Dismissed

Ramakrishnan Ezhuthassan v. Aravindakshan Ezhuthassan(Died)

Kerala HC21 Jun 2012RSA/736/2012

Case brief

AI extract

What is this about?

In a second appeal regarding a property suit, the High Court of Kerala upheld lower courts' decrees granting an injunction. The court upheld the presumption of genuineness under Sec.90 of the Evidence Act for a 30-year-old registered deed and found the appellant failed to rebut it or prove co-ownership.

What did the court decide?

Second appeal dismissed; all pending interlocutory applications dismissed.

Ramakrishnan Ezhuthassan Vs Aravindakshan Ezhuthassan(Died) — Property and Title | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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THURSDAY, THE 21ST DAY OF JUNE 2012/31ST JYAISHTA 1934

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RSA.No. 736 of 2012 ()

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AS.39/2003 of ADDL. DISTRICT COURT, OTTAPALAM OS.191/2000 of MUNSIFF COURT, OTTAPPALAM

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APPELLANT(S)/APPELLANT/DEFENDANT:

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RAMAKRISHNAN EZHUTHASSAN,

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S/O LATE NARAYANAN EZHUTHASSAN, TEKKINIKATTIL, CHUNANGAD AMSOM, DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.

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BY ADV. SRI.P.JAYARAM

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RESPONDENT(S)/RESPONDENTS/PLAINTIFF:

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ARAVINDAKSHAN EZHUTHASSAN(DIED),

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JANAKI AMMA,, AGED 84 YEARS,

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W/O THEKKINKATTIL NARAYANAN EZHUTHASSAN, CHUNANGAD AMSOM DESOM, P.O. CHUNANGAD - 679511,

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OTTAPALAM TALUK, PALAKKAD DISTRICT.

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VIJAYALAKSHMI, AGED 49 YEARS, W/O LATE ARAVINDAKSHAN EZHUTHASSAN, THEKKINIKATTIL, P.O. CHUNANGAD - 679511,

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OTTAPALAM TALUK, PALAKKAD DISTRICT

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JYOTHI, AGED 30 YEARS

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D/O LATE ARAVINDAKSHAN EZHUTHASSAN, THEKKINIKATTIL, P.O. CHUNANGAD - 679511,

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OTTAPALAM TALUK, PALAKKAD DISTRICT

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KAVITHA,, AGED 28 YEARS

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D/O LATE ARAVINDAKSHAN EZHUTHASSAN, THEKKINIKATTIL, P.O. CHUNANGAD - 679511,

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OTTAPALAM TALUK, PALAKKAD DISTRICT

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PRAVITHA, AGED 26 YEARS D/O LATE ARAVINDAKSHAN EZHUTHASSAN, THEKKINKATTIL, P.O. CHUNANGAD - 679511,

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OTTAPALAM TALUK, PALAKKAD DISTRICT

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A. No.736 of 2012

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Dated this the 21^st day of June, 2012.

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JUDGMENT

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The defendant in O.S.No.191 of 2000 of the court of learned Munsiff, Ottapalam is the appellant before me challenging the concurrent verdict against him.

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The original plaintiff, brother of appellant sued him for a decree for prohibitory injunction against trespass into the suit property and interfering with his possession. He claimed that the suit property was acquired by one Sreedevi Amma as per document No.1317 of 1959 for her thavazhy. The original plaintiff, appellant and their sisters - Padmini and Pankajakshy Amma purchased the suit property from the said Sreedevi Amma and other members of the thavazhy as per Ext.A1, assignment deed No.1002 of 1964. Appellant and Pankajakshy Amma assigned their right in the suit property to the original plaintiff as per Ext.A2, deed No.1476 of 1967. Padmini released her right in favour of the original plaintiff as per Ext.A3, document No.2342 of 1973. Thus original plaintiff claimed to be the absolute owner in possession of the suit property.

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Appellant denied the execution of Exts.A2 and A3 and claimed that he has co-ownership right in the suit property. He also denied that the original plaintiff had exclusive possession and enjoyment of the suit property.

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The trial court accepted the case of original plaintiff, found that he

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RSA No.736/2012

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is in exclusive possession and enjoyment of the suit property and accordingly granted decree as prayed for. First appellate court has confirmed that decision.

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Learned counsel for appellant contends that though not in the trial court, an application was filed in the first appellate court to allow the appellant adduce evidence by calling for a report of the expert on the authenticity of the signature in Ext.A2. But that application was not allowed by the first appellate court. It is also the contention of learned counsel that courts below drew presumption under Sec.90 of the Evidence Act (for short, “the Act”). According to the learned counsel, though the said provision provides for presumption as to the genuineness of documents which are 30 years of old and coming from proper custody, it is to save the parties from the difficulty of examining witnesses in respect of ancient documents where the witnesses may not be available, but, having regard to the fact that witnesses to Ext.A2 was available, it was the responsibility of original plaintiff to examine them and prove execution of that document. It is further contended that finding of the courts below regarding exclusive possession of the suit property with the original plaintiff is not correct since evidence of PW1 would show that appellant is taking yield from the suit property.

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Though, appellant had disputed execution of Ext.A3, document No.2342 of 1973 allegedly executed by Padmini releasing her right in favour of the original plaintiff, serious challenge was to the execution of Ext.A2, document No.1674 of 1967 by the appellant and Pankajakshy Amma. Appellant gave evidence as DW1 and disputed execution of Ext.A2. True that

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RSA No.736/2012 3

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notwithstanding the denial of execution of Ext.A2, original plaintiff had not examined witnesses to Ext.A2. Ext.A2 is of the year, 1967 and the suit having been filed in the year, 2000, the presumption under Sec.90 of the Act which deals with presumption regarding genuineness of the document was available to the respondent. It is not disputed that Ext.A2 has come from proper custody - custody of the original plaintiff. I am not inclined to think that assuming that witnesses to Ext.A2 were available, Sec.90 of the Act was not available.

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Since the original plaintiff was entitled to the presumption under Sec.90 of the Act, responsibility to rebut that presumption was on the appellant. It came out in evidence that the disputed signature of the appellant in Ext.A2 did not tally with the signature of appellant in his vakalath and written statement. But, for comparison post litum signatures cannot safely be used. Appellant did not produce any of his admitted signatures prior to the institution of the suit and during the time of Ext.A2 for comparison/examination with the disputed signature in Ext.A2.

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It is in the first appellate court that appellant thought of calling for a report of the expert. The first appellate court has referred to that request in paragraph 10 of the judgment and stated that having regard to the circumstances and lapse of long time the request for comparison cannot be allowed.

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RSA No.736/2012

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A further fact I must notice is that Ext.A2 is signed by Pankajakshy Amma, another sister of appellant and the original plaintiff. Ext.A2 is a registered document. So far as a registered document is concerned, though it is not conclusive proof of execution, registration carries some weight as to the due execution of the document. It is so held in Prem Singh v. Birbal (2006 (2) KLT 863 - SC) and Abdul Rahim v. Abdul Zabar (2009 (2) KLT SN. 88 - Case No.88-SC) . In Vimal Chand Ghevarchand Jain and others v. Ramakant Eknath Jadoo ((2009) 5 SCC 713) it is held that presumption is in favour of genuineness of a registered document. That, coupled with the presumption under Sec.90 of the Act absolved the original plaintiff from the responsibility to examine the witnesses to Ext.A2. Appellant was not able to adduce sufficient evidence to rebut the presumption.

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Coming to the claim of possession, by Exts.A2 and A3 it is clear that original plaintiff was in exclusive possession and enjoyment of the suit property. The statement in the cross examination of the original plaintiff as PW1 is brought to my notice. When it was suggested to him that appellant is also taking yield from the property, PW1 stated that himself and the appellant are the children of the same mother. That did not meant that appellant was entitled to take yield from the suit property or is in possession.

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RSA No.736/2012

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Having heard learned counsel and gone through the judgments under challenge I am not satisfied that any substantial question of law is involved in this appeal requiring its admission.

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Second Appeal is dismissed.

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All pending interlocutory applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

Ramakrishnan Ezhuthassan v. Aravindakshan Ezhuthassan(Died)

Case brief

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Ramakrishnan Ezhuthassan v. Aravindakshan Ezhuthassan(Died)

Case brief

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What did the court decide?

What the court decided

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