P.K. Appukuttan Nair v. K.N. Sreekumar

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930** **FAO.No. 205 of 2003()** **---------------------** **AS.118/1997 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.1038/1993 of I ADDL.MUNSIFF COURT.,TRIVANDRUM** **....................** ## **APPELLANT: (DEFENDANT IN THE TRIAL COURT AND RESPONDENT IN THE LOWER APPELLATE COURT.** **-------------------------------------------------------------------------------------------------------------** **1. P.K. APPUKUTTAN NAIR, RESIDING AT KANNANKARA KAVIL VEEDU, PANAVILA ROAD, CHANGAZHASSERI VILLAGE, THIRUVANANTHAPURAM. (DIED)** ## *** ADDL. APPELLANTS 2 TO 5 IMPLEADED** **ADDL. APPELLANT NO.2: R.CHANDRIKADEVI. W/O.N.BALAGOPAL, RESIDING AT T.C.NO.26/1343, KANNANKARA KADAYIL VEEDU, PANAVILA ROAD, TRIVANDRUM-1.** **ADDL. APPELLANT NO.3: P.GIRIJA, W/O.B.VIKRAMAN, -DO.- -DO.-** **ADDL. APPELLANT NO.4: S.MEENAMBIKA,** **W/O.LATE A .K.CHANDRASEKHARAN NAIR, T.C.20/119-1, MELERANNOOR, KARAMANA, TRIVANDRUM.** **ADDL. APPELLANT NO.5: DIVYA, MINOR AGED 14, D/O.S.MEENAMBIKA, REPRESENTED BY HER MOTHER S.MEENAMBIKA.** *** ADDL. APPELLANTS 2 TO 5 IMPLEADED AS THE L.R.'S OF THE DECEASED SOLE APPELLANT AS PER THE ORDER DATED 01/10/2007 IN I.A.NO.2995/07.** **BY ADV. SRI.K.B.PRADEEP** **RESPONDENT:(PLAINTIFF IN THE TRIAL COURT AND APPELLANT IN THE LOWR APPELLATE COURT).** **-------------------------------------------------------------------------------------------------------------------** **K.N. SREEKUMAR, SREELAYAM, T.C.16/574, KOCHAR ROAD, JAGATHI, THIRUVANANTHAPURAM FROM CHAMAVILA VEEDU, CHENGAZHASSERI VILLAGE, THIRUVANANTHAPURAM.** **BY ADV. SRI.G.S.REGHUNATH** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 04/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Rs/** ## **M.N.KRISHNAN, J ===================== FAO No.205 OF 2003** ## **=====================** ## **Dated this the 4th day of December 2008** ## **JUDGMENT** This first appeal is preferred against the judgment of the III Addl.District Court, Thiruvananthapuram in A.S.No.118 of 1997. The said appeal was preferred against the judgment and decree in O.S.No.1038 of 1993 of the I Addl.Munsiff's Court, Thiruvananthapuram. The brief facts necessary for the disposal of the case are stated as follows: The suit is one for declaration, recovery of possession, fixation of boundary and for injunction. It is the case of the plaintiff that he has got an extent of 24 cents of property by virtue of a partition deed of the year 1958. According to him, 3.85 cents of property was assigned in favour of kudikidappukars and 3.5 cents of property was acquired by the Government and the remaining property is the plaint A schedule property. Plaint B Schedule property is the property alleged to be trespassed by the defendant for which the relief of recovery of possession is sought. Plaint C Schedule property is the property which is A-B and for that property, the plaintiff is seeking a relief of injunction. According to the plaintiff, the defendant had trespassed into a FAO 205/2003 -:2:- portion of the property and is attempting to interfere with the peaceful possession of the rest of the property and that has necessitated in filing the suit. Before the appellate court, the plaintiff moved two applications, one for amendment of the plaint and another for reception of documents. The amendment of the plaint was sought for on the ground that subsequent to the dismissal of the suit the defendant had further trespassed into a portion of plaint A Schedule property. The other application was filed for the purpose of receiving the document of title, viz., the partition deed No.1412/1958 along with other documents. The contention of the defendant is that the plaintiff is not entitled to any relief at all and in paragraph 5 of the written statement it is averred in a very evasive way that “in fact the plaintiff has no title over any property to be recovered from anybody else”. But, in paragraph 9 it is specifically stated that apart from the puramboke land a portion of the property of the plaintiff which is in the possession of the defendant has been with him right from the date he constructed the building on 1.5.1959 and therefore he seeks for perfection of his title by adverse possession and limitation as well. 2. In the trial court, the learned Munsiff held that the plaintiff has not produced his document of title and a copy which was produced is not an authenticated copy which is acceptable and therefore held that the suit FAO 205/2003 -:3:- cannot be decreed for want of title and further held that the property has not been identified so as to order recovery of possession. In the appellate stage, documents were produced and they had been received in evidence by the said appellate court. The appellate court after allowing the petition for amendment and on receiving the documents, thought it necessary that the matter has to be sent back to the trial court for fresh consideration in the light of the documents produced and amendment prayer for. The amendment seeks a further recovery of possession which is alleged to have taken place after the suit's dismissal by the lower court. 3. At the outset, I may like to lay down the points. In a suit for recovery of possession on the strength of title the plaintiff has to win the case only on the basis of the documents or evidence relied on by him. Similarly, it is equally important by reading the entire averment in the plaint and written statement one has to find out whether there is a denial of title of the plaintiff over the plaint schedule property. I am not elaborating much on this point for the reason that if the matter has to go back the observations made by me shall not prejudicially affect one of the parties. Under order 41 Rule 27 of the C.P.C. ordinarily the parties to the appeal are not at liberty to produce additional evidence. But, it is laid down there that the party seeking to produce additional evidence, establishes that FAO 205/2003 -:4:- notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce the judgment, or for any other substantial cause. A number of decisions are cited by the learned counsel for the appellant regarding the para metres on which a document can be received in evidence. He had specifically referred to the decisions of the Apex Court reported in State of Gujarat v. Mahendrakumar Parshottambhai Desai(2006) 9 SCC 772), Govindan v. Raman(1993(1) KLT 16(Case No.22) and also in State of Rajasthan v. T.N. Sahani and others(2001) 10 SCC 619). A perusal of these decisions would establish that the production of a document under Order 41 Rule 27 cannot be a routine affair and the court without application of mind cannot receive those documents and the court shall not make it as a ground for one of the parties to fill up the lacuna of the case which is conducted by the party before the trial court. With these principles in mind I analyse the case. The plaintiff claims title to the property by virtue of a document of the year 1958. There was previous litigation filed by the plaintiff against the 3[rd] person and in that cases this document was produced which was found in favour of the plaintiff and the FAO 205/2003 -:5:- copy of the said judgment is seen produced as Ext.A2 in the case. The plaintiff also produced a copy of this document, as it was not authenticated, it was not accepted. One cannot simply find fault with the plaintiff because pleading of the defendant is also not precise to the effect that he totally denied the title of the plaintiff. A reading of paragraph 9 of the written statement would create a doubt in the mind of the court that the defendant is admitting the title of the plaintiff. So, naturally there was a state of confusion. But,when the trial court rejected the case on the ground of document it became necessary for him in the appellate stage to produce the document. It is not a new document. It became necessary because of the observations made by the trial court. In a suit of this nature, where it is one for recovery of possession on the strength of title, it is aways desirable that that document is looked into and the property is identified with respect to that document and a decision is taken. In this case, the scope of the litigation narrows round to the following. Initially one has to find out whether the plaintiff is the title holder of plaint A schedule property. Then one has to find out whether plaint B schedule forms part of A schedule and also by virtue of the amendment allowed by the appellate court, the portion alleged to have trespassed upon later also forms a part and parcel of A schedule. If it is found that the plaintiff's title does take in plaint A schedule FAO 205/2003 -:6:- property then the next question arises whether the defendant has perfected his title by adverse possession and limitation as contended by him in the written statement. I make it very clear that it is not to declare the title of the defendant such a finding is necessary, but such a finding is absolutely necessary to consider the question whether the plaintiff will be entitled to the relief for recovery of possession if his right is lost by adverse possession and limitation. Allowing of amendment application as well as reception of documents come under the category of the wording or any other substantial cause, therefore I do not want to disturb the finding rendered by the learned District Judge in that regard. With these discussions, I find that there is nothing to interfere with the decision rendered by the court below. But, I make it very clear that the case has to be proceeded for determination of the points discussed by me in the previous paragraphs and also by permitting the plaintiff to take out a Commission to identify the property so that the matter can be settled once for all. FAO is disposed of accordingly. ## **M.N.KRISHNAN, JUDGE** ## **Cdp/-** FAO 205/2003 -:7:-