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
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
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
& 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.
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
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
to appear before the First Appellate Court on 22.05.2024.
Sd/-
T.R. RAVI
JUDGE
dsn
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.
