Appeal against decree dismissing suit for declaration and injunction. Second appellant impersonated first appellant to execute sale deed. Appellants failed to prove they were daughter of seller or owners of property as per earlier deed. Criminal case in impersonation resulted in acquittal. Appeal dismissed for lack of evidence.
Next relief to be depended upon.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941
RFA.No.599 OF 2004
AGAINST THE JUDGMENT AND DECREE IN OS 250/1995 DATED 27-05-2004 OF THE SUB COURT,KOTTARAKKARA
APPELLANTS-PLAINTIFFS:
RESPONDENTS-DEFENDANTS.
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28-10-2019, THE COURT ON 05-11-2019 DELIVERED THE FOLLOWING:
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MARY JOSEPH, J.
JUDGMENT
O.S No.250/1995 filed by the appellants seeking for a
decree of declaration and injunction was dismissed by the Subordinate Judges Court, Kottarakkara on 27.05.2005. The appeal on hand is filed by the defeated plaintiffs in the suit.
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that matter on getting a private complaint filed by
Smt.Kunjamma before Judicial First Class Magistrate Court, Punalur and forwarded thereto. Therefore, the suit was filed seeking for a declaration that title to the plaint schedule property still vests in the plaintiffs and title to the plaint schedule building vests jointly on the plaintiffs and the defendants and was in their joint possession and enjoyment. Consequentially permanent injunction restraining the defendants from executing any documents in respect of the plaint schedule properties or from advancing any claim before any authorities as the owner of the plaint schedule properties or from doing any acts inconsistent with the ownership of plaintiff No.1 in the plaint schedule property, and joint ownership of the plaintiffs and the defendants in respect of the plaint schedule buildings and structures was also sought.
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covered by sale deed No.6366/1962 was purchased by late Cheriyan, S/o.Geevarghese, Meloot House in the name of one Kunjamma, D/o.Mariyamma, Pinaruvila Puthenveettil, Melila Village who is not the 1st plaintiff but some other lady. As revealed from the death certificate produced by the defendant, a lady named Kunjamma, Meloot Veedu, Mylam P.O. Kottarakkars died on 01.06.1997. According to defendants, the Kunjamma referred to in Ext.A1 is the lady who died as per Ext.B5. According to them, the funds of 2nd defendant was utilised to construct the building that stands in the plaint schedule property. P.O.Geevarghese got the sale deed executed by Smt.Kunjamma, Meloot and delivered to defendant No.2 and no basis is there in the averment of 1st plaintiff that forging her signature, document No.4325/1993 was executed. The averment of impersonation raised by plaintiffs is also contended as devoid of basis. Accordingly, the suit is sought to be dismissed.
the 2nd defendant as DW1, and Ext.B1 to B4, B4(a), B5, B6,
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B6(a), B6(b) and B7. The declaration sought in the plaint was that sale deed No.4325/1993 dated 24.12.1993 marked in evidence as Ext.A10 was executed in favour of 2nd defendant by impersonating the 1st plaintiff and forging her signature through some other person. According to plaintiffs, the property scheduled in sale deed No.4325/1993 and stands as on date in favour of the 2nd defendant was the property in respect of which 1st plaintiff obtained title through sale deed No.6366/1962 (Ext.A1) executed by her father (Cheriyan) in her favour. Therefore, for obtaining the reliefs in the suit, the plaintiffs must establish primarily the title of the 1st plaintiff to the plaint schedule property which has been allegedly transferred in the name of the 2nd defendant by Ext.A10 through impersonation.
“Kunjamma Thomas, residing at Jayabharath Bungalow, Near Railway Station, Punalur”
The recitals in Ext.A1 show that the property scheduled therein belongs to Smt.Kunjamma, D/o.Mariyamma, Pinaruvila Puthenveettil, Aippallur Muriyil, Melila Village. The ownership of
the plaint schedule property at the time when Ext.A10 stands
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executed in favour of 2nd defendant is a crucial factum to be
established in the case on hand. In the context when Ext.A1 stands in favour of Kunjamma, D/o.Mariyamma, Pinaruvila Puthenveettil, Aippallur Muriyil, Melila Village, it is the burden of plaintiffs to establish that the 1st plaintiff was having the address found in Ext.A1 at the relevant time when it was executed.
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Mariyamma, Pinaruvila Puthenveettil, Aippallur Muriyil, Melila Village. 1st plaintiff is the apt person to enter the box to say that the address found in Ext.A1 was that of herself as in the year 1962 and the one found in the plaint was held by her at the relevant time when the suit was filed. It is for the plaintiffs to establish the changes in the address and the reasons for such changes. In the case on hand, the 1st plaintiff did not enter the box to depose those aspects. Her son was examined as PW1. He, as a witness, did not succeed in tendering a cogent case to explain the above aspects. DW1 is also a son of 1st plaintiff and he has denied that “Kunjamma” referred to in Ext.A1 was not his mother as she does not have the address stated therein. In the said circumstances, the oral evidence of DW1 and Ext.B5 assumed relevance. According to DW1, Kunjamma in whose favour Ext.A1 stands is not the 1st plaintiff but, the one whose death as on 01.06.1997 was certified by Ext.B5. Ext.B4 is the book of Family genealogy produced by the defendant and therein reference is made about the parents of plaintiffs and defendants. The recitals in Ext.B4 indicate that the father of plaintiffs 2 to 8 and defendants late P.O.Thomas Vaidyan hails from Valiya Veedu family and Kunjamma Thomas, 1st plaintiff from Ambilazhikathu
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Family. Though the authenticity of Ext.B4 is denied by PW1, he was not supposed to do so especially when his name is found among those who were instrumental in collecting the materials for publishing Ext.B4. Therefore, defendants have succeeded in establishing their case that 1st plaintiff is not the holder of the property scheduled in the plaint at any point of time. In the context, the averment of the plaintiffs that the 2nd defendant caused someone to impersonate the 1st plaintiff and got Ext.A10 executed in his favour is only liable to be defeated as devoid of basis. Plaintiffs have produced Ext.A14, the final report laid by Sub Inspector of Police, Punalur in Crime No.34/95 registered on the basis of a private complaint lodged by Smt.Kunjamma Thomas, the 1st plaintiff, raising allegation of impersonation as against the 2nd defendant in the suit and forwarded to them under Section 156(3) Cr.P.C. It is true that 2nd defendant and one Mrs.Kunjamma (address unknown) were chargesheeted by the Punalur police for offences punishable under Sections 109, 464, 468, 471 and 120(B) read with Section 34 IPC. Though the final report was laid on 26.12.1995, plaintiffs failed to produce materials to show in what manner the trial held therein was culminated. The defendant has produced Ext.B2, the certified
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copy of judgment in CC No.214/96, the case registered on the files of Judicial First Class Magistrate-III, Punalur, which discloses that the accused therein were acquitted for failure of the prosecution to establish guilt of the accused for the offences charged against them. It is also pertinent to note that, the plaintiffs have suppressed the said factum from the knowledge of the court. Therefore, the venture of the plaintiff to establish impersonation was defeated at the threshold. It is the twin reasons as above that defeated the claim of plaintiffs and disentitle them for the reliefs sought by them in the plaint.
The trial court has rightly declined the reliefs to the plaintiffs. The appeal does not hold merit.
In the result, appeal is dismissed.
Sd/MARY JOSEPH, JUDGE
ab/ttb
3 issues framed by the court
Whether the appellants established that the sale deed dated 24.12.1993 was executed by impersonating the first appellant by forging her signature.
Whether the first appellant was the legal owner of the property situated at Plot No. 412/413 in Punalur at the time of execution of the disputed deed.
Whether the suit filed by the appellants was meritously dismissed by the Trial Court.
1 provisions across 1 enactments
KUNJAMMA THOMAS
P.T.CHANDRA BABU
P.T.SUBHASH BABU
P.T.ROY BABU
P.T.PRAKASH BABU
P.T.JOE BABU
MARY JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
