Mathai v. Minimol Mathew & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 23[RD] DAY OF AUGUST 2022 / 1ST BHADRA, 1944** ## **RSA NO. 306 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OS 288/2013 OF MUNSIFF COURT, VAIKOM** **AS 194/2017 OF ADDITIONAL DISTRICT COURT - IV, KOTTAYAM** **APPELLANT/APPELLANT/1ST DEFENDANT: MATHAI AGED 68 YEARS S/O MATHAI CHANDY, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK. BY ADV S.MOHAMMED AL RAFI** |**RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 8:**|**RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 8:**| |---|---| |**1**|**MINIMOL MATHEW**| ||**D/O MATHAI CHANDY,**| ||**CHIRACKAL HOUSE,**| ||**AYAMKUDI P.O, AYAMKUDI KARA,**| ||**MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686 613.**| ||**W/O RAO, NOW RESIDING AT ROOM NO.13/IX, MOULANA FLAT, OOTTY**| ||**ROAD, PERINTHALMANNA, MALAPPURAM DISTRICT-679 322.**| |**2**|**JAISAMMA MATHEW,**| ||**D/O MATHAI CHANDY, PALLIYANTHARAYIL HOUSE, KURAVILANGADU**| ||**P.O, AND VILLAGE, MEENANCHIL TALUK,**| ||**KOTTAYAM-686 633**| ||**(OLD ADDRESS -CHIRACKAL HOUSE, AYAMKUDI P.O,AYAMKUDI KARA,**| ||**MUTTUCHIRA VILLAGE,VAIKOM TALUK, KOTTAYAM-686 613.)**| |**3**|**MARY**| ||**W/O CHANDY MATHAI,**| ||**CHIRACKAL HOUSE, AYAMKUDI P.O,**| ||**AYAMKUDI KARA, MUTTUCHIRA VILLAGE,**| ||**VAIKOM TALUK, KOTTAYAM-686 613.**| |**4**|**MATHAI**| ||**S/O CHANDY MATHAI,**| ||**CHIRACKAL HOUSE,**| ||**AYAMKUDI P.O,AYAMKUDI KARA,**| ||**MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686 613.**| |**5**|**SHYJU,**| ||**S/O CHANDY MATHAI,**| ||**CHIRACKAL HOUSE,**| ||**AYAMKUDI P.O,AYAMKUDI KARA,**| ||**MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613.**| R.S.A.No.306/2021 2 - **6 SHIJO, S/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613.** - **7 LIJO, S/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613.** - **8 LEENA, D/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613. BY ADV JOBI.A.THAMPI** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON** **08.08.2022, THE COURT ON 23.08.2022 DELIVERED THE FOLLOWING:** R.S.A.No.306/2021 3 ## **M.R.ANITHA, J** ****************** R.S.A.No.306 of 2021 -------------------------------------------------------Dated this the 23[rd] day of August, 2022 ## **JUDGMENT** This Regular Second Appeal has been filed against the judgment and decree in A.S.No.94/2017 on the file of Additional District Judge-IV, Kottayam which arouse out of the judgment and decree in O.S.No.288/2013 on the file of the Munsiff's Court, Vaikom. 2. The appellant is the first defendant in O.S.No.288/2013 and the parties would hereafter be referred as per their status before the trial court. The suit was one for recovery of possession, partition and permanent prohibitory injunction. Plaintiff and defendants 1 and 2 are the children of late Mathai Chandi and defendants 3 to 8 are the wife and R.S.A.No.306/2021 4 children of the deceased son of Mathai Chandi. The parties are governed by he provisions of the Indian Succession Act. Plaint schedule property was obtained by late Mathai Chandi as per settlement deed No.1267/1954, sale deed No.3369/1986 and 2177/1963. Parents of the plaintiff and defendants 1 and 2 are no more. The deceased Mathai Chandi originally owned 131.5 cents of property and except the plaint schedule property, he transferred all the properties during his lifetime. Father agreed to grant 24 cents of property in favour of the plaintiff and it was informed to all children by the father. But, father died without executing any document as agreed in favour of the plaintiff. After the death of parents and brother, there was a settlement by which it was decided to grant 24 cents of property to the plaintiff as part of her share and the remaining property to be partitioned between the defendants 1 to 8 but the first defendant is not amenable to grant 24 cents in favour of the plaintiff. On 03.11.2013, first defendant also attempted to cut and remove the trees in the plaint schedule property. Hence the suit has been R.S.A.No.306/2021 5 filed. 3. First defendant alone contested the suit by filing written statement contending that the description of the plaint schedule property is incorrect and the extent of property available for partition is only 9 cents and virivu. The family settlement alleged is denied. It is also contended that since the father died intestate the plaint schedule property is to be partitioned equally and first defendant is entitled to get ¼ share out of the plaint schedule property. 4. PW1 to PW6 examined and Exts.A1 to A4 were marked from the side of plaintiff. DW1 examined and Exts.B1 to B4 were marked from the side of defendants. Ext.C1 to C2(a) were also marked. 5. Learned Munsiff, on evaluating the facts and circumstances and evidence adduced, found that the plaintiff has not succeeded to prove that she is entitled to get 24 cents out of the plaint schedule property as per family settlement. However, it is found that 35.600 cents of property demarcated by the R.S.A.No.306/2021 6 Commissioner is available for partition and plaintiff being one of the legal heirs of late Mathai Chandy is entitled for ¼ share out of the plaint schedule property. Against which A.S.No.194/2017 has been filed. 6. Learned Additional District Judge on re-appreciating the facts and circumstances confirmed the judgment and decree passed by the trial court and dismissed the appeal. Aggrieved by the same, appellant/1[st] defendant approaches this court in second appeal. 7. Notice was duly served upon all the respondents and first respondent/1[st] defendant alone is contesting the matter. 8. Plaintiff's case is that the plaint schedule property is part and parcel of 1 Acre 31.5 cents of property owned by father Chandy Mathew, out of which 48 cents were given to the deceased brother Baby Alexander as per Ext.A4 and 24 cents to the appellant/1[st] defendant as per Ext.B1 and 21 cents to the mother who assigned the same later to the first defendant. So plaint schedule property was originally described as 44.5 cents of R.S.A.No.306/2021 7 property and subsequently it was amended as 35.600 cents as per the Commissioner's report and plan. 9. The contention of the appellant/the first defendant, on the other hand, is that their father late Mathai Chandi was owner in possession of 102 cents of property out of which he transferred 48 cents to his son Baby @ Alexander, the predecessor-ininterest of defendants 3 to 8. Thereafter, he transferred 24 cents to the appellant who transferred the same to his wife by settlement deed. Late father also transferred 21 cents of property to his wife by settlement deed. Mother transferred the said property to the appellant by executing settlement deed No.2087/06. So, according to him, balance property remained is only 9 cents and virivu and he also stoutly denied the family settlement in which there was an agreement to transfer 24 cents to the plaintiff. 10. It has been found by the learned Munsiff that the plaintiff could not prove any such agreement for transfer of 24 cents and the relief sought by the plaintiff for allotment of such R.S.A.No.306/2021 8 24 cents was negatived and there was no further challenge of that matter by the plaintiff. To resolve the dispute with respect to the extent of land remained with the father after settling the properties, a Commission was taken at the instance of plaintiff and Commissioner's report and plan has been marked as Exts.C2 and C2(a). Though the plaintiff originally described total extent of property held by the father as one acre 17 cents, on measurement the total extent of property was found to be 127.940 cents. So also, the plaintiff originally claimed the total property left by the father as 44½ cents. But on measurement of property by the Commissioner with the help of Taluk Surveyor the extent of property left was also found to be 35.600 cents and subsequent to the finding of the Commissioner's report and plan the extent of plaint schedule property was accordingly amended as 35.600 cents. It has been concurrently found by the learned Munsiff as well as the first appellate court that the plaint schedule property of 35.600 cents is partible and the plaintiff is entitled for ¼ share. R.S.A.No.306/2021 9 11. The main contention of the learned counsel for the appellant is with regard to the prejudice caused to the appellant in disallowing the petition filed by the appellant under Order 41 Rule 27 for receiving additional document which was executed by late father in the year 1963. It is also his contention that the plaintiff amended the plaint schedule during the appellate stage and only the prayer of the defendant to receive the additional document has been refused by the first appellate court. It is contended that, as per the additional document sought to be produced from the side of the appellant, the father has sold 12.14 Ares of property as per document No.4462/1963 and if that property is left out, there would be only 2 cents of property available for partition. It is true that the appellant produced additional document No.4462/1963 of S.R.O Kaduthuruthi during the first appellate stage along with a petition to receive the same and his contention is that during the life time of father, father assigned 12.14 Ares of property to one Varkey and that document could not be produced due to oversight. R.S.A.No.306/2021 10 12. The plaintiff, on the other hand, seriously objected in receiving the additional document and according to her property covered by that document is not part of the plaint schedule property. It is seen that the document is a 'melotti aadharam' executed by the late Mathai Chandi in favour of one Varkey in the year 1963 for a period of 2 years with a condition that after the period on receiving the mortgage amount, the property is to be surrendered without any objection. So, probably this mortgage created by late Mathai Chandi might have been redeemed within the period stipulated in the document. That may be the reason why no specific contention has been raised by the defendant in the written statement with respect to this deed. Moreover, such mortgage deed has been described as an assignment deed by the first defendant to contend that 12.14 Ares of property has been sold to Varkey. Above all, since no specific contention has been raised in the written statement with regard to this deed or the alleged assignment, the first defendant is not entitled to raise any claim with respect to that document at the time of appellate R.S.A.No.306/2021 11 stage. In this context, it is relevant to quote **Elizabeth v. Saramma : 1984 KLT 606 : 1984 KHC 286** wherein a learned Single Judge of this Court observed that the pleadings that lead to the framing of issues and a trial in every civil case has inevitably to be confined to the issues framed in the suit. The whole object of framing issues would be defeated if parties are allowed to travel beyond the issues and claim or oppose reliefs on grounds not made in the pleadings and not covered by the issues. In that decision, **Lakshmi Narain v. State : AIR 1977 Patna 73** has been quoted wherein a Division Bench of Patna High Court had occasion to consider the objects and purpose of pleadings of Order 6 Rule 2 and Order 8 Rule 2, 3 and 4 of the Code of Civil Procedure and it has been observed by the Division Bench that the “sole object of the pleading is, as was pointed out by the Privy Council in (1895) 22 Ind App 4 (PC) that each side may be fully alive to the question that are about to be argued in order that they may have an opportunity to bringing forward such evidence as may be appropriate. **Siddik Mohammed Shah** R.S.A.No.306/2021 12 **v. Mt.Saran : AIR 1930 PC 57** also has been quoted wherein it has been observed that wherein a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. 13. Hence it is well settled that without pleadings parties cannot be permitted to adduce evidence with respect to a particular fact. So also, if the argument of the Learned counsel is accepted and it is taken for granted that 12.14 Ares of property has been assigned by the father during his life time there would not be any balance property at all available for partition. So, at any rate, the contention of the first defendant that prejudice has been caused due to dismissal of I.A.No.01/2020 by the first appellate court in not receiving the additional document does not require any consideration at all. 14. The next contention of the Learned counsel was with regard to allowing of amendment application filed by the plaintiff at the appellate stage. On perusing the records, it is seen that amendment has been carried out as per the order in R.S.A.No.306/2021 13 I.A.No.1805/2018 filed before the District Court, Kottayam on 02.12.2019 by which the extent of plaint schedule has been corrected as 35.600. But, it is discernible from the judgment passed by the trial court itself that a contention was advanced from the side of the first defendant that there is no specific pleading with respect to the extent of property and the description of the property is not sufficient to identify the same and the learned Munsiff noted that though the plaintiff carried out the amendment with respect to the extent of plaint schedule property in the body of the plaint, no amendment was carried out in the plaint schedule. But, rightly the learned Munsiff concluded that it has been proved that the plaint schedule property is having an extent of 35.600 cents as per the Commissioner's report and plan but the fact that amendment was not carried out in the plaint schedule is not a reason to dismiss the suit. So, at the appellate stage, plaintiff filed I.A.No.1805/2018 and the first appellate court allowed the application to carry out the amendment in the plaint schedule as 35.600 cents instead of R.S.A.No.306/2021 14 44½ cents. On going through the plaint, it is seen that in the body of the plaint in paragraphs 3, 4 and 6, the plaintiff has amended the extent of plaint schedule property as 35.600 instead of 44½ cents as per the order in I.A.No.1512/2016 dated 05.11.2016. So, it would go to show that though amendment was effected in the body of the plaint with respect to the extent of plaint schedule property as per the Commissioner's report and plan plaintiff omitted to make suitable amendment in the plaint schedule. So, that has been permitted to be amended at the appellate stage. Since the extent of plaint schedule property has been amended in the body of the plaint during the trial stage itself, the amendment carried out in the plaint schedule at the appellate stage cannot be said to have caused any prejudice to the first defendant. So, at any rate, the request of the learned counsel for remand of the case for permitting him to produce the additional document does not require any consideration at all. 15. On evaluating the evidence adduced from both sides, it has come out that late Mathai Chandi, the father of the first R.S.A.No.306/2021 15 defendant and the plaintiff left out 35.600 cents of property scheduled in the plaint without alienation. The dispute of the first defendant originally was that only 9 cents and virivu of property is available for partition. From Exts.A1 to A3 documents the extent of property in total is found to be 1.17 acres out of which 48 cents was gifted as per Ext.A4 to Baby @ Alexander, the father of defendants 3 to 5. He also transferred 24 cents of property to first defendant as per Ext.B1 settlement deed and as per Ext.B2 the first defendant transferred this property to his wife by executing the settlement deed. Late Mathai also transferred 21 cents of property to his wife as per Ext.B3 gift deed and she in turn transferred the said property as per Ext.B4 settlement deed to the first defendant. The total extent of property as per Exts.A1 to A3 was only 117 cents. But Commissioner could identify 127.940 cents and the plaint schedule property is also identified as 35.600 cents instead of 44½ cents shown as the plaint schedule property originally. The Advocate Commissioner and Surveyor had examined PW5 and PW4 and it has been proved R.S.A.No.306/2021 16 that the property available for partition is 35.600 cents. The first defendant who alone was contesting was mainly disputing the extent as 9 cents of virivu and it has been concurrently found by the two fact finding bodies that the property left out is 35.600 cents. Plaintiff being one of the co-sharers is entitled for ¼ share of the plaint schedule property. So, I do not find any illegality or irregularity in the said concurrent finding of fact entered into by the courts below. Hence the appeal is found to be devoid of any merit. In the result, the appeal dismissed. Sd/- ## **M.R.ANITHA, JUDGE** jsr