Kerala High Court
K.Pottiammal @ Maniammal vs S.G.Mani on 19 April, 2024
Author: T.R. Ravi
Bench: T.R.Ravi
R.S.A.No.1000 of 2005
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 19TH DAY OF APRIL 2024 / 30TH CHAITHRA, 1946
RSA NO. 1000 OF 2005
AGAINST THE JUDGMENT DATED 30.10.2004 IN AS NO.69 OF 2004
OF ADDITIONAL DISTRICT COURT (ADHOC-I), THODUPUZHA ARISING
OUT OF THE JUDGMENT DATED 31.07.2000 IN OS NO.5 OF 1998 OF
MUNSIFF COURT, DEVIKULAM
APPELLANTS/RESPONDENTS/DEFENDANTS:
1 K.POTTIAMMAL @ MANIAMMAL
W/O.LATE SUBRAMANI,PUTHOOR GRAMAM, KANTHALLOOR.
2 CHINNADURAI, S/O.LATE SUBRAMANI
DO. DO.
3 S.GANESAN, S/O.LATE SUBRAMANI
DO. DO.
4 S.RAJAMMAL, W/O.RAMER DO. DO.
5 VELUCHAMY, S.O.LATE SUBRAMANI
DO. DO.
BY ADV.SMT.SUMATHI DANDAPANI (SR.)
SRI MILLU DANDAPANI
RESPONDENTS/APPELLANTS/PLAINTIFFS:
1 S.G.MANI
PUTHOOR GRAMAM, KANTHALLOOR VILLAGE,
DEVIKULAM TALUK.
2 S.G.MURUKAN, S/O.LATE GURUSWAMY ASARY
PUTHOOR GRAMAM, KANTHALLOOR VILLAGE,
DEVIKULAM TALUK.
BY ADVS.SRI.VIJAYAN
SRI.MOHAN JACOB GEORGE
SMT.P.V.PARVATHI
SRI.K.N.PRAMOD KUMAR MENON
SMT.REENA THOMAS
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
18.12.2023, THE COURT ON 19.4.2024 DELIVERED THE FOLLOWING:
R.S.A.No.1000 of 2005
2
T.R. RAVI, J.
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R.S.A.No.1000 of 2005
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Dated this the 19th day of April, 2024
JUDGMENT
This Second Appeal has been filed by the defendants in a suit for injunction. The trial court dismissed the suit and the First Appellate Court reversed the judgment of the trial court. The appeal has been admitted on the following questions of law;
1. Has not the lower appellate court erred in relying on photocopies and true copies of documents produced at the appellate stage for want proof?
2. Has not the lower appellate court erred in holding that there is nothing to show any right of possession of the plaint schedule property having been exercised by the defendants, mainly relying on Exhibit A2 - photocopy of a sale deed (wrongly mentioned as Exhibit A3 in paragraph 11 of the Judgment in A.S.No.69/04) especially when the plaintiffs themselves challenged Exhibit A 2 as a forged Sale deed?
3. Has not the lower appellate court erred in appreciating the pleadings and evidence in its correct perspective and in passing a decree in favour of plaintiffs by reversing the findings of fact of trial court which had the opportunity to see and assess the R.S.A.No.1000 of 2005 3 demeanor of witnesses?
2. The facts are as follows;
The plaint schedule property belonged to the predecessor-in- interest of the plaintiffs. The suit was filed in 1998, praying for a decree of injunction against the defendants, contending that after the death of their father, the plaintiffs continued in possession and that the defendants attempted to trespass into the property. The defendants claimed that the father of the plaintiffs had executed an agreement with the father of the defendants in 1978, agreeing to sell the plaint schedule property. Ext.B1 is the agreement. It is contended that the entire sale consideration had been received by the father of the plaintiffs, but the document had not been executed since the parties were relatives, and the basic tax of the property was also being paid by the defendants. The agreement relied on by the defendants was executed 20 years prior to the suit.
3. Originally, before the trial court, Ext.A1 was the only document produced on the side of the plaintiff which is a basic tax receipt issued on 29.12.1997 in the name of Smt.S.G.Maniyammal. On the side of the defendants Exts.B1 and B2 series and Ext.B3 have been produced. Ext.B1 is the agreement dated 27.2.1978 R.S.A.No.1000 of 2005 4 between the predecessors of the parties. Ext.B2 series are all basic tax receipts ranging from 1978 to 1997 and Ext.B3 is the copy of the electoral card No.8 of Ward No.2 in the name of Subramaniam, the predecessor of the defendants and others. The plaintiffs were examined as PW1 and PW2, the 2nd defendant was examined as DW1 and the attestor of Ext.B1 agreement was examined as DW2. The trial court dismissed the suit finding that the plaintiffs were not able to establish their case of possession since the suit was only for injunction against trespass.
4. Aggrieved by the judgment and decree of the trial court, the plaintiffs preferred an appeal before the First Appellate Court. The First Appellate Court reversed the decree relying on the documents which have been produced at the appellate stage. The main contention of the appellants before this Court is that the First Appellate Court ought not to have accepted the documents in evidence going by the requirement of Order XLI Rule 27 of the Code of Civil Procedure, 1908. It is hence submitted that the judgment of the First Appellate Court is liable to be interfered with. Reliance was placed on the judgment of the learned Single Judge of this Court in Navabharath Kuries & Trading Co. v. C.E.Job R.S.A.No.1000 of 2005 5 & Ors.[2007 (1) KLJ 22] and the judgment of the Hon'ble Supreme Court in Malayalam Plantations Limited v. State of Kerala & Anr. [(2010) 13 SCC 487]. The counsel for the respondents/plaintiffs sought to justify the judgment of the First Appellate Court by contending that the trial court had gone wrong in finding in favour of the defendants solely based on an unregistered agreement to sell. It is contended that no title passes on the execution of an agreement to sell and no claim under Section 53A of the Transfer of Property Act can also be raised by the defendants. Reliance was placed on the judgment of the Karnataka High Court in Chandramma Manjunatha v. Kalamma [2022 KHC 5539], the judgment of the Bombay High Court in Ghanshyam Deoram Gaikwad v. Samshon John Gaikwad & Anr. [2020 KHC 3443], judgments of the Hon'ble Supreme Court in Kusum Ingots & Alloys Ltd. v. Union of India & Anr. [(2004) 6 SCC 254], Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Anr. [2011 KHC 4913] and Balram Singh v. Kelo Devi [2022 LiveLaw (SC) 800].
5. I have heard the counsel on either side in extenso and considered the contentions raised and the judgments relied on. R.S.A.No.1000 of 2005 6
6. On going through the records, it is clear that the Appellate Court had accepted the additional evidence in the form of Exts.A2 to A20 and Exts.B4 to B7. Many of the documents are photocopies. From the records of the case, it is seen that there is not even an order on the application for the production of documents as required under Order XLI Rule 27 CPC. There is no consideration of any of the aspects that are required to be considered while permitting additional evidence to be adduced at the appellate stage. It is seen that the application for the production of documents was filed along with an affidavit that did not even contain the ingredients of Order XLI Rule 27 CPC and an objection stating that the requirements of Order XLI Rule 27 CPC have not been met, had been filed by the defendants. The documents are seen to have been marked even without an order on the petition, on merits. The First Appellate Court has hence gone wrong in accepting additional evidence at the appellate stage even without a proper application and without even examining anybody to prove the documents. The said procedure followed is wrong and no reliance could have been placed on any of the documents accepted at the appellate stage. The judgments in R.S.A.No.1000 of 2005 7 Malayalam Plantations Limited (supra) and Navabharath Kuries (supra) justify the above conclusion. The judgments relied on by the counsel for the respondents relate to the merits of the contentions of the parties. I do not propose to go into the merits, having found that the procedure followed by the First Appellate Court in accepting evidence was wrong. I have also gone through the documents to satisfy myself as to whether the said documents are required for a proper decision in the case on hand. I am of the opinion that the matter requires to be remanded back for fresh consideration by the Appellate Court, after affording an opportunity to produce additional evidence.
7. In the above circumstances, this appeal is allowed. The judgment and decree in A.S.No.69 of 2004 on the file of the Additional District Court (Adhoc-I), Thodupuzha is set aside and the case is remanded back to the Appellate Court for fresh consideration and disposal of A.S.No.69 of 2004. The parties are at liberty to apply for permission to produce additional evidence at the appellate stage. The application for the production of additional evidence shall be considered in accordance with Order XLI Rule 27 CPC by the Appellate Court. The parties are directed R.S.A.No.1000 of 2005 8 to appear before the First Appellate Court on 22.05.2024.
Sd/-
T.R. RAVI JUDGE dsn R.S.A.No.1000 of 2005 9 RESPONDENTS' EXTS:
EXT.A21: COPY OF THE JUDGMENT IN OS No.10/1998 OF MUNSIFF'S COURT, DEVIKULAM ANNEXURE A22: CERTIFIED COPY OF JUDGMENT DATED 22.01.2001 IN OS No.240/1998 OF MUNSIFF'S COURT, DEVIKULAM ANNEXURE A23: CERTIFIED COPY OF DECREE DATED 22.1.2001 IN OS No.240/1998 OF MUNSIFF'S COURT, DEVIKULAM.