Second appeal against a decree granting possession. The court held that mere denial of execution of a sale deed without seeking to set it aside via suit or counter-claim does not discharge the burden of proof on production of the original document. Appeal dismissed.
Appeal dismissed. No substantial question of law held.
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 MR. JUSTICE P.SOMARAJAN
TUESDAY ,THE 26TH DAY OF MARCH 2019 / 5TH CHAITHRA, 1941
RSA.No. 1312 of 2004
AGAINST THE DECREE/JUDGMENT IN AS 17/1998 of DISTRICT COURT, MANJERI DATED 30-10-2004
AGAINST THE DECREE/JUDGMENT IN OS 13/1995 of SUB COURT, TIRUR DATED 31.01.1988
APPELLANTS/RESPONDENTS/DEFENDANTS 2-10:
BY ADVS.
SRI.K.RAMACHANDRAN SMT.R.MEERA
RSA.No. 1312 of 2004 2
RESPONDENT/APPELLANT/PLAINTIFF:
POOKKODAN PATHUMMAKUTTY @ FATHIMAKUTTY D/O.POOKODAN ALAVI, MORAYUR AMSOM DESOM,, ERNAD TALUK.
BY ADV. SRI.BABU S. NAIR
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA.No. 1312 of 2004 3
JUDGMENT
The legal representatives of the first defendant came up with this appeal, aggrieved by the decree and judgment of the first appellate court. A suit for recovery of possession based on the strength of title was dismissed by the trial court, but in appeal it was granted. The plaintiff is none else the divorced wife of second defendant and first defendant is her father in-law. Divorce was effected on 10.9.1991. Prior to the divorce, the father in–law of the first defendant had executed Ext.A1 sale deed in her favour. Later on after divorce the defendant trespassed into the property and hence, the suit for recovery of possession based on the strength of title.
contested the suit disputing the due execution of
RSA.No. 1312 of 2004 4
Ext.A1. The second defendant also joined with him in disputing the execution of Ext.A1 sale deed. But no counter claim was raised in the suit for setting aside Ext.A1 sale deed.
suit was filed by the plaintiff for recovery of
possession on 11.9.1995. Till that time or
subsequent to the institution of the suit, no suit
was brought into existence and no relief was sought
by any of the defendant for setting aside the
above said registered sale deed and the time available for setting aside the document stood as hopelessly barred by limitation. In fact, no counter claim was raised in the suit.
have not executed Ext.A1 document and they have not received sale consideration stated in the document.
But no relief was sought to set aside the said
RSA.No. 1312 of 2004 5
document either by a suit or by way of counter claim. No such suit was brought up and no counter claim was also raised. A mere production of original of the sale deed would discharge the initial burden lies on the plaintiff to prove the due execution of Ext.A1 document. Since it is a sale deed, it is not a document required by law to be attested. Even in the case of the document required by law to be attested the issue of summoning one of the attesting witness except in the case of a Will or Codicil would arise only when there is a challenge by a person, by whom it purports to have been executed; namely, the first defendant. But it should be in a suit challenging the document and for setting aside the document, or by way of counter claim. Without seeking a relief to set aside the document, a mere denial of execution of document would not make any effect.
RSA.No. 1312 of 2004 6
Hence, appeal fails. No substantial question of law brought to the notice of this court. Appeal dismissed, but without costs.
Sd/-
P.SOMARAJAN, JUDGE
pm
// TRUE COPY // PA TO JUDGE
Kummalii Aboobacker
Kadееja
Ayisa
Beepathima
Sainaba
Aboobacker
P. Somarajan
As recorded by the court registry
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