Kerala High Court
Sainudheen vs Basheer on 18 August, 2025
RFA. No. 561/2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 18TH DAY OF AUGUST 2025 / 27TH SRAVANA, 1947
RFA NO. 561 OF 2017
AGAINST THE JUDGMENT AND DECREE DATED 28.2.2017 IN OS
NO.143 OF 2012 OF SUB COURT, OTTAPPALAM
APPELLANT/DEFENDANT:
SAINUDHEEN
AGED 60 YEARS,S/O.MOOSA,
THALIKKAPPARAMBIL HOUSE,
CHUNANGAD AMSOM DESOM,
CHUNANGAD.P.O,
OTTAPALAM,PIN-679511.
BY ADVS.
SRI.K.SHIBILI NAHA
SMT.A.LOWSY
RESPONDENT/PLAINTIFF:
BASHEER
AGED 30 YEARS,S/O.SAINUDHEEN,
THALIKKAPPARAMBIL HOUSE,
KANMANAM AMSOM DESOM,
THUVAKKADU.P.O,
TIRUR TALUK,PIN-676556.
BY ADV SMT.K.K.RAZIA
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
07.08.2025, THE COURT ON 18.08.2025 DELIVERED THE FOLLOWING:
RFA. No. 561/2017
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JUDGMENT
Dated this the 18th day of August, 2025
The defendant in OS. No. 143 of 2012, on the file of the Sub
Court, Ottapalam, is the appellant. (For the purpose of convenience, the
parties are hereafter referred to as per their rank before the trial Court).
2. The defendant is the father of the plaintiff. The plaintiff filed
this suit for declaration and consequential injunction. According to the
plaintiff, while he was about 6 months old, as per assignment deeds
Nos.1543/1983 and 1544/1983 the plaint schedule property was
purchased in his name by his father. However, in the assignment deeds,
his age was mistakenly noted as 6 years, instead of 6 months. According
to him, his father had no other son by the name Basheer. The defendant
married his mother on 2.8.1981 and he was born on 01.10.1982
Thereafter due to difference of opinion, the plaintiff's mother and
defendant were residing separately. By virtue of the above assignment
deeds, the plaintiff obtained absolute title and possession over the plaint
schedule properties. When he received information to the effect that the
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defendant is about to assign the plaint schedule properties to third
persons, he preferred this suit, seeking a declaration that the plaint
schedule properties belong to him and also for an injunction restraining
the defendant from assigning the said property to others.
3. The defendant filed a written statement contending that the
name of the plaintiff is not Basheer, but Muhammed Basheer. It is
further contended that the age of the plaintiff shown in the plaint is not
correct. According the defendant, the date of birth of the plaintiff was
01.10.1983 and not 01.10.1982. On the date of the assignment deed on
03.04.1983 the plaintiff was not even born. The allegation that the age of
the plaintiff was mistakenly shown in the assignment dead as 6 years is
not correct. According to the defendant, the plaintiff has no title over the
plaint schedule property. According to the defendant, while he was
employed abroad, he sent money to his father for purchasing property in
his name. However, his father purchased the property in the name of
Basheer, a minor. On enquiry, his father told him that if 3.5 acres of
property is purchased in the name of the defendant, along with the
property already in his possession, the same will exceed the ceiling limit
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and therefore, he purchased the property in the name of a minor, who
was actually not in existence. Therefore, according to the defendant, The
minor, shown as Basheer in the assignment deeds, is not the plaintiff. In
the light of the above contentions, the defendant prayed for dismissing
the suit.
4. The trial court framed two issues. The evidence in the case
consists of the oral testimonies of PWs 1 & 2 and DW1, Exhibits A1 to
A7 and B1 to B5. After evaluating the evidence on record, the trial court
decreed the suit, holding that the plaint schedule property belongs to the
plaintiff, and restraining the defendant by a permanent prohibitory
injunction from alienating the plaint schedule property. Being aggrieved
by the above judgment and decree of the trial court, the defendant
preferred this appeal.
5. Now the points that arise for consideration are the following:
1) Whether the person named as minor Basheer in Exhibit
A1 and A2 documents, is the plaintiff?
2) Whether the impugned judgment and decree of the trial
Court calls for any interference in the light of the grounds
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raised in the appeal?
6. Head Sri K. Shibili Naha, the learned counsel for the appellant
and Smt. K.K. Razia, the learned counsel for the respondent/plaintiff.
7. The points: Relying upon Exhibits A3 birth certificate in which
the date of birth of the plaintiff is shown as 01.10.1983, the learned
counsel for the appellant would argue that at the time of executing
Exhibits A1 and A2 (Exhibits B2 and B3), the plaintiff was not even
born. Therefore, according to the learned counsel, the minor Basheer
mentioned in Exhibit A1 and A2 is not the plaintiff. However, he could
not answer as to who is the minor Basheer mentioned in Exhibit A1 and
A2. At the same time, the learned counsel would argue that the plaintiff
has to prove his title in order to get a decree for declaration of title and
that, for the said purpose he cannot rely upon the weakness in the
defence case.
8. He has also relied upon the decision of Hon'ble Supreme Court
in Union of India and Others v. Vasavi Co-op. Housing Society Ltd.
And Others [(2014) 2 SCC 269], in which in paragraph 12 the Apex
Court held that:
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"12. It is trite law that, in a suit for declaration of title, burden
always lies on the plaintiff to make out and establish a clear case
for granting such a declaration and the weakness, if any, of the
case set up by the defendants would not be a ground to grant relief
to the plaintiff."
9. In the decision in Kishore Kumar P. v. Vittal K. Patkar
[2023 KHC 6998], relied upon by the learned counsel, the Apex Court
held in paragraph 22 as follows:
"22. Contention advanced on behalf of the plaintiff that through
the record of rights the plaintiff has established his title by a
preponderance of probabilities is not sustainable. As noted above,
the plaintiff failed to produce a single document of title in respect
of the suit property. In a dispute with respect to determination of
title, merely pointing out the lacunae in the defendant's title would
not suffice. Having instituted the suit for declaration, the burden of
proof rested on the shoulders of the plaintiff to reasonably establish
the probability of better title, which the plaintiff in the present case,
has manifestly failed to do."
10. The law is well settled that in order to get a decree for
declaration of title, the plaintiff has to prove his title and for the said
purpose he cannot rely upon the weakness in the defence case. In this
case, to prove the title, the plaintiff relies upon Exhibits A1 and A2
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assignment deeds (Exhibits B2 and B3). Admittedly, the above
assignment deeds stand in the name of minor Basheer. While according
to the plaintiff, he himself is the said minor Basheer, his own father, the
defendant disputes the above claim of the plaintiff.
11. The name of the father of the minor Basheer shown in
Exhibit A1 and A2 is Sainudheen, the defendant herein. The defendant
would admit that the plaintiff is his own son, born to his second wife. He
has six children, three in his 2 nd wife and the remaining three in his 3 rd
wife. He would also admit that he has no other son by name Basheer.
Admittedly, the plaintiff and defendant are not on good terms. It is true
that in Exhibit A3 birth certificate, the date of birth of the plaintiff is
shown as 01.10.1983. Therefore, going by the date of birth in Exhibit A3
birth certificate, the plaintiff was not alive on the date of Exhibit A1 and
A2 namely, on 30.4.1983.
12. The plaintiff's mother who is the 2 nd wife of the defendant was
examined as PW2. In categorical terms, PW2 deposed that, the
defendant married her in the year August 1981 and that the plaintiff was
born in that wedlock in October, 1982. The above evidence of PW2
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that the plaintiff was born to her and the defendant in October 1982, was
not challenged during the cross examination. Therefore, the above
unchallenged testimony of PW2, supports the case of the plaintiff that he
was born on 01.10.1982.
13. It is true that birth register maintained by the statutory
authority raises a presumption of correctness (CIDCO v. Vasudha
Gorakhnath Mandevlekar, (2009) 7 SCC 283). However, the said
presumption is a rebuttable one. The presumption or correctness
attached to such entries can be rebutted only on the basis of evidence of
impeccable reliability. (Robin Mathew v. State of Kerala and
Another, 2021 KHC 819).
14. The version of the defendant that his father told him that if
3.5 acres of property is also purchased in his name, along with the
property already in his possession, the same will exceed the ceiling limit
and therefore, he purchased the property in the name of a minor, who
was actually not in existence is difficult to digest. There is no evidence
to show that if the scheduled property is purchased in his name, the
same will exceed the ceiling limit. There is also no evidence to prove
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that the defendant was not in station when the plaint schedule property
was purchased in the name of minor Basheer. There is also no evidence
to prove that the property was purchased by the father of the defendant,
on his behalf, in his absence. As per the terms of Exts.A1 and A2, the
property was purchased by the defendant himself, on behalf of his minor
son Basheer and the possession of the property was taken over by him,
on behalf of the minor.
15. It cannot be disputed that the plaint schedule property stands
in the name of the son of the defendant by name Basheer. It is also
evident that the defendant has no other son by name Basheer, other than
the plaintiff. It is also to be noted that nobody else came forward with
any claim of title over the plaint schedule property. The defendant also
could not point out any other person as the minor Basheer mentioned in
Exts.A1 and A2. In the above peculiar facts and circumstances of the
case, the evidence of PW2, the wife of the defendant and mother of the
plaintiff assumes much significance. In categorical terms she deposed
that her marriage with the defendant was in August 1981 and that the
plaintiff was born to them, one year after the marriage, in October 1982.
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It is also worthwhile to note that the above evidence of PW2 was not
challenged in cross-examination. The mother of the child is the most
competent person who could state the correct date of birth of her child.
16. Admittedly, due to difference of opinion, the defendant has
been living away from his 2nd wife (PW2) and children including the
plaintiff, since 1992 and some other litigations were also there between
them. Therefore, it is evident that the strange defence taken by the
defendant in this case against the plaintiff, his own son, is because of the
above estranged relation between them. In the above circumstance, the
oral testimony of the defendant as DW1 regarding the date of birth of
the plaintiff is not reliable. On the other hand, the unchallenged
testimony of PW2 in that respect is more reliable and trustworthy. There
is absolutely no grounds to disbelieve her unchallenged testimony. The
above evidence of PW2 corroborates the evidence of the plaintiff that
his date of birth is on 1.10.1982 and not on 1.10.1983 as stated in
Ext.A3. If so, minor Basheer mentioned in Exts.A1 and A2 is none
other than the plaintiff. In that case, as contended by the plaintiff, his age
as stated in Ext.A1 and A2 is only a mistake. In that case, it is to be held
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that, the plaint schedule property covered by Exhibit A1 and A2
assignment deeds were purchased by the defendant in the name of
plaintiff, while he was a minor.
17. Therefore, from the evidence on record, it can be concluded
that the plaintiff is the absolute owner of the plaint schedule property.
Since the defendant is challenging the title of the plaintiff over the plaint
schedule property, the trial court was justified in decreeing the suit. I do
not find any irregularity of illegality in the impugned judgment and
decree of the trial court, so as to call for any interference. Points
answered accordingly.
18. In the result, this appeal is dismissed. Considering the close
relationship between the parties, I order no costs.
All pending interlocutory applications shall stand dismissed.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
