## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR. JUSTICE B.KEMAL PASHA**
**WEDNESDAY, THE 4TH DAY OF JANUARY 2017/14TH POUSHA, 1938**
## **RSA.No. 28 of 2012 ()**
**----------------------**
**AS 116/2009 of SUB COURT, PALA**
**OS 204/2008 of MUNSIFF’S COURT, KANJIRAPPALLY**
**FULL NAME AND ADDRESS OF THE APPELLANT/APPELLANT/PLAINTIFF: -----------------------------------------------------------**
**RATHIKUMARI, AGED 52 YEARS, D/O.C.K.PURUSHOTHAMAN, CHETTUKADAVIL, MADUKA P.O, KOSSADY, MUNDAKAYAM, KOTTAYAM.**
**BY ADV. SRI.K.A.HASSAN**
**FULL NAME AND ADDRESS OF THE RESPONDENTS/RESPONDENTS/ DEFENDANTS :**
**-----------------------------------------------------**
**1. K.M.RAJAN, AGED 58 YEARS,**
**S/O.K.C.MADHAVAN, KOTTAYARUKIL, KOSADY KARA, ERUMELY NORTH VILLAGE, 686 509.**
**2. K.C.MADHAVAN**
**KOTTAYARUKIL, KOSADY KARA, ERUMELY NORTH VILLAGE- 686 509.**
*** 3. CHEERAMMA**
**W/O.K.C.MADHAVAN, KOTTAYARUKIL, KOSADY KARA, ERUMELY NORTH VILLAGE,- 686 509 (DIED AND LR’S ARE RECORDED)**
**4. NIRMALA VIJAYAN, D/O.K.C.MADHAVAN, KOTTAYARUKIL, KOSADY KARA, ERUMELY NORTH VILLAGE-686 509.**
**RSA.No. 28 of 2012 ()**
**5. LAILA, D/O.K.C.MADHAVAN, KOTTAYARUKIL, KOSADY KARA, ERUMELY NORTH VILLAGE-686 509.**
*** IT IS RECORDED THAT THE RESPONDENTS 1, 2, 4 AND 5 ARE THE ONLY LEGAL HEIRS OF DECEASED 3RD RESPONDENT AS PER ORDER DATED 22.03.2012 IN I.A.No.823 OF 2012.**
**R1,R2,R4 & R5 BY ADV. SRI.T.R.ASWAS**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**DSV/5/1/17**
**RSA.No. 28 of 2012 ()**
## **APPENDIX**
## **APPELLANT’S ANNEXURES:**
**ANNEXURE 1: THE CERTIFIED COPY OF THE PRELIMINARY JUDGMENT DATED 19.9.2009 OF THE MUNSIFF’S COURT, KANJIRAPPALLY.**
**ANNEXURE 2: TRUE COPY OF THE JUDGMENT IN A.S NO.116/2009 DATED 14.7.2011 OF THE SUB COURT, PALA.**
## **RESPONDENTS' ANNEXURES:**
## **NIL**
**// True Copy //**
**P.A. To Judge**
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## B. KEMAL PASHA, J ================= R.S.A.No.28 of 2012
================= Dated this the 4[th] day of January, 2017
## J U D G M E N T
Challenging the concurrent findings entered by the Munsiff's Court, Kanjirappally, in O.S.No.204 of 2008 and the Sub Court, Pala, in A.S.No.116 of 2009, the plaintiff in O.S.No.204 of 2008 has come up with this second appeal. The suit was originally one for injunction simplicitor. Subsequently, it was amended as one for fixation of boundary also.
2. The appellant was the wife of the 1[st] respondent herein. Subsequently, they fell apart. Respondents 2 and 3 are the parents of the 1[st] respondent. Respondents 4 and 5 are the sisters of the 1[st] respondent.
3. The case of the plaintiff in short is that she
obtained 1 Acre and 15 Cents of property in total,
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which are described as Schedule Nos.1 and 2 in the plaint, through two unregistered agreements. The property is situated in a settlement area, wherein most of the inhabitants are of the community ‘Malayarayans’, which is a scheduled tribe. Their properties cannot be transferred through registered documents. According to the plaintiffs, therefore, she obtained these properties through two unregistered agreements. Subsequently, she approached the then Village Officer to obtain possession certificate in respect of the properties and obtained Exhibit-A1 possession certificate, on the strength of which, the suit has been filed. It is her case that the 1[st] respondent is attempting to trespass into the property and therefore, the suit for a perpetual injunction was originally filed. Subsequently, she wanted to get the boundaries of the property fixed, for which the relief was amended
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accordingly.
4. The 1[st] respondent contended that the plaintiff has no such properties and she has never purchased any such properties through two unregistered agreements. It has been further contended that Exhibit-A1 relied on by the plaintiff is a forged document. The 1[st] respondent had filed an application before the trial court for keeping that document in safe custody, by alleging that it is an out come of forgery.
5. On the side of the plaintiff, PW1 to PW9 were examined and Exhibits-A1 to A3 were marked. On the side of the 1[st] respondent, DW1 and DW2 were examined and Exhibits-B1 to B8 were marked. As court Exhibits, Exhibits-C1 series and C2 series were marked. Exhibits-X1 and X1(a) were also marked. The trial court dismissed the suit, by finding that the plaintiff is not entitled to get a decree as prayed for.
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The matter was taken up in appeal before the lower appellate court. The lower appellate court concurred with the findings entered by the trial court and dismissed the appeal.
6. The short question to be decided in the second appeal is whether Exhibit-A1 could be treated as a forged document and whether the agreements being relied on by the plaintiff could be used for collateral purposes to trace out the possession of the plaintiff over these properties. The learned counsel for the appellant has strenuously argued that at any stretch of imagination, Exhibit-A1 cannot be treated as a forged document and no findings have been entered by an appropriate court or authority that Exhibit-A1 is a forged document. It has been further argued based on the decision in Bondar Singh and others v. Nihal Singh and others [AIR 2003 Supreme Court 1905] that a document like an unregistered
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sale deed, even though not admissible in evidence, can be looked into for collateral purposes to see the nature of possession of the party claiming through the said document over the properties concerned.
7. Per contra, the learned counsel for the 1[st] respondent has argued that even the unregistered agreements, being relied on by the plaintiff, are not at all reliable or believable and therefore, the same could not be made use of for any purpose. It has also been argued that Exhibit-A1 is a forged document and the plaintiff had attempted to press into service such a forged document in order to mislead the court. According to the plaintiff, she had earlier obtained Exhibit-A1 document from the Village Officer by producing the two unregistered agreements being relied on by her. It is the case of the plaintiff that erroneously, instead of granting the possession certificate for 46 Ares equal to 1 Acre and
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15 Cents of property, the then Village Officer, M.H.Shaji, had issued Exhibit-A1 for 40 Ares only. 40 Ares represents 1 Acre of property only and therefore, she had to approach the Village Office again for getting the document corrected. According to the plaintiff, when she approached the Village Office, one Raju, who was the Assistant of the Village Officer, had obtained Exhibit-A1 document from her and simply corrected the extent in it as 46 Ares and returned the same to her. Therefore, according to the plaintiff, Exhibit-A1 could not be treated as a forged document.
8. The learned counsel for the 1[st] respondent has pointed out that 1 Acre of property scheduled as Item No.1, and 15 cents of property scheduled as Item No.2 in the plaint are not lying contiguously; whereas, the said two properties are situated at a distance of 15 metres, from one another and
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therefore, there could not have any occasion to correct the extent of the property in the possession certificate from 40 Ares to 46 Ares. The correction of the extent of the property in Exhibit-A1 is apparent. There is over writing on the figure '0'. It seems that '0' has been corrected as '6'. At the same time, there is no signature, seal or even an initial affixed any where near the said correction. It is the admitted case of the plaintiff that when Exhibit-A1 was originally issued to her, the extent of property shown in Exhibit-A1 was 40 Ares. It is evident that subsequently, it has been corrected as 46 Ares.
9. At the same time, the plaintiff has not cared to examine the person named Raju as a witness for the plaintiff. It has been argued by the learned counsel for the appellant that even though steps were taken for the examination of the said Raju, he was not available for examination. In case, he had
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not cared to appear before the trial court, the plaintiff ought to have initiated coercive steps for getting him examined, especially when, there is a serious allegation against the plaintiff that she has committed forgery and produced Exhibit-A1 before the trial court. The non-examination of such a person, in fact, cuts the root of the case of the plaintiff, regarding the alleged correction carried out in Exhibit-A1.
10. Over and above it, PW6, Village Officer, who was examined before the trial court, has clearly stated that the Village records, relating to the possession certificate originally issued to the plaintiff was one for 40 Ares of property only. He has never stated that any of the Revenue Officials has made the said correction in Exhibit-A1. Especially when, a criminal case is pending by alleging forgery and forgery for the purpose of cheating as against the
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appellant, before the Judicial First Class Magistrate’s Court, Kanjirappally, this Court is not making any observations as to whether the plaintiff has committed forgery or carried out the said correction as the case may be. Whatever it is, the extent in Exhibit-A1 has been corrected and there is no authenticity for the said correction. In such case, the said document cannot be relied on for any purpose as far as the reliefs sought for in the suit are concerned.
11. The next argument is that those unregistered agreements relied on by the plaintiff could be taken note of by the courts below for ascertaining the nature of possession of the plaintiff over the properties. It seems that two separate unregistered agreements are being relied on by the plaintiff. One such unregistered agreement is in respect of 1 Acre of property and the other one is in
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respect of 15 Cents of property. According to the plaintiff, she had parted with a consideration of `2,00,000/- for purchasing Item No.1 property from R5, who is none other than the Sister of the 1[st] respondent. Her further case is that the said amount was paid through a cheque and therefore, it could be considered as consideration paid by her in respect of the property. At the same time, the case of the 1[st] respondent is that the said amount of `2,00,000/was paid by two persons namely Babu and Jude, who are the friends of the 1[st] respondent to meet the marriage expenses of the daughter of R5. The learned counsel for the appellant has pointed out that, at that particular period, the plaintiff and the 1[st] respondent were living together as wife and husband and therefore, the said two persons, who had issued the cheque, could be treated as friends of both the plaintiff and the 1[st] respondent. Whatever it is, those
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two persons, who had allegedly issued the said cheque, were not examined as witnesses for the plaintiff. Had there been a case that the said cheque was issued by the said two persons for and on behalf of the plaintiff, the plaintiff ought to have examined those persons as witnesses to prove the transaction, especially when, the same is being relied on by the plaintiff as consideration.
12. Regarding the second agreement relating to 15 Cents of property, which is scheduled as Item No.2, the only person examined was PW8, who was one of the witnesses to the said agreement. He is none other than the son of the the person, who had allegedly conveyed the property. According to PW8, he had affixed his signature in the said document as instructed by his father, and he did not know whether his father had transferred the property to the plaintiff. The father of PW8 was also not
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examined. According to the learned counsel for the appellant, the father of PW8 was laid up and therefore, he could not be examined. When PW8 knew nothing regarding the transaction, through his examination alone, the said unregistered agreements cannot be proved.
From all the above, this Court is satisfied that there is absolutely nothing to interfere with both the judgments passed by the courts below. This Second Appeal fails and is dismissed. In the nature of this appeal, the parties shall bear their respective costs.
Sd/-
B. KEMAL PASHA, JUDGE.
DSV/5/1/17
// True Copy //
P.A. To Judge
10/1
