Many vs Ayyappan
2021 Latest Caselaw 13499 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
    THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
                        R.S.A.No.758 OF 2020
Judgment and decree dated 28.2.2014 in O.S.No.324/2010 on the file of
                  the Munsiff's Court, North Paravur
Judgment and decree dated 09.12.2019 in A.S.No.41 of 2016 on the file
           of the Additional District Court-II, North Paravur


APPELLANTS/APPELLANTS/PLAINTIFFS 1 AND 3:

    1      MANY,
           AGED 63 YEARS,
           W/O.KARUNAN,
           VELUTHALIYIL HOUSE, NEAR JEWISH SYNAGOGUE,
           PALANTHURUTH KARA, CHENDAMANGALAM VILLAGE,
           PARAVUR TALUK, CHENDAMANGALAM P.O., PIN - 683 512.
    2      RADHA,
           AGED 55 YEARS,
           W/O.MURALI, MADATHIPARAMBIL HOUSE, NEAR MATHOOR
           JUNCTION, EROOR KARA, NADAMA VILLAGE, KANAYANNUR
           TALUK, EROOR NORTH P.O., PIN - 682 306.

               BY ADV SRI.R.MANOJ


RESPONDENTS/RESPONDENTS/DEFENDANTS 2 TO 6 &
PLAINTIFFS 2 AND 4:

    1      AYYAPPAN,
           AGED 71 YEARS, S/O.THAMPIKKUTTAN,
           THALIYATHUPARAMBU HOUSE, NEAR KOKKARNI MOOLA,
           MANNAM KARA, KOTTUVALLY VILLAGE, PARAVUR TALUK,
           MANNAM.P.O., PIN - 683 520.
    2      RAJAN,
           AGED 57 YEARS, S/O.THAMPIKKUTTAN,
           THALIYATHUPARAMBU HOUSE, NEAR POURNAMI STOP,
           PUTHENPALLI KARA, VARAPUZHA VILLAGE, PARAVUR TALUK,
           VARAPUZHA P.O., PIN - 683 517.
 R.S.A.No.758 of 2020


                                    ..2..


     3          CHANDRAN,
                AGED 51 YEARS, S/O.THAMPIKUTTYAN,
                THALIYATHPARAMBU HOUSE, NEAR POURNAMI STOP,
                PUTHENPALLI KARA, VARAPUZHA VILLAGE, PARAVUR TALUK,
                VARAPUZHA P.O., PIN - 683 517.
     4          INDRAN,
                AGED 47 YEARS, S/O.THAMPIKUTTYAN,
                THALIYATHPARAMBU HOUSE, OLANADU KARA,
                VARAPUZHA VILLAGE, PARAVUR TALUK, VARAPUZHA P.O.,
                PIN - 683 517.
     5          GOPI,
                AGED 45 YEARS, S/O.THAMPIKUTTAN,
                THALIYATHPARAMBU HOUSE, NEAR PUTHENPALLI STOP,
                PUTHENPALLI KARA, VARAPUZHA VILLAGE, PARAVUR TALUK,
                VARAPUZHA P.O., PIN -683 517.
     6          OMANA,
                AGED 62 YEARS, W/O.KUNJAN, POKKATHUPARAMBU HOUSE,
                NEAR JEWISH SYNAGOGUE, PALATHURUTH KARA,
                CHENDAMANGALAM VILLAGE, PARAVUR TLAUK,
                CHENDAMANGALAM P.O., PIN - 683 512.
     7          LEELA,
                AGED 49 YEARS, W/O.SHAJI, PALAKKAPARAMBU HOUSE,
                KOTTACHAL, KIZHAKKUMPURAM KARA, CHENDAMANGALAM
                VILLAGE, PARAVUR TALUK, CHENDAMANGALAM P.O.,
                PIN - 683 512.

         THIS    REGULAR   SECOND    APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 28.06.2021, THE COURT ON 01.07.2021 DELIVERED THE
FOLLOWING:
 R.S.A.No.758 of 2020


                                ..3..



                                                                [CR]
                           JUDGMENT

This appeal is directed against the judgment and

decree dated 28.2.2014 in O.S.No.324/2010 on the file of

the Munsiff's Court, North Paravur (hereinafter referred to

as 'the trial court') as confirmed by the judgment and

decree dated 09.12.2019 in A.S.No.41 of 2016 on the file

of the Additional District Court-II, North Paravur

(hereinafter referred to as 'the first appellate court'). The

appellants herein are the plaintiffs 1 and 3 in

O.S.No.324/2010 of the trial court. The suit was dismissed

and having suffered such a dismissal, the plaintiffs 1 and

3 instituted A.S.No.41/2016 before the first appellate

court. The first appellate court concurred with the findings

of the trial court and dismissed the appeal. For the sake of

brevity, the parties are referred to in this appeal as their

status in the original suit unless otherwise stated. R.S.A.No.758 of 2020

..4..

2. The suit was instituted for partition contending

that the plaint schedule property comprising of 4.05 Ares

situated in Sy.No.310/1 of Paravur Taluk belonged to the

father of the plaintiffs. Apart from the plaintiffs, their

father had other children. The 1st defendant was his wife

and respondents 2 to 8 are his children. The 1 st defendant

expired during the pendency of the first appeal. The 6 th

defendant was in possession of the plaint schedule

property. Even though the plaintiffs requested for a

partition, the same was not acceded to by the 6 th

defendant on the ground that his father had executed a

settlement deed as document No.5490 of Alangad Village

in favour of the 6th defendant. This document was

challenged by the plaintiffs on the ground that their father

aged 70 years did not have the disposing capacity to

execute such a deed. Hence, the plaintiffs filed the suit for R.S.A.No.758 of 2020

..5..

cancellation of the settlement deed and also for partition

of 4/10 share over the property.

3. The defendants entered appearance contending

that the plaintiffs were aware of the settlement deed right

from the very beginning in favour of the 6th defendant.

According to the defendants, their father had sound

disposing mind at the time of execution of the respective

settlement deed.

4. During the trial of the case, PWs.1 and 2 were

examined and marked Exts.A1 and A2 on the plaintiffs'

side. DWs.1 and 2 were examined on the defendants' side

and marked Exts.X1 and X2.

5. One of the issues framed by the trial court is as

to whether the plaintiffs are entitled to get a declaration

with respect to the settlement deed No.5490/1996. Based

on the evidence, the trial court entered a finding that the

deceased father had voluntarily executed the settlement R.S.A.No.758 of 2020

..6..

deed. It was found that the burden of proof to prove

fraud and other vitiating circumstance is on the plaintiffs

and they have failed to discharge the burden. On these

findings, the learned Munsiff dismissed the suit declining

the prayer for partition over the suit property. Challenging

the decision of the trial court, the plaintiffs 1 and 3

preferred the appeal. The first appellate court dismissed

the appeal confirming the judgment and decree of the trial

court. It was found by the first appellate court that the

settlement deed was executed following all procedural

requirements and the documents cannot be set aside.

6. Heard the learned counsel for the appellants.

7. The learned counsel for the appellants submits

that though the judgments of the two courts below are

concurrent in nature, they do not reflect adjudication of a

wider aspect of law and such shortcoming paves the way

for the second appeal. The learned counsel further R.S.A.No.758 of 2020

..7..

submits that Ext.A2 document very clearly specifies that

the property in question devolved on Thampikuttan, the

father of the 6th defendant and others through a certificate

of purchase of Alangad Land Tribunal bearing No.553/72

dated 14.12.1972. The learned counsel for the appellants

further submits that mere non-participation in the rent

and profits of the land of a co-sharer does not amount to

an ouster so as to give title by adverse possession to co-

sharers in possession. According to the learned counsel,

Thampikuttan applied for purchase certificate under the

Kerala Land Reforms Act as the head of the family and

that a valid purchase certificate issued in favour of

Thampikuttan would enure to the benefit of other co-

owners as well. Thus, it was argued that when the head of

the family applies for a purchase certificate, the same was

deemed to have been made on behalf of the other co-

owners also. To prove that, Thampikuttan was only a co- R.S.A.No.758 of 2020

..8..

owner/trustee of the property, the learned counsel for the

appellants has produced the certificate of purchase which

was not produced before the courts below as an additional

evidence in this appeal. Last but not the least, the learned

counsel for the appellants contended that late

Thampikuttan was residing with the 6th defendant and all

medical records relating to his ailment was with the 6 th

defendant.

8. In Karbalai Begum v. Mohd. Sayeed &

another [AIR 1981 SC 77], the Apex Court held that mere

non-participation in the rent and profits of the land of a

co-sharer does not amount to an ouster so as to give title

by adverse possession to the other co-sharer in

possession. Thus, it is contended that even though the

other co-owners were not eo nominee parties to the

purchase proceedings, as long as the certificates were

obtained by a person who was only a co-owner, the rights R.S.A.No.758 of 2020

..9..

obtained will certainly enure to the benefits of other co-

owners as well. In Saidali v. Amina Umma [1984 KLT

SN 58 (Case No.99)], a learned Single Judge of this Court

held that, a valid purchase certificate even if obtained by

one of the co-owners will certainly enure to the benefit of

other co-owners as well presumably for the reason that a

co-owner in possession is treated as a trustee for other

co-owners as well.

9. A new plea was raised for the first time before

this Court, whether the purchase certificate obtained by

late Thampikuttan was for and on behalf of other co-

owners as well. In other words, when the head of the

family applies for purchase certificate, the same was

deemed to have been made on behalf of other co-owners

also. Ext.A2 inter alia would show that late Thampikuttan

the father of the 6th defendant and others obtained title to

the property through a purchase certificate issued by the R.S.A.No.758 of 2020

..10..

Alangad Land Tribunal bearing No.553/72 dated

14.12.1972. The plea that the rights obtained by

Thampikuttan as per the purchase certificate enures to

the benefits of other co-owners as well cannot be raised

for the first time in second appeal. No such plea has been

taken at any stage by the appellants ante or postlite or in

the pleadings. In such a situation, the appellants cannot

be allowed to raise the question of constructive trust in

second appeal. When a mixed question of law and fact is

raised for the first time in second appeal touching the

construction of a document which was not produced

before the trial court, it is not expedient in the interest of

justice to entertain such a plea. In a second appeal, it is

not open to the High Court to go into the questions which

are neither pleaded nor dealt with by the trial court or the

first appellate court.

R.S.A.No.758 of 2020

..11..

10. Section 100 of the Code of Civil Procedure, the

jurisdiction of the High Court to interfere with the

judgment of the courts below is confined to hearing on

substantial questions of law. Interference with the finding

of facts by the High Court is not warranted if it involves

re-appreciation of the evidence on the strength of mixed

questions of law and facts. In the case at hand, on the

basis of the evidence on record, the trial court and the

first appellate court had concurrently arrived at a finding

of fact. The High Court, in second appeal, cannot reverse

the said concurrent findings, particularly when this Court

has not been able to find out any material that the

findings of the trial court as well as the first appellate

court were palpably erroneous. The High Court, it is well

settled, while exercising jurisdiction under Section 100 of

the C.P.C. cannot reverse the concurrent findings of facts

on the ground that on the facts found by the two courts R.S.A.No.758 of 2020

..12..

below, another view was possible. To be a substantial

question of law involved in the case, there must be first a

foundation for it laid in the pleadings and the question

should emerge from the sustainable findings of fact

arrived at by courts of facts and it must be necessary to

decide that question of law for a just and proper decision

of the case. The question whether late Thampikuttan

obtained the purchase certificate for and on behalf of all

the co-owners is a mixed question of fact and law which

cannot be raised first time in second appeal. No

substantial questions of law are involved in this case.

Hence, this R.S.A. is liable to be dismissed in limine.

For the above reasons, this R.S.A. is dismissed.

Considering the facts and circumstances, there will be no

order as to costs. Pending applications, if any, stand

disposed of.

Sd/-

                                                    N.ANIL KUMAR,
skj                                                    JUDGE