# IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 1[ST] DAY OF JULY 2021 / 10TH ASHADHA, 1943
R.S.A.No.758 OF 2020
Judgment and decree dated 28.2.2014 in O.S.No.324/2010 on the file of
the Munsiff's Court, North Paravur
Judgment and decree dated 09.12.2019 in A.S.No.41 of 2016 on the file of the Additional District Court-II, North Paravur
## APPELLANTS/APPELLANTS/PLAINTIFFS 1 AND 3:
- 1 MANY, AGED 63 YEARS, W/O.KARUNAN, VELUTHALIYIL HOUSE, NEAR JEWISH SYNAGOGUE, PALANTHURUTH KARA, CHENDAMANGALAM VILLAGE, PARAVUR TALUK, CHENDAMANGALAM P.O., PIN - 683 512.
- 2 RADHA, AGED 55 YEARS, W/O.MURALI, MADATHIPARAMBIL HOUSE, NEAR MATHOOR JUNCTION, EROOR KARA, NADAMA VILLAGE, KANAYANNUR TALUK, EROOR NORTH P.O., PIN - 682 306.
BY ADV SRI.R.MANOJ
## RESPONDENTS/RESPONDENTS/DEFENDANTS 2 TO 6 &
## PLAINTIFFS 2 AND 4:
- 1 AYYAPPAN, AGED 71 YEARS, S/O.THAMPIKKUTTAN, THALIYATHUPARAMBU HOUSE, NEAR KOKKARNI MOOLA, MANNAM KARA, KOTTUVALLY VILLAGE, PARAVUR TALUK, MANNAM.P.O., PIN - 683 520.
- 2 RAJAN, AGED 57 YEARS, S/O.THAMPIKKUTTAN, THALIYATHUPARAMBU HOUSE, NEAR POURNAMI STOP, PUTHENPALLI KARA, VARAPUZHA VILLAGE, PARAVUR TALUK, VARAPUZHA P.O., PIN - 683 517.
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- 3 CHANDRAN, AGED 51 YEARS, S/O.THAMPIKUTTYAN,
THALIYATHPARAMBU HOUSE, NEAR POURNAMI STOP, PUTHENPALLI KARA, VARAPUZHA VILLAGE, PARAVUR TALUK, VARAPUZHA P.O., PIN - 683 517.
- 4 INDRAN,
- AGED 47 YEARS, S/O.THAMPIKUTTYAN,
THALIYATHPARAMBU HOUSE, OLANADU KARA, VARAPUZHA VILLAGE, PARAVUR TALUK, VARAPUZHA P.O., PIN - 683 517.
- 5 GOPI, AGED 45 YEARS, S/O.THAMPIKUTTAN, THALIYATHPARAMBU HOUSE, NEAR PUTHENPALLI STOP, PUTHENPALLI KARA, VARAPUZHA VILLAGE, PARAVUR TALUK, VARAPUZHA P.O., PIN -683 517.
- 6 OMANA,
- AGED 62 YEARS, W/O.KUNJAN, POKKATHUPARAMBU HOUSE, NEAR JEWISH SYNAGOGUE, PALATHURUTH KARA, CHENDAMANGALAM VILLAGE, PARAVUR TLAUK, CHENDAMANGALAM P.O., PIN - 683 512.
- 7 LEELA, AGED 49 YEARS, W/O.SHAJI, PALAKKAPARAMBU HOUSE, KOTTACHAL, KIZHAKKUMPURAM KARA, CHENDAMANGALAM VILLAGE, PARAVUR TALUK, CHENDAMANGALAM P.O., PIN - 683 512.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28.06.2021, THE COURT ON 01.07.2021 DELIVERED THE FOLLOWING:
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## **[CR]**
## **JUDGMENT**
This appeal is directed against the judgment and decree dated 28.2.2014 in O.S.No.324/2010 on the file of the Munsiff's Court, North Paravur (hereinafter referred to as 'the trial court') as confirmed by the judgment and decree dated 09.12.2019 in A.S.No.41 of 2016 on the file of the Additional District Court-II, North Paravur (hereinafter referred to as 'the first appellate court'). The appellants herein are the plaintiffs 1 and 3 in O.S.No.324/2010 of the trial court. The suit was dismissed and having suffered such a dismissal, the plaintiffs 1 and 3 instituted A.S.No.41/2016 before the first appellate court. The first appellate court concurred with the findings of the trial court and dismissed the appeal. For the sake of brevity, the parties are referred to in this appeal as their status in the original suit unless otherwise stated.
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2. The suit was instituted for partition contending that the plaint schedule property comprising of 4.05 Ares situated in Sy.No.310/1 of Paravur Taluk belonged to the father of the plaintiffs. Apart from the plaintiffs, their father had other children. The 1[st] defendant was his wife and respondents 2 to 8 are his children. The 1[st] defendant expired during the pendency of the first appeal. The 6[th] defendant was in possession of the plaint schedule property. Even though the plaintiffs requested for a partition, the same was not acceded to by the 6[th] defendant on the ground that his father had executed a settlement deed as document No.5490 of Alangad Village in favour of the 6[th] defendant. This document was challenged by the plaintiffs on the ground that their father aged 70 years did not have the disposing capacity to execute such a deed. Hence, the plaintiffs filed the suit for
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cancellation of the settlement deed and also for partition of 4/10 share over the property.
3. The defendants entered appearance contending that the plaintiffs were aware of the settlement deed right from the very beginning in favour of the 6[th] defendant. According to the defendants, their father had sound disposing mind at the time of execution of the respective settlement deed.
4. During the trial of the case, PWs.1 and 2 were examined and marked Exts.A1 and A2 on the plaintiffs' side. DWs.1 and 2 were examined on the defendants' side and marked Exts.X1 and X2.
5. One of the issues framed by the trial court is as to whether the plaintiffs are entitled to get a declaration with respect to the settlement deed No.5490/1996. Based on the evidence, the trial court entered a finding that the deceased father had voluntarily executed the settlement
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deed. It was found that the burden of proof to prove fraud and other vitiating circumstance is on the plaintiffs and they have failed to discharge the burden. On these findings, the learned Munsiff dismissed the suit declining the prayer for partition over the suit property. Challenging the decision of the trial court, the plaintiffs 1 and 3 preferred the appeal. The first appellate court dismissed the appeal confirming the judgment and decree of the trial court. It was found by the first appellate court that the settlement deed was executed following all procedural requirements and the documents cannot be set aside.
6. Heard the learned counsel for the appellants.
7. The learned counsel for the appellants submits that though the judgments of the two courts below are concurrent in nature, they do not reflect adjudication of a wider aspect of law and such shortcoming paves the way for the second appeal. The learned counsel further
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submits that Ext.A2 document very clearly specifies that the property in question devolved on Thampikuttan, the father of the 6[th] defendant and others through a certificate of purchase of Alangad Land Tribunal bearing No.553/72 dated 14.12.1972. The learned counsel for the appellants further submits that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to cosharers in possession. According to the learned counsel, Thampikuttan applied for purchase certificate under the Kerala Land Reforms Act as the head of the family and that a valid purchase certificate issued in favour of Thampikuttan would enure to the benefit of other coowners as well. Thus, it was argued that when the head of the family applies for a purchase certificate, the same was deemed to have been made on behalf of the other coowners also. To prove that, Thampikuttan was only a co-
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owner/trustee of the property, the learned counsel for the appellants has produced the certificate of purchase which was not produced before the courts below as an additional evidence in this appeal. Last but not the least, the learned counsel for the appellants contended that late Thampikuttan was residing with the 6[th] defendant and all medical records relating to his ailment was with the 6[th] defendant.
8. In **Karbalai Begum v. Mohd. Sayeed & another** [AIR 1981 SC 77], the Apex Court held that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Thus, it is contended that even though the other co-owners were not _eo_ nominee parties to the purchase proceedings, as long as the certificates were obtained by a person who was only a co-owner, the rights
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obtained will certainly enure to the benefits of other coowners as well. In **Saidali v. Amina Umma** [1984 KLT SN 58 (Case No.99)], a learned Single Judge of this Court held that, a valid purchase certificate even if obtained by one of the co-owners will certainly enure to the benefit of other co-owners as well presumably for the reason that a co-owner in possession is treated as a trustee for other co-owners as well.
9. A new plea was raised for the first time before this Court, whether the purchase certificate obtained by late Thampikuttan was for and on behalf of other coowners as well. In other words, when the head of the family applies for purchase certificate, the same was deemed to have been made on behalf of other co-owners also. Ext.A2 _inter alia_ would show that late Thampikuttan the father of the 6[th] defendant and others obtained title to the property through a purchase certificate issued by the
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Alangad Land Tribunal bearing No.553/72 dated 14.12.1972. The plea that the rights obtained by Thampikuttan as per the purchase certificate enures to the benefits of other co-owners as well cannot be raised for the first time in second appeal. No such plea has been taken at any stage by the appellants ante or postlite or in the pleadings. In such a situation, the appellants cannot be allowed to raise the question of constructive trust in second appeal. When a mixed question of law and fact is raised for the first time in second appeal touching the construction of a document which was not produced before the trial court, it is not expedient in the interest of justice to entertain such a plea. In a second appeal, it is not open to the High Court to go into the questions which are neither pleaded nor dealt with by the trial court or the first appellate court.
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10. Section 100 of the Code of Civil Procedure, the jurisdiction of the High Court to interfere with the judgment of the courts below is confined to hearing on substantial questions of law. Interference with the finding of facts by the High Court is not warranted if it involves re-appreciation of the evidence on the strength of mixed questions of law and facts. In the case at hand, on the basis of the evidence on record, the trial court and the first appellate court had concurrently arrived at a finding of fact. The High Court, in second appeal, cannot reverse the said concurrent findings, particularly when this Court has not been able to find out any material that the findings of the trial court as well as the first appellate court were palpably erroneous. The High Court, it is well settled, while exercising jurisdiction under Section 100 of the C.P.C. cannot reverse the concurrent findings of facts on the ground that on the facts found by the two courts
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below, another view was possible. To be a substantial question of law involved in the case, there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by courts of facts and it must be necessary to decide that question of law for a just and proper decision of the case. The question whether late Thampikuttan obtained the purchase certificate for and on behalf of all the co-owners is a mixed question of fact and law which cannot be raised first time in second appeal. No substantial questions of law are involved in this case. Hence, this R.S.A. is liable to be dismissed in limine.
For the above reasons, this R.S.A. is dismissed. Considering the facts and circumstances, there will be no order as to costs. Pending applications, if any, stand disposed of.
skj
Sd/- **N.ANIL KUMAR, JUDGE**
