Regular Second Appeal No. 694 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 31[ST] DAY OF AUGUST 2022 / 9TH BHADRA, 1944** ## **RSA NO. 694 OF 2021** **AGAINST THE JUDGMENT AND DECREE IN A.S. NO.171/2016 ON THE FILE OF THE** **ADDITIONAL DISTRICT JUDGE II (SPECIAL), KOTTAYAM DATED 02.8.2021 AGAINST THE JUDGMENT AND DECREE IN O.S. NO.556/2012 ON THE FILE OF THE ADDITIONAL MUNSIFF COURT, KOTTAYAM DATED 20.5.2016** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** - 1 PRASAD, AGED 59 YEARS S/O. RAMANKUTTY, EZHUPATHILCHIRA VEETIL, CHINGAVANAM KARA, NATTAKOM VILLAGE, KOTTAYAM DISTRICT-686 531 - 2 PRASHOBH, AGED 32 YEARS S/O. PRASAD, EZHUPATHILCHIRA VEETIL, CHINGAVANAM KARA, NATTAKOM VILLAGE, KOTTAYAM DISTRICT-686 531 - 3 PRASANTH, AGED 29 YEARS S/O. PRASAD, EZHUPATHILCHIRA VEETIL, CHINGAVANAM KARA, NATTAKOM VILLAGE, KOTTAYAM DISTRICT,686 531 BY ADVS. PRAFIN JOSEPH ZACHARIA PRASEENA ELIZABETH JOSEPH ## **RESPONDENTS/2ND RESPONDENT AND ADDITIONAL RESPONDENTS3 TO 5/2ND PLAINTIFF** ## **AND LEGAL HEIRS OF DECEASED 1ST PLAINTIFF:** |**GAL**|**HEIRS OF DECEASED 1ST PLAINTIFF:**| |---|---| |1|PUSHPAVALLE, AGED 63 YEARS| ||W/O. GOPI, PUSHPAGIRI VEETIL, KZHIPURAYIDOM KARA,| ||MANARCADU VILLAGE, KOTTAYAM TALUK 686019.| |2|RENJITH, AGED 40 YEARS| ||S/O. GOPI, PUSHPAGIRI HOUSE, KUZHIPURAYIDOM KARA,| ||MANARCADU VILLAGE, KOTTAYAM TALUK 686 019.| |3|KANNAN, AGED 37 YEARS| ||S/O. GOPI, PUSHPAGIRI HOUSE, KUZHIPURAYIDOM KARA,| ||MANARCADU VILLAGE, KOTTAYAM TALUK-686 019.| |4|MAGI, AGED 38 YEARS| ||D/O. GOPI, PUSHPAGIRI HOUSE, KUZHIPURAYIDOM KARA,| ||MANARCADU VILLAGE, KOTTAYAM TALUK, 686019.| ||BY ADVS.| ||C.S.MANILAL -R1 TO R4| ||S.NIDHEESH - R1 TO R4| **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION** **ON 29.08.2022, THE COURT ON 31.8.2022 DELIVERED THE FOLLOWING:** RSA No.694 of 2021 2 ## **JUDGMENT** Dated this the day 31[st] of August, 2022 This appeal has been directed against the judgment and decree in A.S. No.171/2016 on the file of Additional District Court-II (Special), Kottayam, which arose out of judgment and decree in O.S. No.556/2012 on the file of Additional Munsiff’s Court, Kottayam. 2. The suit has been filed for declaration of title and also for recovery of possession. The plaint schedule property originally belonged to the mother of 2[nd] plaintiff and mother transferred property by virtue of sale deed No.2037/1991 of Sub Registrar Office, Kottayam to the plaintiffs. At the instigation of the 1[st] defendant, the mother instituted O.S. No.251/1997 as well as O.S. No.529/2005 challenging the sale deed executed in favour of the plaintiffs and both suits got dismissed. The mother died in the year 2008. On 12.6.2012 the plaintiffs went to the plaint schedule property so as to construct a residential building therein which was obstructed by the defendants. Hence the suit. RSA No.694 of 2021 3 3. The defendants filed written statement disputing the description of the plaint schedule property. According to them the defendants are in possession of the entire 26 cents of land owned by the mother. It is contended that sale deed No.2037/1991 was got executed by playing fraud upon the mother and the mother filed O.S.251/1997 and O.S. No.629/2008, but she was unable to attend the court when the cases were listed for trial due to her ill-health and both suits happened to be dismissed. The sale deed No.2037/1991 never came into existence and the plaintiffs never took possession of plaint schedule property by virtue of the document. No consideration was paid by the 2[nd] plaintiff to the mother. The plaintiffs have no possession over the plaint schedule property. 4. PW1 and PW2 examined and Exhibits A1 to A10 were marked from the side of the plaintiffs. DW1 and DW2 examined from the side of the defendants. The commission report was marked as C1, C1(a) and C1(b). 5. The Trial Court on evaluating the facts and circumstances and evidence adduced found that Exhibit A1 proves right and title of the plaintiffs over the plaint schedule property and decreed the suit declaring the plaintiffs right over RSA No.694 of 2021 4 the plaint schedule property and recovery of possession as sought for was also allowed. Against which A.S. No.171/2016 was filed by the defendants/appellants and the learned 2[nd] Additional District Judge on re-appreciating the facts, circumstances and evidence confirmed the judgment and decree passed by the trial court and dismissed the appeal. 6. Having lost in both forums appellants approached this Court in second appeal. Notice was issued to the respondents and both sides were heard. 7. The plaintiffs claims right over the plaint schedule property having an extent of 10 cents by virtue of Exhibit A1 certified copy of sale deed No.2037/1991 executed by the mother in favour of the plaintiffs. 1[st] defendant is the brother of 2[nd] plaintiff and defendants 2 and 3 are the children of 1[st] defendant. The mother during her life time had filed O.S. No.251/1997 to declare Exhibit A1 as void. Exhibit A3 is the certified copy of plaint in O.S. No.251/1997. The certified copy of the written statement filed by the defendants in O.S. No.251/1997 is marked as Exhibit A4. Exhibit A5 is the judgment in O.S. No.251/1997 and Exhibit A6 is the decree in O.S. No.251/1997 which would prove that the suit was RSA No.694 of 2021 5 dismissed for non-appearance of the plaintiffs. Exhibit A7 is the certified copy of the plaint in O.S. No.529/2005 filed by the mother of the 2[nd] plaintiff seeking a perpetual injunction for restraining the 2[nd] plaintiff in the present case from trespassing into 5 cents of land (2.40 Ares). Exhibit A8 is the written statement in O.S. No.529/2005 wherein plaintiffs therein reiterated their right on the basis of Exhibit A1 sale deed. Exhibit A9 is the certified copy of the judgment proving the dismissal of O.S. No.529/2005 for the absence of the plaintiffs in that case. The 2[nd] plaintiff was examined, deposed in terms with the plaint with regard to possession of the plaint schedule property. Exhibit A1 is the certified copy of the sale deed. It has come out that the 2[nd] plaintiff in O.S. No.259/1997 stated in Exhibit A3 plaint that the defendants threw the sale deed at plaintiffs and in that course during a scuffle the mother of the 2[nd] plaintiff came into possession of the original sale deed. So the fact that the original sale deed was with the mother as admitted by her in the earlier proceedings. 8. The plaintiffs also produced tax receipts Exhibits A2 and A2(a) proving payment of tax with respect to the plaint schedule property dated 05.06.1997 and 15.01.2016. So, it RSA No.694 of 2021 6 would prove plaintiffs title and possession over the plaint schedule property. 9. The learned counsel for the appellants contended that the suit is bad for non-jointer of necessary parties. It is also contended that there is no pleadings in the plaint with regard to passing of consideration and there is no consideration for Exhibit A1 sale deed and hence it is void and unenforceable. He would also contend that plaint schedule property is not identified. 10. So also on going through the judgment passed by the trial court as well as 1[st] Appellate Court it could be seen that there is no such contention and no issue also framed with regard to non-jointer of necessary parties. Appellants cannot raise a plea of non-jointer of the 2[nd] appellate stage. 11. According to the learned counsel for the appellants, the other sharers also ought to have been impleaded since the mother is no more and the property is owned by the mother. But it is the specific contention of the defendants that they are in possession of the entire 26 cents of land owned by the mother. Since, the defendants alone are disputing the title of the plaintiffs, there is no necessity to implead the other legal RSA No.694 of 2021 7 heirs when her specific case is that the plaint schedule property has been sold by the mother to her. 12. The next contention of the learned counsel is that there is no pleadings in the plaint with regard to the passing of consideration. But the learned counsel for the plaintiffs in this context would take my attention to the specific averments in the plaint with regard to the execution of sale deed by the mother in her favour by virtue of document No.2037/1991. Order VI Rule 2 of the Code of Civil Procedure would provides that pleadings should contain statement in concise form of material facts Section 54 of Transfer of Property Act which defines 'sale' as a transfer of ownership in exchange for a price paid or promised or part paid or part promised. Moreover, Exhibit A1 is the registered sale deed and there is a presumption regarding the genuineness of registered sale deed and onus is upon the person who challenges the same to prove otherwise. Here, no attempt was made by the defendants either to examine the Sub Registrar at whose instance Exhibit A1 is happened to be registered and no other convincing materials is forthcoming to prove that Exhibit A1 has been executed by playing fraud or misrepresentation upon RSA No.694 of 2021 8 the mother. It is well settled that whenever such contention regarding fraud and misrepresentation with regard to the registered document is raised by a party the burden is upon them establish the same by adducing any convincing evidence. (See **Prem Singh and others v. Birbal 2006 (5) SCC 353; Mathu v. Cherichi 1990 (1) KLT 416** ) **.** So, in the absence of any materials in that regard the contention of the defendants that Exhibit A1 is a document got executed by playing fraud and misrepresentation upon the mother is only to be discarded. 13. Next contention is with regard to the identification of plaint schedule property. It has been found by the courts below that a commission report, mazhar and survey plan were produced from the side of the plaintiffs and got marked as Exhibits C1, C1(a) and C1 (b). The surveyer was examined as PW2. Evidence of PW2 and C1(b) survey plan showed that plaint schedule property is identified and demarcated as “FGHJKLF” and entire property has been demarcated in the plan as “MNOPQRKLM”. It has also been concurrently found that though PW2 was cross examined at length nothing was brought out to discredit his testimony. So, the contention of RSA No.694 of 2021 9 the learned counsel that the plaint schedule property is not identified also is not sustainable. 14. Hence, it has come out in evidence that two suits were filed earlier by the mother which according to the plaintiff have been filed at the instigation of the defendants. Both suits were happened to be dismissed for default and the mother is no more. When she went to the plaint schedule property on 12.06.2012 for the purpose of constructing a house in the plaint schedule property, the defendants obstructed. The contention raised by the defendants would also fortify the allegations in the plaint regarding the obstruction caused by them, since he is claiming right over the plaint schedule property and also denying the execution of the sale deed by the mother in favour of the plaintiffs. Hence, cause of action alleged by the plaintiff is also well established. The plaintiffs have proved by oral and documentary evidence the title and possession over the plaint schedule property. On a close scrutiny of the judgment and decree passed by the court below would show that facts, circumstances and evidence adduced have been evaluated in a proper perspective. Consequently, declaration of title and recovery of possession granted by the RSA No.694 of 2021 10 courts below is only to be upheld. So, I do not find any question of law or any substantial question of law emerging for consideration in this second appeal. In the result, the appeal is found to be devoid of any merit and hence dismissed. No cost. Sd/- **M.R.ANITHA JUDGE** SMF