Thankappan v. Bhargavi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **MONDAY, THE 10TH DAY OF FEBRUARY 2014/21ST MAGHA, 1935** ## **RSA.No. 710 of 2011 (A)** **--------------------------------[AGAINST THE JUDGMENT AND DECREE DATED 14-03-2011 IN A.S.NO. 103/2003 OF THE ADDITIONAL DISTRICT COURT, OTTAPALAM, ARISING OUT OF THE JUDGMENT AND DECREE DATED 31/03/2003 IN O.S.NO.81/1995 ON THE FILE OF MUNSIFF -MAGISTRATE - COURT,MANNARKAD]** **..........** **APPELLANT/ APPELLANT/DEFT. IN TRIAL COURT:** **-----------------------------------------------------------------------** **THANKAPPAN, S/O.VELAN, KANDICHANMARE, CHERUMKULATH THENKARA AMSOM, MANNARKADU TALUK, PALAKKAD.** **BY ADVS.SRI.M.P.SREEKRISHNAN, SMT.SHAHNA KARTHIKEYAN.** ## **RESPONDENT/RESPONDENT/PLAINTIFF IN TRIAL COURT:** **------------------------------------------------------------------------------------** **BHARGHAVI, W/O.PUNATHIL BHARKARAN, EZHAKKAD, MUNDOOR II VILLAGE, PALAKKAD TALUK, PIN-678 592.** **BY ADVS. SMT.T.D.RAJALAKSHMI, SRI.R.SREEHARI.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - ## R.S.A. No. 710 of 2011 - - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of February, 2014. ## **JUDGMENT** At the time of admission, the following questions of law were formulated: “1) When the respondent has set up title under Ext.A1 gift deed, which was disputed by the appellant and the said gift was not proved, whether courts below were justified in upholding the title of the respondent and granting a decree for recovery of possession. 2) Whether the courts below were justified in ignoring the description of the property covered under Ext.B1 and the description of the property subsequent to the amendment, while considering the genuineness of the gift deed?” ## 2. The facts absolutely necessary for the disposal of this appeal are as follows: The plaintiff in the suit claimed title over the suit property which has an extent of 1.21 acres on the basis of RSA.710/2011. 2 Ext.A1 gift deed by her father. According to her, she has been in possession and enjoyment of the property eversince then. In 1991 when her father died, and as an arrangement for cultivation, the property was handed over to the defendant. After expiry of the period, the property was sought return of and the defendant refused to return the property and hence the suit. 3. The defendant resisted the suit by contending that the plaintiff has no manner of right over the suit property and it was taken on oral lease by the predecessor-in-interest from the landlord long back and they are in continuous possession thereon. The allegation of alleged entrustment for cultivation etc. was denied. It is contended that the defendant is in absolute possession of the property and the plaintiff has no right, title and possession over the suit property. On the above grounds, the defendant prayed for a dismissal of the suit. RSA.710/2011. 3 4. On the above pleadings, issues were raised. The parties went to trial. The plaintiff examined herself as P.W.1 and Exts.A1 to A5(m) series marked. The defendant examined D.Ws.1 to 3 and had Exts. B1 to B6 series marked. Exts. C1 to C4 are the commission reports and plans. 5. The trial court relied on Ext.A4 which is an order passed by the Land Tribunal in an application for obtaining pattayam filed by the defendant under Section 72 of the Kerala Land Reforms Act in which the defendant had shown the predecessor-in-interest of the plaintiff as an intermediary and that application had been dismissed. Hence the courts below have held that the defendant has no manner of right over the property and the plaintiff has the right, title and interest over the plaint schedule property. 6. Shri. M.C.Sen, learned Senior Counsel appearing for the appellant, pointed out that the courts below have grossly erred both on facts and in law in decreeing the suit taking into consideration Ext.A4. According to him, even RSA.710/2011. 4 assuming that in Ext.A4 there is a mention of the predecessor-in-interest of the plaintiff as an intermediary, according to the learned counsel, that at best amounts to an admission. But admission can never confer title. According to him, the plaintiff filed the suit seeking recovery of possession on the strength of title and it is for the plaintiff to establish his title over the suit property and he cannot succeed on the basis of the defective title of the defendant. For the above proposition, learned counsel relied on the decision reported in Kunhaliumma v. Rabiumma (1997(2)K.L.T. 936), Sarojini v. Santha Trading Co. (1969 K.L.T. 412) and Ambika Prasad v. Ram Ekbal Rai (AIR 1966 SC 605). 7. Learned Senior Counsel went on to point out that the plaintiff has not produced any document to show that she had been or has been in possession of the property. Ext.A1 which is a gift deed executed in favour of the plaintiff is of no help to trace title of the plaintiff for, it does not refer to the earlier documents at all. Further, it is pointed out that only a RSA.710/2011. 5 certified copy has been produced and the reason offered for not producing the original is not satisfactory. These aspects have been omitted to be noticed by the court below and accordingly it is contended that the decree cannot be sustained. 8. Learned counsel appearing for the respondent on the other hand contended that this Court is exercising its jurisdiction under Section 100 of the Code of Civil Procedure and the jurisdiction is considerably limited in its scope and unless it is shown that the findings of the courts below are perverse, merely because a different view may be possible, it will not enable this Court to interfere with the judgment and decree of the courts below. Both the courts below on an appreciation of the evidence, namely, the oral testimony of P.W.1 and Ext.A4 came to the conclusion that the plaintiff has got title to the property and it could not be said that the findings are perverse. According to the learned counsel, may be that the original of the gift deed has not been produced. RSA.710/2011. 6 But that is not a ground to non-suit her. It is also contended that the defendant has no explanation as to how the name of the predecessor-in-interest happened to be mentioned in Ext.A4 and the explanation offered by the defendant cannot be accepted. According to the learned counsel, no grounds are made out to interfere with the judgments and decrees of the courts below. 9. It is true that in a suit based on title, the burden is on the plaintiff to establish title and the weakness of the defendant's case cannot enure to the benefit of the plaintiff. If any authority is required in this regard, that will be provided by the decision reported in Kunhaliumma v. Rabiumma (19967(2) K.L.T. 936) relied on by the learned counsel for the appellant wherein it reads as follows: “It is true that the allowing of the amendment prayed for would entail a trial of an issue regarding that item. But, it is well settled that an admission by itself cannot confer title to property. An admission of a pre-existing title where none in fact existed, is not RSA.710/2011. 7 sufficient to create title. Admission cannot convey title. If the position of law is that such an admission by itself cannot confer any title on Moyi Haji, whey could not defendants 16 to 26 be permitted to set up the plea that the title is really with Mammu Haji, their predecessor, by way of an amendment of the written statement, even if it be, by withdrawing the earlier admission? In my view, they can be permitted since their prior admission by itself cannot confer any title on Moyi Haji, if in fact none existed in him. In such a situation, the contention that an admission cannot be permitted to be withdrawn and a contrary plea permitted to be introduced by way of amendment can not have application. The said decision also referred to the decision reported in Sarojini v. Santha Trading Co. (1969 K.L.T. 412). 10. There can be no doubt that the proposition is well settled. It is for the plaintiff to establish his title in a suit for recovery of possession. 11. The trump card of the plaintiff is Ext.A4 document which is an order passed by the Land Tribunal dated 29.12.1976 whereby the O.A. which is alleged to have been RSA.710/2011. 8 filed by the defendant for assignment of right, title and interest of the landlord, was dismissed by the Tribunal since the applicant did not adduce any evidence in his favour. What is the significance of mentioning of the predecessor-in-interest of the plaintiff as an intermediary? It is true that D.W.1 was confronted with the said entry and he offered an explanation that the plaintiff's predecessor-in-interest was the Kariasthan and in that capacity his name was shown in the application. Whether that explanation is capable of acceptance or not is a different question. 12. The question is whether Ext.A2 by itself is sufficient to prove the title of the plaintiff. Apart from the said infirmity, the plaintiff heavily relied on Ext.A1 document which is alleged to be a gift deed executed in favour of the plaintiff. It mentions about an oral lease and partition in the family whereby the predecessor-in-interest of the plaintiff is alleged to have obtained the property. Significantly enough, no details RSA.710/2011. 9 of the lease is seen mentioned in the document nor is the details regarding the oral partition based on which the partition was effected are given. Whether the oral partition is acceptable is a different point. No details are available from Ext.A1 to trace the title of the plaintiff. 13. Apart from the above fact, at the time of evidence, P.W.1 has stated that she was able to produce only a certified copy because the original had been lost. No steps have been taken by the plaintiff on finding that the original has been lost. Whatever that be, apart from that fact there is yet another crucial aspect. The plaintiff as P.W.1 has deposed that she had mortgaged the property to a Bank and had deposited the original title deed with the said Bank. If that be so, the best evidence would have been to have other documents produced. For reasons best known to the plaintiff, she did not choose to have that document produced. 14. Apart from the above fact, the very claim made by the plaintiff is that the property was entrusted to the RSA.710/2011. 10 defendant to cultivate after the death of the father also looks suspicious. One may refer to the evidence of P.W.1 in this regard. 15. P.W.1 would say that she was put in possession of the plaint schedule property in 1971 and she used to take income therefrom. Not even a scrap of paper has been produced to establish the said fact. No receipts were produced. 16. Apart from this, even regarding entrustment, the plaintiff is not definite. At one point of time she stated that her father entrusted the property and in another portion she would say that it was after the death of her father that the property was entrusted to the defendant for cultivation. Whatever that be, as already noticed, it is difficult to accept the finding of the court below, that Ext.A4 is sufficient to confer title to the plaintiff. 17. Both sides have produced tax receipts. It is also significant to notice that the boundary shown in the plaint RSA.710/2011. 11 are not the boundaries shown by the Commissioner. Later the plaint was amended to bring it in conformity with the commissioner's report and plan. Whether the said amendment could be accepted or not is yet another aspect. 18. These vital aspects have been omitted to be noticed and the fact that the court below has simply relied on Ext.A4 as a document which is sufficient to confer title on the plaintiff. 19. Faced with the above situation, learned counsel for the respondent pointed out that his client may be given an opportunity to adduce further evidence. 20. The request appears to be a reasonable one and there is no reason to deny the same. In the result, this appeal is allowed, the judgments and decrees of the courts below are set aside and the matter is remanded to the trial court for fresh disposal in accordance with law and in the light of what has been stated above. The parties shall appear before the trial court on 10.3.2014. The RSA.710/2011. 12 court may make every endeavour to dispose of the suit as expeditiously as possible at any rate, within a period of six months from the date of appearance of the parties. P. BHAVADASAN, JUDGE sb.