Prasad vs Pushpavalle
2022 Latest Caselaw 9844 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                  THE HONOURABLE MRS. JUSTICE M.R.ANITHA

         WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944

                           RSA NO. 694 OF 2021

  AGAINST THE JUDGMENT AND DECREE IN A.S. NO.171/2016 ON THE FILE OF THE

     ADDITIONAL DISTRICT JUDGE II (SPECIAL), KOTTAYAM DATED 02.8.2021

  AGAINST THE JUDGMENT AND DECREE IN O.S. NO.556/2012 ON THE FILE OF THE

            ADDITIONAL MUNSIFF COURT, KOTTAYAM DATED 20.5.2016

APPELLANTS/APPELLANTS/DEFENDANTS:
      1     PRASAD, AGED 59 YEARS
            S/O. RAMANKUTTY, EZHUPATHILCHIRA VEETIL, CHINGAVANAM KARA,
            NATTAKOM VILLAGE, KOTTAYAM DISTRICT-686 531
      2     PRASHOBH, AGED 32 YEARS
            S/O. PRASAD, EZHUPATHILCHIRA VEETIL, CHINGAVANAM KARA,
            NATTAKOM VILLAGE, KOTTAYAM DISTRICT-686 531
      3     PRASANTH, AGED 29 YEARS
            S/O. PRASAD, EZHUPATHILCHIRA VEETIL, CHINGAVANAM KARA,
            NATTAKOM VILLAGE, KOTTAYAM DISTRICT,686 531
            BY ADVS.
            PRAFIN JOSEPH ZACHARIA
            PRASEENA ELIZABETH JOSEPH

RESPONDENTS/2ND RESPONDENT AND ADDITIONAL RESPONDENTS3 TO 5/2ND PLAINTIFF

AND LEGAL HEIRS OF DECEASED 1ST PLAINTIFF:
      1     PUSHPAVALLE, AGED 63 YEARS
            W/O. GOPI, PUSHPAGIRI VEETIL, KZHIPURAYIDOM   KARA,
            MANARCADU VILLAGE, KOTTAYAM TALUK 686019.
      2     RENJITH, AGED 40 YEARS
            S/O. GOPI, PUSHPAGIRI HOUSE, KUZHIPURAYIDOM   KARA,
            MANARCADU VILLAGE, KOTTAYAM TALUK 686 019.
      3     KANNAN, AGED 37 YEARS
            S/O. GOPI, PUSHPAGIRI HOUSE, KUZHIPURAYIDOM   KARA,
            MANARCADU VILLAGE, KOTTAYAM TALUK-686 019.
      4     MAGI, AGED 38 YEARS
            D/O. GOPI, PUSHPAGIRI HOUSE, KUZHIPURAYIDOM   KARA,
            MANARCADU VILLAGE, KOTTAYAM TALUK, 686019.
            BY ADVS.
            C.S.MANILAL -R1 TO R4
            S.NIDHEESH - R1 TO R4

      THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 29.08.2022, THE COURT ON 31.8.2022 DELIVERED THE FOLLOWING:
 RSA No.694 of 2021
                                         2




                                   JUDGMENT

Dated this the day 31st of August, 2022

This appeal has been directed against the judgment and

decree in A.S. No.171/2016 on the file of Additional District

Court-II (Special), Kottayam, which arose out of judgment and

decree in O.S. No.556/2012 on the file of Additional Munsiff's

Court, Kottayam.

2. The suit has been filed for declaration of title and

also for recovery of possession. The plaint schedule property

originally belonged to the mother of 2 nd plaintiff and mother

transferred property by virtue of sale deed No.2037/1991 of

Sub Registrar Office, Kottayam to the plaintiffs. At the

instigation of the 1st defendant, the mother instituted O.S.

No.251/1997 as well as O.S. No.529/2005 challenging the sale

deed executed in favour of the plaintiffs and both suits got

dismissed. The mother died in the year 2008. On 12.6.2012

the plaintiffs went to the plaint schedule property so as to

construct a residential building therein which was obstructed

by the defendants. Hence the suit.

RSA No.694 of 2021

3. The defendants filed written statement disputing the

description of the plaint schedule property. According to them

the defendants are in possession of the entire 26 cents of land

owned by the mother. It is contended that sale deed

No.2037/1991 was got executed by playing fraud upon the

mother and the mother filed O.S.251/1997 and O.S.

No.629/2008, but she was unable to attend the court when the

cases were listed for trial due to her ill-health and both suits

happened to be dismissed. The sale deed No.2037/1991 never

came into existence and the plaintiffs never took possession of

plaint schedule property by virtue of the document. No

consideration was paid by the 2 nd plaintiff to the mother. The

plaintiffs have no possession over the plaint schedule property.

4. PW1 and PW2 examined and Exhibits A1 to A10

were marked from the side of the plaintiffs. DW1 and DW2

examined from the side of the defendants. The commission

report was marked as C1, C1(a) and C1(b).

5. The Trial Court on evaluating the facts and

circumstances and evidence adduced found that Exhibit A1

proves right and title of the plaintiffs over the plaint schedule

property and decreed the suit declaring the plaintiffs right over RSA No.694 of 2021

the plaint schedule property and recovery of possession as

sought for was also allowed. Against which A.S. No.171/2016

was filed by the defendants/appellants and the learned 2 nd

Additional District Judge on re-appreciating the facts,

circumstances and evidence confirmed the judgment and

decree passed by the trial court and dismissed the appeal.

6. Having lost in both forums appellants approached

this Court in second appeal. Notice was issued to the

respondents and both sides were heard.

7. The plaintiffs claims right over the plaint schedule

property having an extent of 10 cents by virtue of Exhibit A1

certified copy of sale deed No.2037/1991 executed by the

mother in favour of the plaintiffs. 1 st defendant is the brother

of 2nd plaintiff and defendants 2 and 3 are the children of 1 st

defendant. The mother during her life time had filed O.S.

No.251/1997 to declare Exhibit A1 as void. Exhibit A3 is the

certified copy of plaint in O.S. No.251/1997. The certified copy

of the written statement filed by the defendants in O.S.

No.251/1997 is marked as Exhibit A4. Exhibit A5 is the

judgment in O.S. No.251/1997 and Exhibit A6 is the decree in

O.S. No.251/1997 which would prove that the suit was RSA No.694 of 2021

dismissed for non-appearance of the plaintiffs. Exhibit A7 is the

certified copy of the plaint in O.S. No.529/2005 filed by the

mother of the 2nd plaintiff seeking a perpetual injunction for

restraining the 2nd plaintiff in the present case from trespassing

into 5 cents of land (2.40 Ares). Exhibit A8 is the written

statement in O.S. No.529/2005 wherein plaintiffs therein

reiterated their right on the basis of Exhibit A1 sale deed.

Exhibit A9 is the certified copy of the judgment proving the

dismissal of O.S. No.529/2005 for the absence of the plaintiffs

in that case. The 2nd plaintiff was examined, deposed in terms

with the plaint with regard to possession of the plaint schedule

property. Exhibit A1 is the certified copy of the sale deed. It

has come out that the 2 nd plaintiff in O.S. No.259/1997 stated

in Exhibit A3 plaint that the defendants threw the sale deed at

plaintiffs and in that course during a scuffle the mother of the

2nd plaintiff came into possession of the original sale deed. So

the fact that the original sale deed was with the mother as

admitted by her in the earlier proceedings.

8. The plaintiffs also produced tax receipts Exhibits A2

and A2(a) proving payment of tax with respect to the plaint

schedule property dated 05.06.1997 and 15.01.2016. So, it RSA No.694 of 2021

would prove plaintiffs title and possession over the plaint

schedule property.

9. The learned counsel for the appellants contended

that the suit is bad for non-jointer of necessary parties. It is

also contended that there is no pleadings in the plaint with

regard to passing of consideration and there is no

consideration for Exhibit A1 sale deed and hence it is void and

unenforceable. He would also contend that plaint schedule

property is not identified.

10. So also on going through the judgment passed by

the trial court as well as 1 st Appellate Court it could be seen

that there is no such contention and no issue also framed with

regard to non-jointer of necessary parties. Appellants cannot

raise a plea of non-jointer of the 2nd appellate stage.

11. According to the learned counsel for the appellants,

the other sharers also ought to have been impleaded since the

mother is no more and the property is owned by the mother.

But it is the specific contention of the defendants that they are

in possession of the entire 26 cents of land owned by the

mother. Since, the defendants alone are disputing the title of

the plaintiffs, there is no necessity to implead the other legal RSA No.694 of 2021

heirs when her specific case is that the plaint schedule

property has been sold by the mother to her.

12. The next contention of the learned counsel is that

there is no pleadings in the plaint with regard to the passing of

consideration. But the learned counsel for the plaintiffs in this

context would take my attention to the specific averments in

the plaint with regard to the execution of sale deed by the

mother in her favour by virtue of document No.2037/1991.

Order VI Rule 2 of the Code of Civil Procedure would provides

that pleadings should contain statement in concise form of

material facts Section 54 of Transfer of Property Act which

defines 'sale' as a transfer of ownership in exchange for a price

paid or promised or part paid or part promised. Moreover,

Exhibit A1 is the registered sale deed and there is a

presumption regarding the genuineness of registered sale deed

and onus is upon the person who challenges the same to prove

otherwise. Here, no attempt was made by the defendants

either to examine the Sub Registrar at whose instance Exhibit

A1 is happened to be registered and no other convincing

materials is forthcoming to prove that Exhibit A1 has been

executed by playing fraud or misrepresentation upon RSA No.694 of 2021

the mother. It is well settled that whenever such contention

regarding fraud and misrepresentation with regard to the

registered document is raised by a party the burden is upon

them establish the same by adducing any convincing evidence.

(See Prem Singh and others v. Birbal 2006 (5) SCC 353;

Mathu v. Cherichi 1990 (1) KLT 416). So, in the absence of

any materials in that regard the contention of the defendants

that Exhibit A1 is a document got executed by playing fraud

and misrepresentation upon the mother is only to be

discarded.

13. Next contention is with regard to the identification

of plaint schedule property. It has been found by the courts

below that a commission report, mazhar and survey plan were

produced from the side of the plaintiffs and got marked as

Exhibits C1, C1(a) and C1 (b). The surveyer was examined as

PW2. Evidence of PW2 and C1(b) survey plan showed that

plaint schedule property is identified and demarcated as

"FGHJKLF" and entire property has been demarcated in the

plan as "MNOPQRKLM". It has also been concurrently found

that though PW2 was cross examined at length nothing was

brought out to discredit his testimony. So, the contention of RSA No.694 of 2021

the learned counsel that the plaint schedule property is not

identified also is not sustainable.

14. Hence, it has come out in evidence that two suits

were filed earlier by the mother which according to the plaintiff

have been filed at the instigation of the defendants. Both suits

were happened to be dismissed for default and the mother is

no more. When she went to the plaint schedule property on

12.06.2012 for the purpose of constructing a house in the

plaint schedule property, the defendants obstructed. The

contention raised by the defendants would also fortify the

allegations in the plaint regarding the obstruction caused by

them, since he is claiming right over the plaint schedule

property and also denying the execution of the sale deed by

the mother in favour of the plaintiffs. Hence, cause of action

alleged by the plaintiff is also well established. The plaintiffs

have proved by oral and documentary evidence the title and

possession over the plaint schedule property. On a close

scrutiny of the judgment and decree passed by the court below

would show that facts, circumstances and evidence adduced

have been evaluated in a proper perspective. Consequently,

declaration of title and recovery of possession granted by the RSA No.694 of 2021

courts below is only to be upheld. So, I do not find any

question of law or any substantial question of law emerging for

consideration in this second appeal.

In the result, the appeal is found to be devoid of any

merit and hence dismissed. No cost.

Sd/-

M.R.ANITHA JUDGE

SMF