Krishnamma vs Shamsudeen
2023 Latest Caselaw 8792 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
         THIN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
  MONDAY, THE 14TH DAY OF AUGUST 2023 / 23RD SRAVANA, 1945
                      RSA NO. 240 OF 2007
  AGAINST THE ORDER/JUDGMENT IN OS 1162/1991 OF I ADDITIONAL
               MUNSIFF COURT, THIRUVANANTHAPURAM
         AS 256/1997 OF III ADDITIONAL DISTRICT COURT,
                       THIRUVANANTHAPURAM
APPELLANTS/APPELLANTS/PLAINTIFFS:

          KRISHNAMMA
          THUDUVILAKATHU VEEDU,
    1     THYVILAKAM HOUSE,,
          PATHIRIPALLY MURI,
          CHETTIVILAKAM PAKUTHY.
          GIRISH CHANDRAN,
          S/O.SHANMUGHAM
          RESIDING AT THUDUVILAKATHU VEEDU,,
    2
          THYVILAKAM HOUSE,
          PATHIRIPALLY MURI,,
          CHETTIVILAKAM PAKUTHY.
          VYJAYANTIMALA,
          D/O.KRISHNAMMA
          RESIDING AT THUDUVILAKATHU VEEDU,,
    3
           THYVILAKAM HOUSE,
          PATHIRIPALLY MURI,,
          CHETTIVILAKAM PAKUTHY.
          SURESHKUMAR,
          D/O.SHANMUGHAM
          RESIDING AT THUDUVILAKATHU VEEDU,,
    4
          THYVILAKAM HOUSE,
          PATHIRIPALLY MURI,,
          CHETTIVILAKAM PAKUTHY.
    5     BALACHANDRAN, S/O.SHANMUGHAN
          RESIDING AT THUDUVILAKATHU VEEDU,,
          THYVILAKAM HOUSE,
          PATHIRIPALLY MURI,,
 RSA No.240 of 2007
                                   2

             CHETTIVILAKAM PAKUTHY.
             BY ADVS.
             SRI.R.S.KALKURA
             SRI.M.S.KALESH
             SRI.KIRAN SANKAR
             SRI.V.VINAY MENON


RESPONDENTS/RESPONDENTS/DEFENDANTS:

             SHAMSUDEEN, RESIDING AT TC NO.36/1147,
     1       VALLAKADAVU, PERUNTHANNI WARD,,
             THIRUVANANTHAPURAM.
             VENU, SYLE VENU'S STITCHING CENTRE
     2       T.C.NO.36/1148, VALLAKADAVU,,
             THIRUVANANTHAPURAM.
             SHAHUL HAMEED, STYLE 'SHA INDUSTRIES',
     3       T.C.NO.1149, VALLAKADAVU,
             THIRUVANANTHAPURAM.
             M.H. NAKKIRKHAN,
             S.M. MANZIL
     4
             VALLAKKADAVU,
             THIRUVANANTHAPURAM.
             SOFIA BEEGUM
             S.M. MANZIL
     5       VALLAKKADAVU,
             THIRUVANANTHAPURAM.


     THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 14.08.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 RSA No.240 of 2007
                                               3




                           MOHAMMED NIAS C.P.J
                      ......................................................
                                RSA No.240 of 2007
                 .................................................................
                 Dated this the 14th             day of August, 2023


                                      JUDGMENT

The plaintiffs in OS No. 1162 of 1991 on the files of the I Additional

Munsiff Court, Thiruvananthapuram, the appellants herein, are aggrieved

by the judgment in AS No.256 of 1997 of the Additional District Court III,

Thiruvananthapuram, that confirmed the dismissal of the suit filed by

them for declaration and recovery of possession. The plaintiff contended

that the property originally belonged to one Shanmugam as per the

Partition deed dated 7.12.1950 (Ext.A1). The first plaintiff is his wife, and

plaintiffs 2 to 5 are his children. A Gift Deed was executed on

30.11.1951 in favour of the plaintiffs 1 to 3 in respect of the plaint

schedule property. Subsequently, five more children were born to the

first plaintiff through Shanmugam. It is stated in the plaint that the suit is

filed for their benefit as well. The plaint schedule is an extent of 2 cents

of land and a shop building therein. In the plaintiff's case, the first

defendant was a close friend of Shanmugam, and the first defendant was

looking after the plaint schedule property. Even after the execution of the RSA No.240 of 2007

gift deed, Shanmugam used to collect the rent from the tenants

whenever he visited the property, and on other occasions, the first

defendant used to collect the rent on his behalf. It is also the contention

that the plaintiffs were paying tax for the building in the plaint scheduled

property, and the second plaintiff approached the first defendant and

requested him to vacate the plaint scheduled property. He raised a claim

that an amount of Rs.700/- is due to him from late Shanmugam.

2. Accordingly, the suit was filed to recover the plaint schedule

property on the strength of their title. Defendants 2 to 4 were stated to

be the tenants of the various shop rooms who the first defendant

inducted after the death of Shanmugam, and it was the case of the

plaintiffs that there was no landlord-tenant relationship between them

and the Rent Control Act had no application. The prayer sought was for a

decree declaring the title of the plaintiffs over the plaint schedule

property and allowing them to recover the same for and on behalf of all

the co-owners together with mesne profits.

3. Defendants 2 to 5 remained exparte, while the first defendant

filed a written statement contending that neither the plaintiff nor their

predecessors in interest had any title or interest over the property and

alleged that the gift deed was a sham document (Ext.A2). It was their

contention that the plaint schedule property along with the building was

obtained on an assignment of an Ottikuzhikkanam by document Nos. 367 RSA No.240 of 2007

& 368 executed in 1093 M.E. by Sulthan Pillai Ahamed Kunju. The said

Ahmed Kunju mortgaged the properties in 1116 M.E by document

No.2723 in favour of Hameed Kannu and Mohammed Peeru Kannu.

Hameed Kunnu got an assignment of Mohammed Peeru Kannu's rights as

well, and thereafter, Hameed Kannu mortgaged the property to Rama

Subhayyar. The said Rama Subhayyar assigned his right to the first

defendant on 25.10.1967, and since that assignment, he is an absolute

possession and enjoyment of the plaint schedule property. In his case,

there was no privity of contract between Shanmugam and the first

defendant, and the right, if any, of the plaintiffs was lost by adverse

possession. The defendant also contended that the building's lie, nature,

or TC number is not known to the plaintiffs and that only a vague

description is given in the plaint. The first defendant contended that he

being the owner in possession of the property, had led out the building to

the tenants and was collecting the rent. Thus, the plaintiffs have no cause

of action to file the suit. He prayed for the dismissal of the suit.

4. Heard Sri.R.S.Kalkura, the learned counsel for the appellants.

Despite the service of notice of this appeal, none appears on behalf of the

defendants.

5. The following substantial question of law is formulated at the time of

admission of this appeal:

RSA No.240 of 2007

"Even if Ext.A2 gift deed was not proved to have been acted upon, were courts below justified in not considering the title of the appellants under Ext.A1 partition deed whereunder plaint schedule property was allotted to Shanmugham and if so, whether appellants are not entitled to the decree for recovery of possession sought for?

6. The lower court, after framing the issues, considered the

evidence of PW1 and Exts.A1 to A11 marked on their side. The first

defendant did not adduce any evidence. The trial court dismissed the

suit, holding that since the burden was on the plaintiff in a suit for

recovery of possession to prove title and having failed, no decree could

have been granted. It also noticed that the first defendant had disputed

the plaintiff's case with regard to the derivation of the title, contending

that the gift deed was a sham document, the plaintiffs could not

satisfactorily prove Ext.A2 document as a genuine one, or that it has

been acted upon. It also found that when the first plaintiff was examined

as PW1, she had deposed that there was a rental arrangement with

Shanmugam, which the trial court felt was against the case set up in the

plaint. The trial court also noticed that though in the plaint schedule,

extent was mentioned as 2 cents at the evidence stage, PW1 stated that

there were two rooms and that the number of rooms was not mentioned

in the plaint schedule and, therefore, it was not possible to pass a decree

capable to execution with certainty, holding the above the suit was RSA No.240 of 2007

dismissed.

7. The plaintiff carried the said judgment in appeal, where the

appellate court, without any independent examination, affirmed the trial

court's findings. The appellate court has not considered the effect of

Exts.A1 to A11, the evidence of PW1, or the fact that the partition deed

was not in dispute and also placed the burden on the plaintiff to prove

her contention taken by the defendant that the gift deed was sham. It is

to be noticed that no evidence, either oral or documentary, was adduced

by the defendants, and there was no challenge to the gift deed as

questions were put about the gift deed when PW1 was examined. The

first appellate court did not consider these aspects, which it was bound

to do so under Section 96 of the Code of Civil Procedure (CPC).

8.It is trite that the first appellate court was the final court of facts

and even law, and the litigants are entitled to an independent

appreciation of the entire evidence, and anything less than that falls

short of what is expected of an appellate court. None of the pleadings

and the documents produced in the case were independently considered

in a case where both sides asserted title. Failure to rehear the suit is an

abdication of the appellate power. I find that the trial court's finding has

been affirmed without any independent consideration or rehearing. The

impact of the absence of challenge to the partition deed produced by the RSA No.240 of 2007

appellant and the impact of no evidence let in by the defendants were not

at all considered by the appellate court. It is also to be seen that there

was hardly any dispute about which the subject matter of the property in

issue, and thus, the court courts below were not right in holding that the

identity of the property is not proved.

9. In view of the fact that the appellate court has failed to consider

the appeal as mandated in Section 96 CPC and has merely paraphrased

the trial court judgment, I deem it fit to set aside the impugned judgment

and decree and direct the III Additional District Judge,

Thiruvananthapuram, to re-hear AS No.256 of 1997 on its file and to

pass a fresh judgment after hearing the parties, in accordance with law,

at any rate, within an outer time limit of four months from the date of

receipt of a copy of this judgment.

The registry is directed to transmit the records to the lower

appellate court forthwith.

The RSA is allowed as above.

Sd/- MOHAMMED NIAS C.P.

JUDGE

dlk 14.8.2023