R. Chandrabhanu v. R. Vijayakumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 18TH DAY OF SEPTEMBER 2017/27TH BHADRA, 1939** **RSA.No. 200 of 2017 () -----------------------** **AGAINST THE JUDGMENT AND DECREE DATED 07-09-2016 IN AS 11/2015 of ADDITIONAL DISTRICT COURT-IV, THODUPUZHA** **AGAINST THE JUDGMENT AND DECREE DATED 31-10-2014 IN OS 252/2013 of MUNSIFF COURT, THODUPUZHA** ## **APPELLANT/APPELLANT/DEFENDANT:** **------------------------------** **R.CHANDRABHANU, AGED 63 YEARS, S/O.RAJAPPAN NAIR, MANAPPATT HOUSE, VENGALLOOR KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK, PIN-685584.** **BY ADVS.SMT.MEENA.A. SRI.VINOD RAVINDRANATH SRI.SAJU.S.A SRI.K.C.KIRAN SRI.M.DEVESH SRI.VINAY MATHEW JOSEPH SRI.ASHWIN SATHYANATH** **RESPONDENT/RESPONDENT/PLAINTIFF:** **--------------------------------** **R.VIJAYAKUMAR, AGED 66 YEARS, S/O.RAJAPPAN NAIR, MANAPPATT HOUSE, VENGALLOOR KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN-685584.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/-** ## **B. KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` R.S.A. No.200 of 2017 F ````````````````````````````````````````````````````````````` _Dated this the 18[th] day of September, 2017_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Challenging the concurrent findings entered by the Munsiff's Court, Thodupuzha in OS No.252/2013 followed by those of the Additional District Court-IV, Thodupuzha in AS No.11/2015, the defendant has come up in Second Appeal. 2. The suit is one for declaration of the ownership of the plaintiff over the plaint schedule building and for recovery of possession of the said building from the defendant and also for recovery of damages for unlawful occupation. 3. The case of the plaintiff is that the properties including the plaint schedule property belonged to Manappattu family of which the plaintiff is also a member. The family property was partitioned through Ext.A1 partition RSA.200/2017 : 2 : deed of 1985. The plaint schedule property was allotted to the share of one R.Mohan Kumar, who is one of the brothers of the plaintiff. The said R.Mohan Kumar thereafter, sold the property to the mother through Ext.A2 sale deed of 1989. Subsequently, the mother gifted the properties to the plaintiff through Ext.A3 gift deed of 1994. The plaintiff has accepted the gift and has allegedly become the owner of the property. Since the plaintiff was doing business in UK, he had permitted the defendant, being his younger brother, to occupy the building. Thereafter, through Ext.A9 lawyer's notice dated 14.12.2012, the plaintiff had revoked the licence granted to the defendant to occupy the building and demanded surrender of vacant possession of the building. Ext.A9 evoked a response in the form of Ext.A12 by the defendant. According to the plaintiff, through Ext.A12, the defendant had forwarded untenable contentions and has not cared to surrender the vacant possession of the building and hence, the suit. RSA.200/2017 : 3 : 4. The defendant filed a written statement contenting, _inter alia_ , as follows:- It is not correct to state that the plaint schedule property was allotted to the share of R.Mohan Kumar in the partition. It is false to state that Mohan Kumar had sold the property to the mother. It is contended that the said Mohan Kumar was mentally ill and he was unable to create any document. If at all Ext.A2 sale deed was executed by him, the same is _void ab initio_ . The plaintiff has never obtained title or possession over the plaint schedule property. The mother had no tittle to convey through Ext.A3. 5. No oral evidence was adduced by either side. Exts.A1 to A12 were marked on the side of the plaintiff and Exts.B1 to B6 were marked on the side of the defendant with consent of either side. The trial court decreed the suit in favour of the plaintiff, as prayed for. Aggrieved by the said judgment and decree, the defendant preferred A.S No.11/2015 before the lower appellate court. The lower RSA.200/2017 : 4 : appellate court also concurred with the findings entered by the learned Munsiff and dismissed the appeal with costs, and hence, this Second Appeal. 6. Heard the learned counsel for the appellant on the question of admission. The learned counsel for the appellant has supplied the copies of the plaint as well as the written statement in the suit. 7. It has clearly come out that there was an earlier suit filed by the defendant, who is the appellant herein, against the plaintiff and other members of the family, seeking partition of the properties including the plaint schedule property, as OS No.439/1991 of the Subordinate Judge's Court, Thodupuzha. The said suit was dismissed through Ext.A6 judgment and Ext.A7 decree, thereby finding that the family property had already been partitioned through Ext.A1 herein. Ext.A1 herein was Ext.B1 in Ext.A6 judgment. The validity of Ext.A1 partition deed herein was clearly upheld in Ext.A6 judgment. Challenging Ext.A6 RSA.200/2017 : 5 : judgment and Ext.A7 decree, the appellant herein had preferred AS No.272/1996 before this Court. This Court had also dismissed the appeal through Ext.A8 judgment once again upholding the validity of Ext.A1 herein. 8. This is a case wherein the defendant cannot challenge the validity of Ext.A1 partition deed in view of Exts.A6 and A8 judgments, which have attained finality. The contention taken by the appellant to challenge the validity of Ext.A2 sale deed is that the said R.Mohan Kumar, who had executed Ext.A2 in favour of the mother, was mentally ill and was incapable of entering into a contract. No evidence was adduced by the defendant to prove that the said Mohan Kumar had ever suffered any such mental illness. It is strange to note that still, the said Mohan Kumar is alive. Had the said Mohan Kumar been mentally ill, the appellant could have resorted to necessary steps under the Mental Health Act, after an inquisition by the District Court in terms of the said Act. No such exercise was done. RSA.200/2017 : 6 : 9. It is pertinent to note that in OS No.439/1991 relating to Ext.A6 judgment, this appellant, who was the plaintiff, had no contention that the said partition deed was invalid on account of the mental illness of R.Mohan Kumar. Admittedly, R.Mohan Kumar was also a party to Ext.A1 partition deed. Without taking any such contention in OS No.439/1991 for challenging Ext.A1 herein, the defendant has simply alleged that the said Mohan Kumar was mentally ill and therefore, he could not have executed Ext.A2 sale deed. When the appellant is challenging a sale deed, the appellant ought to have adduced concrete evidence to prove the invalidity, if any, of the sale deed. No such exercise has been done. 10. The learned counsel for the appellant has argued out that execution of Ext.A3 gift deed has also been challenged in this suit and therefore, the plaintiff ought to have proved the execution of Ext.A3 by examining at least one of the attesting witnesses in terms of Section 68 of the RSA.200/2017 : 7 : ## Indian Evidence Act. The appellant had contended in the written statement as follows:- _“The further averment in the paragraph that plaintiff had accepted the gift deed executed by Pappy Amma in his favour and he became the absolute owner of the property, is incorrect. The plaintiff had never obtained title or possession over the plaint schedule property.”_ 11. Apart from resorting to an evasive denial that it is not correct that the plaintiff had accepted the gift, this is not a case wherein the execution of Ext.A3 has been challenged. The said evasive denial cannot have any effect on the validity of Ext.A3. In the absence of any such challenge or denial of execution of Ext.A3, the appellant cannot press into service the aid of Section 68 of the Indian Evidence Act. 12. The learned counsel for the appellant has relied on the decision in _**Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale (D) & Ord** [2007 (6) SCC 737]_ , wherein it was held in paragraph 10 that:- RSA.200/2017 : 8 : _“The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.”_ 13. It is true that the plaintiff, who comes up for getting his title over a property declared, has to prove his title and he cannot clinch on the weakness of the defence to prove his title. At the same time, facts are different as far as this suit is concerned. Ext.A1 partition deed was found to be valid concurrently through Exts.A6 and A8 judgments. It was based on Ext.A1 partition deed, which was found to be valid, Ext.A2 sale deed was executed. The appellant could not prove any vitiating circumstance to invalidate Ext.A2 sale deed. Therefore, it is clear that the mother had derived title over the property by virtue of Ext.A2. She had executed RSA.200/2017 : 9 : Ext.A3 gift deed in favour of the plaintiff. There is no denial of execution of Ext.A3. 14. The only contention is that the mother could not have executed Ext.A3 since she did not derive title over the plaint schedule property by virtue of Ext.A2. Even though Ext.A2 was challenged, the appellant has miserably failed to establish any valid ground to invalidate Ext.A2. Therefore, this is not a case wherein the plaintiff need to seek for a declaration. At the same time, it was by way of abundant caution, the plaintiff has sought for the following relief:- _“The Honourale Court may be pleased to pass a decree declaring the plaintiff's ownership over the plaint schedule building and to allow him to recover possession of the same from the defendant.”_ 15. The relief is confined to the building alone and not in respect of the 12 cents of property conveyed through Ext.A3. The plaintiff has no case that he has put up or constructed the plaint schedule building. The plaint schedule RSA.200/2017 : 10 : building has been specifically mentioned in the schedule appended in Ext.A1 partition deed and the subsequent documents, which are Exts.A2 and A3. The plaintiff has not sought for a declaration of his title over the entire property, whereas the relief is confined to the building alone. Matters being so, the decision in _**Ramchandra Sakharam** (supra)_ has no application to the facts and circumstances of this case. 16. The concurrent findings entered by both the courts below do not call for any interference at all. All the findings are supported by observations. Any question of law does not emerge from this Second Appeal. Matters being so, this Regular Second Appeal is only to be dismissed, and I do so. In the result, this Regular Second Appeal is dismissed. There is no order as to costs. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/18/09 _// True Copy //_ _PS to Judge_