect of a house in the property wherein appellant is residing was not considered by the court below. It is made clear that the claim for allotment of the house to the appellant/defendant at the time of final decree shall be considered in the final decree and the equitable principles shall be applied to determine the right claimed by the appellant. With these observations, the appeal is dismissed. Sd/- **A. HARIPRASAD JUDGE** JV