Allowed

Krishnamma v. Shamsudeen

Kerala HC14 Aug 2023RSA/240/2007

Case brief

AI extract

What is this about?

High Court allowed a regular second appeal where the appellate court failed to independently rehear a suit for declaration and recovery of possession and merely affirmed the trial court judgment without addressing the undisputed partition deed or lack of evidence from defendants.

What did the court decide?

Impugned judgment of the Additional District Court and appeal decree of the First Appellate Court set aside; suit remanded to District Judge for rehearing and fresh judgment within four months.

Krishnamma Vs Shamsudeen — Partition | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THIN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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MONDAY, THE 14TH DAY OF AUGUST 2023 / 23RD SRAVANA, 1945

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RSA NO. 240 OF 2007

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AGAINST THE ORDER/JUDGMENT IN OS 1162/1991 OF I ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM AS 256/1997 OF III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM

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APPELLANTS/APPELLANTS/PLAINTIFFS:

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KRISHNAMMA

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THUDUVILAKATHU VEEDU, 1 THYVILAKAM HOUSE,, PATHIRIPALLY MURI, CHETTIVILAKAM PAKUTHY. GIRISH CHANDRAN, S/O.SHANMUGHAM RESIDING AT THUDUVILAKATHU VEEDU,, 2 THYVILAKAM HOUSE, PATHIRIPALLY MURI,, CHETTIVILAKAM PAKUTHY. VYJAYANTIMALA, D/O.KRISHNAMMA RESIDING AT THUDUVILAKATHU VEEDU,, 3 THYVILAKAM HOUSE, PATHIRIPALLY MURI,, CHETTIVILAKAM PAKUTHY. SURESHKUMAR, D/O.SHANMUGHAM RESIDING AT THUDUVILAKATHU VEEDU,, 4 THYVILAKAM HOUSE, PATHIRIPALLY MURI,, CHETTIVILAKAM PAKUTHY. 5 BALACHANDRAN, S/O.SHANMUGHAN RESIDING AT THUDUVILAKATHU VEEDU,, THYVILAKAM HOUSE, PATHIRIPALLY MURI,,

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RSA No.240 of 2007

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CHETTIVILAKAM PAKUTHY. BY ADVS. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.KIRAN SANKAR SRI.V.VINAY MENON

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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SHAMSUDEEN, RESIDING AT TC NO.36/1147, 1 VALLAKADAVU, PERUNTHANNI WARD,, THIRUVANANTHAPURAM. VENU, SYLE VENU’S STITCHING CENTRE 2 T.C.NO.36/1148, VALLAKADAVU,, THIRUVANANTHAPURAM. SHAHUL HAMEED, STYLE ‘SHA INDUSTRIES’, 3 T.C.NO.1149, VALLAKADAVU, THIRUVANANTHAPURAM. M.H. NAKKIRKHAN, S.M. MANZIL 4 VALLAKKADAVU, THIRUVANANTHAPURAM. SOFIA BEEGUM S.M. MANZIL 5 VALLAKKADAVU, THIRUVANANTHAPURAM.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA No.240 of 2007

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MOHAMMED NIAS C.P.J

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… ...................................................

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RSA No.240 of 2007

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… ..............................................................

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Dated this the 14^th day of August, 2023

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JUDGMENT

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The plaintiffs in OS No. 1162 of 1991 on the files of the I Additional Munsiff Court, Thiruvananthapuram, the appellants herein, are aggrieved by the judgment in AS No.256 of 1997 of the Additional District Court III, Thiruvananthapuram, that confirmed the dismissal of the suit filed by them for declaration and recovery of possession. The plaintiff contended that the property originally belonged to one Shanmugam as per the Partition deed dated 7.12.1950 (Ext.A1). The first plaintiff is his wife, and plaintiffs 2 to 5 are his children. A Gift Deed was executed on 30.11.1951 in favour of the plaintiffs 1 to 3 in respect of the plaint schedule property. Subsequently, five more children were born to the first plaintiff through Shanmugam. It is stated in the plaint that the suit is filed for their benefit as well. The plaint schedule is an extent of 2 cents of land and a shop building therein. In the plaintiff's case, the first defendant was a close friend of Shanmugam, and the first defendant was looking after the plaint schedule property. Even after the execution of the

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RSA No.240 of 2007

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gift deed, Shanmugam used to collect the rent from the tenants whenever he visited the property, and on other occasions, the first defendant used to collect the rent on his behalf. It is also the contention that the plaintiffs were paying tax for the building in the plaint scheduled property, and the second plaintiff approached the first defendant and requested him to vacate the plaint scheduled property. He raised a claim that an amount of Rs.700/- is due to him from late Shanmugam.

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Accordingly, the suit was filed to recover the plaint schedule property on the strength of their title. Defendants 2 to 4 were stated to be the tenants of the various shop rooms who the first defendant inducted after the death of Shanmugam, and it was the case of the plaintiffs that there was no landlord-tenant relationship between them and the Rent Control Act had no application. The prayer sought was for a decree declaring the title of the plaintiffs over the plaint schedule property and allowing them to recover the same for and on behalf of all the co-owners together with mesne profits.

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Defendants 2 to 5 remained exparte, while the first defendant filed a written statement contending that neither the plaintiff nor their predecessors in interest had any title or interest over the property and alleged that the gift deed was a sham document (Ext.A2). It was their contention that the plaint schedule property along with the building was obtained on an assignment of an Ottikuzhikkanam by document Nos. 367

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RSA No.240 of 2007

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& 368 executed in 1093 M.E. by Sulthan Pillai Ahamed Kunju. The said Ahmed Kunju mortgaged the properties in 1116 M.E by document No.2723 in favour of Hameed Kannu and Mohammed Peeru Kannu. Hameed Kunnu got an assignment of Mohammed Peeru Kannu's rights as well, and thereafter, Hameed Kannu mortgaged the property to Rama Subhayyar. The said Rama Subhayyar assigned his right to the first defendant on 25.10.1967, and since that assignment, he is an absolute possession and enjoyment of the plaint schedule property. In his case, there was no privity of contract between Shanmugam and the first defendant, and the right, if any, of the plaintiffs was lost by adverse possession. The defendant also contended that the building's lie, nature, or TC number is not known to the plaintiffs and that only a vague description is given in the plaint. The first defendant contended that he being the owner in possession of the property, had led out the building to the tenants and was collecting the rent. Thus, the plaintiffs have no cause of action to file the suit. He prayed for the dismissal of the suit.

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Heard Sri.R.S.Kalkura, the learned counsel for the appellants. Despite the service of notice of this appeal, none appears on behalf of the defendants.

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The following substantial question of law is formulated at the time of admission of this appeal:

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RSA No.240 of 2007

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“Even if Ext.A2 gift deed was not proved to have been acted upon, were courts below justified in not considering the title of the appellants under Ext.A1 partition deed whereunder plaint schedule property was allotted to Shanmugham and if so, whether appellants are not entitled to the decree for recovery of possession sought for?

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The lower court, after framing the issues, considered the evidence of PW1 and Exts.A1 to A11 marked on their side. The first defendant did not adduce any evidence. The trial court dismissed the suit, holding that since the burden was on the plaintiff in a suit for recovery of possession to prove title and having failed, no decree could have been granted. It also noticed that the first defendant had disputed the plaintiff's case with regard to the derivation of the title, contending that the gift deed was a sham document, the plaintiffs could not satisfactorily prove Ext.A2 document as a genuine one, or that it has been acted upon. It also found that when the first plaintiff was examined as PW1, she had deposed that there was a rental arrangement with Shanmugam, which the trial court felt was against the case set up in the plaint. The trial court also noticed that though in the plaint schedule, extent was mentioned as 2 cents at the evidence stage, PW1 stated that there were two rooms and that the number of rooms was not mentioned in the plaint schedule and, therefore, it was not possible to pass a decree capable to execution with certainty, holding the above the suit was

RSA No.240 of 2007

dismissed.

The plaintiff carried the said judgment in appeal, where the appellate court, without any independent examination, affirmed the trial court's findings. The appellate court has not considered the effect of Exts.A1 to A11, the evidence of PW1, or the fact that the partition deed was not in dispute and also placed the burden on the plaintiff to prove her contention taken by the defendant that the gift deed was sham. It is to be noticed that no evidence, either oral or documentary, was adduced by the defendants, and there was no challenge to the gift deed as questions were put about the gift deed when PW1 was examined. The first appellate court did not consider these aspects, which it was bound to do so under Section 96 of the Code of Civil Procedure (CPC).

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8.It is trite that the first appellate court was the final court of facts and even law, and the litigants are entitled to an independent appreciation of the entire evidence, and anything less than that falls short of what is expected of an appellate court. None of the pleadings and the documents produced in the case were independently considered in a case where both sides asserted title. Failure to rehear the suit is an abdication of the appellate power. I find that the trial court's finding has been affirmed without any independent consideration or rehearing. The impact of the absence of challenge to the partition deed produced by the

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RSA No.240 of 2007

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appellant and the impact of no evidence let in by the defendants were not at all considered by the appellate court. It is also to be seen that there was hardly any dispute about which the subject matter of the property in issue, and thus, the court courts below were not right in holding that the identity of the property is not proved.

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In view of the fact that the appellate court has failed to consider the appeal as mandated in Section 96 CPC and has merely paraphrased the trial court judgment, I deem it fit to set aside the impugned judgment and decree and direct the III Additional District Judge, Thiruvananthapuram, to re-hear AS No.256 of 1997 on its file and to pass a fresh judgment after hearing the parties, in accordance with law, at any rate, within an outer time limit of four months from the date of receipt of a copy of this judgment.

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The registry is directed to transmit the records to the lower appellate court forthwith.

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The RSA is allowed as above.

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Sd/- MOHAMMED NIAS C.P. JUDGE

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dlk 14.8.2023

Krishnamma v. Shamsudeen

Case brief

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What did the court decide?

Krishnamma v. Shamsudeen

Case brief

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