Kerala High Court
Devakikutty vs Suma Ramachandran on 5 October, 2021
OP(C).324/17 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
OP(C) NO. 324 OF 2017
AGAINST THE ORDER/JUDGMENT IN OS 200/2012 OF SUB COURT,
OTTAPPALAM, PALAKKAD
PETITIONER/S:
1 DEVAKIKUTTY
AGED 64 YEARS
AGED 64 YEARS, D/O.THE LATE RADHAKRISHNAN NAIR,
DEVI NIVAS, VALLAPPUZHA, PATTAMBI TALUK, PALAKKAD
DISTRICT.
2 V.NARAYANA PRASAD
60 YEARS, S/O.THE LATE RADHAKRISHNAN NAIR, DEVI
NIVAS, VALLAPPUZHA, PATTAMBI TALUK, PALAKKAD
DISTRICT.
BY ADVS.
SRI.VINOD RAVINDRANATH
SRI.ASHWIN SATHYANATH
SRI.M.DEVESH
SRI.K.C.KIRAN
SMT.MEENA.A.
SRI.VINAY MATHEW JOSEPH
RESPONDENT/S:
1 SUMA RAMACHANDRAN
D/O.JANARDHANAN NAIR, DILEEP VIHAR, POST KAYILIYAD,
OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679122.
2 RAMACHANDRAN
DILEEP VIHAR, POST KAYILIYAD, OTTAPALAM TALUK,
PALAKKAD DISTRICT, PIN-679122.
3 SOBHANA GOVIND
D/O.KANJANGAT THE LATE JANARDHANAN NAIR,
OP(C).324/17 2
KURUVATTOOR AMSOM, KAYILIYAD DESOM, POST KAYILIYAD,
OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679122.
4 SUDHA UNNIKRISHNAN
D/O.KANJANGAT THE LATE JANARDHANAN NAIR,
KURUVATTOOR AMSOM, KAYILIYAD DESOM, POST KAYILIYAD,
OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679122.
5 JAYAKKRISHNAN
S/O.THE LATE RADHAKRISHNAN NAIR, DEVI NIVAS,
VALLAPPUZHA, PATTAMBI TALUK, PALAKKAD DISTRICT,
PIN-679336.
BY ADVS.
SRI.KALEESWARAM RAJ
SRI.VARUN C.VIJAY
KUM.A.ARUNA
KUM.THULASI K. RAJ
SMT.MAITREYI SACHIDANANDA HEGDE
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
29.7.2021, THE COURT ON 05.10.2021 DELIVERED THE FOLLOWING:
OP(C).324/17 3
V.G.ARUN, J.
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O.P(C).No. 324 of 2017
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Dated this the 5th day of October, 2021
JUDGMENT
The petitioners are supplementary plaintiffs 2 and 3 in
O.S.No.200 of 2012 on the files of the Subordinate Judge's Court,
Ottapalam. The suit is filed for permanent prohibitory injunction
restraining the defendants and their men from encroaching upon
plaint schedule properties and in the alternative, to direct the
defendants to hand over vacant possession of the plaintiffs
schedule properties to the plaintiffs. In the plaint it is averred that
the properties were in the possession and enjoyment of
Radhakrishnan Nair, the predecessor-in-interest of the plaintiffs, by
virtue of a partition agreement entered into between
Radhakrishnan Nair and his brother Janardhanan Nair on
15.2.1958. The defendants are the wife and children of
Janardhanan Nair. They had earlier filed a suit for partition as
O.S.No.65 of 2006. The partition agreement produced by the
defendants and marked as Exhibit B1 was impounded by the court
and sent to the District Collector for initiating proceedings under
Section 39 of the Kerala Stamp Act. By Ext P1 judgment, O.S. No.
65 of 2006 was dismissed with cost finding that the properties
were not partible in view of the an oral partition, as disclosed by
Exhibit B1.
2. The petitioners along with the other legal heirs of
Radhakrishinan Nair, filed O.S.No.200 of 2012 alleging that even
after Exhibit P1 judgment, the legal heirs of Janardhanan Nair
attempted to trespass into the portion set apart to the share of
Radhakrishnan Nair. After the suit was listed for trial, the
petitioners filed I.A.No.164 of 2017 praying for reception of three
documents. The first document being the certified copy of the
partition agreement dated 15.2.1958 marked as Ext. B1 in O.S.65
of 2006. The trial court accepted document numbers two and three
and rejected the prayer for accepting the partition agreement for
the reason that the document was impounded in O.S.No.65 of
2006 and the matter is pending before the District Collector.
According to the trial court, as the procedure for impounding is not
over, the document could not have been marked and is hence
inadmissible in evidence. Aggrieved, this original petition is filed.
3. Sri.T.Krishnan Unni, learned Senior Counsel for the
petitioners, made a singular and forceful contention that
acceptance of the document and its admissibility are different
aspects and the court below had rejected the application for
accepting the document, without taking note of this distinction.
Moreover, the partition karar was accepted in evidence and
marked as Exhibit B1 in O.S.No.65 of 2006 and copy of the
document is being produced only for the collateral purpose of
showing the plaint schedule.
4. As rightly contended by the learned Senior Counsel
acceptance of a document and its admissibility in evidence are
different aspects. The Apex Court in K. Mallesh v. K. Narender,
(2016) 1 SCC 670 has held that the admissibility, reliability and
registrability of the documents shall be considered independently
only at the time of hearing of the trial and not prior thereto.
5. Here, the document being a certified copy obtained
from court, should have been accepted, subject to its acceptability
and relevance. Being so, the impugned order is liable to be set
aside.
In the result, the original petition is allowed. Exhibit P6 order
is set aside. The trial court shall accept Document No.1 in I.A.
No.164 of 2017, subject to its relevance and admissibility to be
decided at the appropriate stage.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX OF OP(C) 324/2017
PETITIONER EXHIBITS
EXHIBIT P1- TRUE COPY OF THE JUDGMENT IN
O.S.NO.65/2006, ON THE FILE OF THE COURT
OF THE SUBORDINATE JUDGE OTTAPALAM DATED
11/01/2010.
EXHIBIT P2- TRUE COPY OF THE JUDGMENT IN
O.S.NO.200/2012, ON THE FILE OF THE COURT
OF THE SUBORDINATE JUDGE OTTAPALAM DATED
09/06/2012.
EXHIBIT P3- TRUE COPY OF THE WRITTEN STATEMENT FILED
BY DEFENDANTS 1 AND 2 DATED MARCH, 2013.
EXHIBIT P4- TRUE COPY OF THE WRITTEN STATEMENT FILED
BY DEFENDANTS 3 AND 4 DATED 17/11/2014.
EXHIBIT P5- TRUE COPY OF I.A.NO.164/2017 DATED
20/01/17.
EXHIBIT P6- TRUE COPY OF THE ORDER OF THE COURT OF
THE SUBORDINATE JUDGE OF OTTAPALAM IN
I.A.NO.164/2017 IN O.S.NO.200/2012 ON ITS
FILE DATED 21/07/2017.
