Sankara Pillai Krishnankutty Nair v Kunju Krishna Pillai Parameswaran Nair and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938 SA.No. 199 of 1998 (F) ----------------------- AGAINST AS NO.9/1993 of SUB COURT, NEYYATTINKARA DATED 31-05-1997 AGAINST OS NO. 75/1991 of PRINCIPAL MUNSIFF'S COURT, NEYYATTINKARA DATED 27-08-1993 APPELLANT - 5TH RESPONDENT - 5TH DEFENDANT: -----------SANKARA PILLAI KRISHNANKUTTY NAIR, THAZHANKARA MANNAN NIVAS, THALAYAL DESOM, ATHIYANNOOR, PAKUTHY. (DIED) (LHRS. IMPLEADED AND RECORDED) ## ADDL.APPELLANTS: 2. K.K.KANIKHA, KANIKHA BHAVANAM, THALAYAL, ARALAMMOODU POST, NEYYATTINKARA . 3. K.K.KAVITHA, KANIKHA BHAVANAM, THALAYAL, ARALAMMOODU POST, NEYYATTINKARA . 4. K.K.KANNAN, KANIKHA BHAVANAM, THALAYAL, ARALAMMOODU POST, NEYYATTINKARA . ADDL.APPELLANTS 2 TO 4 ARE IMPLEADED AND RESPONDENT NO.5 IS RECORDED AS THE L.HRS. OF DECEASED SOLE APPELLANT AS PER THE ORDER DTD. 18/7/2014 IN I.A. 1816/2014. BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.K.R.MONISHA SMT.ACHU SHUBHA ABRAHAM RESPONDENTS - APPELLANTS - PLAINTIFFS - RESPONDENTS 1 TO 4 AND 6, DEFENDANTS 1 TO 4 AND 6: -------------- 1. KUNJU KRISHNA PILLAI PARAMESWARAN NAIR, THOTTATHINNOOL VEEDU, MEKKOLLA DESOM, KOLLAYIL PAKUTHY FROM DADAYARA VEEDU, ROADARIKATHU CHERIYAKONAM, ATHIYANNOOR DESOM, ATHIYANNOOR PAKUTHY. - (*)2. MAHESWARI AMMA SUKUMARI AMMA, OF DO. (DIED) (DEATH RECORDED AND LHRS. IMPLEADED) - (**)3. JANAKY AMMA SUMATHY AMMA, ROADARIKATHU KADAYARA VEEDU, CHERIYAKONATHU, (DIED) ATHIYANNOOR DESOM, ATHIYANNOOR PAKUTHY. (LHRS. RECORDED) SA NO.199/1998 2 4. VASU PILLAI VENUGOPALAN NAIR OF DO. 5. SUMATHY AMMA KUMARI OF DO. 6. SUMATHY AMMA SOBHANA OF DO. 7. SUKUMARA PILLAI SURENDRAN NAIR OF DO. ## (*)ADDITIONAL RESPONDENTS: 8. DAYA P.NAIR, AGED 50 YEARS, D/O.MAHESWARI AMMA SUKUMARI AMMA, THOTTATHINNOOL VEEDU, MEKKOLLA DESOM, KOLLAYIL VILLAGE, THIRUVANANTHAPURAM DISTRICT 695 121. 9. DEEPA P. NAIR, AGED 48 YEARS, THOTTATHINNOOL VEEDU, MEKKOLLA DESOM, KOLLAYIL VILLAGE, THIRUVANANTHAPURAM DISTRICT 695 121. 10. DEVIKA P.NAIR, AGED 46 YEARS, THOTTATHINNOOL VEEDU, MEKKOLLA DESOM, KOLLAYIL VILLAGE, THIRUVANANTHAPURAM DISTRICT 695 121. 11. DURGA P.NAIR, AGED 44 YEARS, THOTTATHINNOOL VEEDU, MEKKOLLA DESOM, KOLLAYIL VILLAGE, THIRUVANANTHAPURAM DISTRICT 695 121. (*)THE DEATH OF THE 2ND RESPONDENT IS RECORDED AND HER LEGAL HEIRS ARE IMPLEADED AS ADDL. RESPONDENTS 8 TO 11 AS PER THE ORDER DATED 03/8/2016 IN I.A.NO.1486/2016. (**)RESPONDENTS 4 TO 7 ARE RECORDED AS THE LR'S OF DECEASED THIRD RESPONDENT VIDE ORDER DATED 19/8/10 IN IA 2121/10. R1, R8 TO R11 BY ADV. SRI.L.MOHANAN R8 TO R11 BY ADV. SMT.LIGEY ANTONY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------S.A. No.199 of 1998 -------------------------------------Dated this the 26[th] day of August, 2016** ## **JUDGMENT** 5[th] defendant in O.S.No.75 of 1991 before the Munsiff's Court, Neyyattinkara preferred this second appeal challenging the lower appellate court's decree. The above said suit was dismissed by the trial court and the lower appellate court reversed the dismissal of the decree. Pending this appeal, the appellant (5[th] defendant) died. His legal representatives are impleaded as additional appellants 2 to 4. Plaintiffs are respondents 1 and 2 in this appeal. Other defendants are the other respondents. Subsequently the 2[nd] respondent (2[nd] plaintiff) died. Her legal representatives are impleaded as additional respondents 8 to 11. For clarity, the parties are hereinafter referred to as the plaintiffs and defendants respectively. 2. Heard Shri Philip T. Varghese, learned counsel for the appellant and Shri L.Mohanan, learned counsel for the contesting respondents. 3. Short facts relevant for the disposal of this appeal are as follows: A schedule property belonged to Parvathi Pillai Kamalamma Pillai. Four cents situated on the north-eastern side was outstanding on mortgage 2 SA No.199/1998 (otti) with one Poovan Krishnan. B schedule, which is forming part of A schedule, was mortgaged by Parvathi Pillai Kamalamma Pillai to Bhargavi Amma in 1955. She assigned the mortgage right to the 1[st] plaintiff in 1960. 2[nd] plaintiff was the wife of 1[st] plaintiff. 1[st] plaintiff later assigned his rights in B schedule property to her. Five cents of property inclusive of a building in A schedule was purchased by the 1[st] plaintiff in 1974 from Janaki Pillai. Poovan Krishnan's son filed O.S.No.14 of 1975 to redeem the mortgage in respect of B schedule. 1[st] plaintiff and the 1[st] defendant were defendants 2 and 3 in that suit. As per Ext.A5 judgment the suit was dismissed. Thereafter, he filed O.S.No.376 of 1980 which also was dismissed as per Ext.A7. The 1[st] defendant therein died. His rights devolved on the present 1[st] plaintiff, who was the 2[nd] defendant in that suit. According to the plaint averments, the mortgage right had become irredeemable by law of limitation. Plaintiffs, who had mortgage right and jenm right, are the absolute owners of the property. While they were possessing the property, 1[st] plaintiff's mother Janaki Amma was also with them. With the consent of the plaintiffs, the 1[st] defendant (1[st] plaintiff's sister) came and started residing in the building for attending to Janaki Amma's needs. As it was difficult for all to stay in the same house, the plaintiffs moved out. When the plaintiffs demanded the 1[st] defendant to vacate the house after the death of 1[st] plaintiff's mother, she raised untenable contentions. Therefore, the suit for recovery of possession and mesne profits happened to be filed. 3 SA No.199/1998 4. The 5[th] defendant alone filed a written statement. He contended that he was not aware of the 'otti' said to have been given by Parvathi Pillai Kamalamma Pillai in favour of the persons mentioned in Ext.A1. According to the 5[th] defendant, Parvathi Pillai Kamalamma Pillai had a leasehold right over 22 cents of property mentioned in the plaint by virtue of an assignment of lease of 1117 ME. Plaintiffs have no right over the property. Plaintiffs did not get possession and the assignment in favour of the 2[nd] plaintiff was a concocted deed. 5[th] defendant was not aware of Ext.A7 suit. The suit is not maintainable. 5. The trial court raised relevant issues. It considered the evidence comprising of Exts.A1 to A13 and B1 to B6 and also Ext.C1 series. Further, it considered the oral testimony of PW1 and DWs 1 and 2. 6. The trial court after analysing the evidence found that the plaintiffs had not established their right to claim recovery of possession. Therefore the suit was dismissed. 7. Plaintiffs took up the matter in appeal in A.S.No.9 of 1993 on the file of the Court of Subordinate Judge, Neyyattinkara. The lower appellate court by a cryptic judgment disposed of the appeal. It is really disturbing to note that the lower appellate court has not discussed the evidence and did not state any valid reason for reversing the considered judgment and decree of the trial court. The lower appellate court lost sight of the fact that it is the last court on facts. A mere reading of the judgment 4 SA No.199/1998 of the lower appellate court will make the position clear. Paragraph 9 of the judgment, in which alone it dealt with the whole issues in the appeal suit, is extracted hereunder: _“9. Issues. 2, 3 and 5:- A schedule property is 29 cents within specific side measurements in Sy.174/IA 17 acre 21 cents. According to the plaintiffs, 4 cents on the north eastern corner was an otti in favour of Poovan Krishnan. The property is stated to belong to Parvathi Pillai Kamalamma Pillai. B schedule is 21 ½ cents on the eastern side of 'A' schedule. This property is covered by Ext.A1 otti executed by Kamalamma Pillai in favour of Bhargavi Amma. The recital therein shows that the latter was in possession at the time of Ext.A1 by virtue of a prior mortgage no.2512/1954. According to plaintiffs this otti was assigned to first plaintiff in 1960. This deed is Ext.A2. The recital therein is to the effect that the mortgage of coconut trees in favour of Poovan Krishnan mentioned in Ext.A1 has been released. First plaintiff has assigned his rights to second plaintiff, his wife (Ext.A4). Ext.A3 is a sale deed in favour of first plaintiff by Janaki Pillai claiming under Kamalamma Pillai who has got jenmom right as per a gift deed of 1109 (mentioned in Ext.A1 also). The recital shows the assignor obtained right from Kamalamma Pillai by a deed 2720 of 1955. The property assigned is 5 cents in 21 ½ cents mortgage property inclusive of building (the_ 5 SA No.199/1998 _recital shows that the building was put up by the mortgagee, the first plaintiff).”_ 8. Learned counsel for the 5[th] defendant (appellant) contended that the lower appellate court did not consider the relevancy of evidence adduced. According to him, the lower appellate court erroneously decreed the suit casting the burden on the defendants to disprove the case of the plaintiffs seeking a relief of recovery of possession on the strength of title. Learned counsel relying on the decisions of the Supreme Court and this Court in **Padakalingam v. Yesudasan (1953 KLT 587), Mar Basselios Catholicos v. Mar Poulose Athanasius (1954 KLT 385)** and **Kunhikannan v. Damodaran Nambeesan (1992 (2) KLJ 625)** contended that in a suit for ejectment on the strength of title, it is more important for the plaintiff to establish his title than to destroy the defendant's title, for the mere destruction of the defendant's title in the absence of establishment of plaintiff's own title would carry the plaintiff nowhere. It has been held in the decisions that possession constitutes a sufficient title against every person not having a better title. Till some act be done by the original owner to divest this possession and assert his title, such actual possession is prima facie evidence of a legal title in the possessor, so that, speaking generally, the burden of proof of title is thrown upon anyone who claims to oust him. In ejectment suits, the plaintiff, who controverted the defendant's title, must recover by his own strength and not by weakness of the defendants. It is 6 SA No.199/1998 also contended by the learned counsel that the lower appellate court did not consider these principles and also did not test whether the plaintiffs have established title on the basis of the evidence adduced in this case. On a perusal of the above quoted reasoning of the lower appellate court, it will be clear that the court did not discharge its obligation judiciously. 9. Learned counsel for the contesting respondents/plaintiffs contended that the plaintiffs have perfected title in respect of the property shown in the plaint schedule by the provisions in Section 27 of the Limitation Act. According to the learned counsel, the plaintiffs have a mortgage right revealed from Ext.A1, A2 and A4. It is also the contention that the possessory mortgage right devolved on the plaintiffs was not redeemed and thereby they have prescribed title by efflux of time. Even though there are observations in Exts.A5 and A7 judgments that the plaintiffs' claim for tenancy was found against by the Land Tribunal concerned, the learned counsel for the plaintiffs would contend that it will not adversely affect the right of the plaintiffs because they have prescribed title by limitation as the mortgage was not redeemed within the statutory period. 10. None of these contentions have been examined by the lower appellate court with reference to the evidence adduced in the case. Therefore, I am of the view that the court below without any justifiable reason failed in its duty. The scope of interference in a second appeal is 7 SA No.199/1998 limited. Unless a substantial question of law is established, going by Section 100 of the Code of Civil Procedure (in short, “Code”), the second appellate court cannot interfere in findings on facts. Here, the difficulty is that the lower appellate court has not entered any finding on fact. It is trite law that perverse appreciation of evidence may constitute a substantial question of law, if it has prejudicially affected the legal rights of any of the parties. Surprisingly, in this case, there is no appreciation of fact at all by the lower appellate court. But, considering the gamut of the entire disputes, I am of the view that a remission of the matter to the first appellate court has become inevitable for meeting the ends of justice. I am fully conscious of the principle that a remand may cause serious prejudice to the rights of the parties, especially when a long drawn litigation could be further prolonged to their detriment. But, slipshod attitude on the part of the first appellate court makes it impossible to pronounce on the rights of the parties effectively at this second appellate stage. 11. In the appeal, as per I.A.No.2775 of 2011, the appellant/5[th] defendant has attempted to produce additional evidence. Those documents are copies of registered documents pertaining to the property in dispute. Learned counsel for the appellant/5[th] defendant relying on paragraph 9 of the plaint, contended that the plaintiffs had knowledge of the fact that additional documents were in existence in favour of the defendants in the suit. But, still they did not choose to produce those 8 SA No.199/1998 documents. It is also pointed out that though the suit was one for recovery of possession and mesne profits, certain observations are made that the documents now produced along with the aforementioned interlocutory application are to be declared as void. It is therefore contended that those documents should have been produced by the plaintiffs themselves to support their case. However, none of the parties produced those documents either before the trial court or before the lower appellate court. I have carefully perused the averments in the affidavit filed in support of the application under Order XLI Rule 27 of the Code. It is clear from the aforementioned provision that no party can produce additional evidence in appeal as a matter of right. It must be established that the court from whose decree the appeal has been preferred has refused to admit evidence which ought to have been admitted or that notwithstanding the exercise of due diligence, the party could not produce such evidence, or that the appellate court may require any document to be produced to enable it to pronounce a judgment or for any other substantial cause. The averments in the affidavit are thoroughly unsatisfactory and do not show any reason to accept additional evidence under Order XLI Rule 27 of the Code. Therefore, I am not inclined to receive the additional evidence at this stage. However, as I have decided to remand the case to the lower appellate court, if the parties establish sufficient ground to receive evidence under Order XLI Rule 27 of the Code, the lower appellate court shall 9 SA No.199/1998 consider the plea at the appropriate time. 12. For the aforementioned reasons, I am of the view that the matter deserves a re-look by the lower appellate court from the factual perspective and the lower appellate court shall pronounce a proper judgment after discussing the evidence in the case, since it is the last court on facts. In the result, the appeal is allowed. The lower appellate court's judgment and decree are set aside. The matter is remitted back to the lower appellate court for a fresh decision on merits. The parties shall appear before the lower appellate court on 19.09.2016. The lower appellate court shall dispose of the appeal within a period of three months from the date of production of a copy of this judgment. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** **cks** SA No.199/1998 10 **A.Hariprasad, J. S.A.No.199 of 1998** **JUDGMENT** **26[th] August, 2016.**