Dismissed

V.M. Prabhakaran v. Padmavathi Amma

Kerala HC28 May 2024RSA/1515/2013

Case brief

AI extract

What is this about?

Second appeal against dismissal of a suit for partition of property obtained by the plaintiffs' predecessor in a 1948 final decree. Defendants proved a 1967 court-auction purchase with sale certificate, delivery accounts and land tax receipts; plaintiffs produced no possession records. Both substantial questions of law were answered against the appellants and the appeal was dismissed.

What the court decided

AI extract

V.M. Prabhakaran Vs Padmavathi Amma — Partition | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

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WEDNESDAY, THE 28^TH DAY OF MAY 2024/7TH JYAISHTA, 1946

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RSA NO. 1515 OF 2013

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AGAINST THE JUDGMENT AND DECREE DATED 19.08.2013 IN AS NO.28 OF 2012 OF SUB COURT, KOYILANDY ARISING OUT OF THE JUDGMENT AND DECREE DATED 14.08.2012 IN OS NO.200 OF 2010 OF MUNSIFF COURT, PERAMBARA

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APPELLANT/1ST APPELLANT/1 ST PLAINTIFF:

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V.M. PRABHAKARAN

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AGED 55 YEARS, S/O KUNHUNNI KURUP, VATAKKAYIL MEETHAL HOUSE, MENHANNIAM AMSOM DESOM, PERAMBRA P.O., KOYILANDY TALUK, KOZHIKODE DISTRICT.

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BY ADV C.K.UDAYAKUMARY

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 PADMAVATHI AMMA, AGED 58 YEARS, D/O KUNHUNNI KURUP, CHERAYANGOTT, SREEPADAM, NADUVANNUR AMSOM, KAVIL DESOM, KOZHIKODE - 673 614.

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2 PANKAJAKSHI, AGED 52 YEARS, D/O KUNHUNNI KURUP, THODUVANKUZHI HOUSE, BALUSSERY AMSOM, THURURTHIAD DESOM, POST THURURTHIAD, KOYILANDY TALUK, KOZHIKODE - 673 614, NOW RESIDING IN DREAM HOUSE, KOLORKANDY HOUSE, KOKKALLUR, BALUSSERY, PIN - 673 612.

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3 DAMODARAN NAIR, AGED 72 YEARS,S/O.GOPALAN NAIR, CHELOT KUZHIYIL HOUSE, MENHANNIAM AMSOM, PANDIKODE DESOM, P.O.MENHANNIAM, KOYILANDY TALUK, KOZHIKODE - 673 614.[ (DIED) LEGAL HEIRS IMPLEADED]

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4 RAGHU AGED 38 YEARS, S/O DAMODARAN NAIR, CHELOT KUZHIYIL HOUSE, MENHANNIAM AMSOM, PANDIKODE DESOM, P.O.MENHANNIAM, KOYILANDY TALUK, KOZHIKODE - 673 614.

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RSA.1515/2013

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5 KELOTH PRABHAKARAN KIDAVU, AGE AND FATHER'S NAME NOT KNOWN, KOLERIKANDY HOUSE, EDAKKULAM AMSOM, MELUR DESOM, P.O.MELUR, KOYILANDY TALUK, KOZHIKODE - 673 614.

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ADDL.6 SMT.KAMALAKSHI AMMA, AGED ABOUT 68,W/O.LATE DHAMODHARAN NAIR, CHELOTKUZHIYIL HOUSE,MENHANNIAM AMSOM, PANDIKODE DESOM,MENHANNIAM (PO), KOYILANDY TALUK, KOZHIKODE-673525.

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ADDL.7 SHOBANA, AGED ABOUT 42,D/O.LATE DHAMODHARAN NAIR, CHELOTKUZHIYIL HOUSE,MENHANNIAM AMSOM, PANDIKODE DESOM,MENHANNIAM (PO), KOYILANDY TALUK,KOZHIKODE-673525.

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ADDL.8 RAMESAN, AGED ABOUT 40,S/O.LATE DHAMODHARAN NAIR, CHELOTKUZHIYIL HOUSE,MENHANNIAM AMSOM, PANDIKODE DESOM,MENHANNIAM (PO), KOYILANDY TALUK,KOZHIKODE-673525.

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ADDL.9 INDIRA, AGED ABOUT 35,D/O.LATE DHAMODHARAN NAIR, W/O.SURESH,PUTHIYEDATH,NEELECHIKUNNU, VADAYAM (PO),KOZHIKODE-673518.

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(LEGAL HEIRS OF DECEASED 3^RD RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 6 TO 9 AS PER ORDER DATED 01.02.2024 IN IA.NO.765/2014 IN RSA.1515/2013)

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ADDL.10 CHEAMMACHEL PHILIP, S/O.ITTY KUNJU,KOORACHOONDU P.O., KOZHIKODE-673527.

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ADDL.11 JOSE MANI, N3,GALAXY LUXUR,KUMARANASAN NAGAR, PONNURUNNI,ERNAKULAM-682020.

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ADDL.12 CHELOTTUKUZHI PRAMEELA,

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W/O.RAJESH,CHELOTTUKUZHI P.O., KAYANNA,(VIA) PERAMBRA,KOZHIKODE-673526.

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RSA.1515/2013

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(R10 to R12 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 10 TO 12 AS PER ORDER DATED 01.02.2024 IN IA. NO.3316/2015 IN RSA.NO.1515/2013)

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BY ADVS. M.VANAJA RAMASWAMY – R1 & R2 K.LAKSHMINARAYANAN - R4 & 5, SATHYASHREE PRIYA EASWARAN- ADDL R10-12

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2024, THE COURT ON 28.05.2024 DELIVERED THE FOLLOWING:

RSA.1515/2013

J U D G M E N T

Dated this the 28^th day of May, 2024

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This second appeal has been preferred by the appellants in AS No.28 of 2012 on the file of the Sub Judge, Koyilandy, who are the plaintiffs in O.S. No.200/2010 on the file of the Munsiff Court, Perambra, against the judgment and decree dated 19.8.2013, dismissing the appeal. For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.

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The plaintiffs 1 and 2 filed the suit for partition of the plaint

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schedule property obtained by the deceased Kunjunni Kurup as per final decree in RIA.4259/1948 in OS.599/46 of Munsiff's Court Payyoli. According to the plaintiffs, they along with defendants 1 and 2 are the legal representatives of deceased Kunjunni Kurup and as such the schedule property is liable to be partitioned into four equal shares among them. However, the defendants 3 to 5 are raising some false claim over the said property.

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The defendants 1 and 2 supported the plaintiff's claim.

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However, defendants 3 to 5 would contend that the share allotted to

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Kunjunni Kurup in OS.No.599/1946 was put to sale in EP.No.267/67 on 1.4.1968 and it was purchased by the 3^rd defendant. The sale was made absolute on 27.5.1968. The sale certificate was issued to him and property was delivered to him on 4.7.1968 as per order in EA.499/68. Accordingly, the 3^rd defendant became the absolute owner in possession and enjoyment of the schedule property. He had paid land tax to the schedule property, effected improvements, availed loans from bank and a portion of the same was assigned to his wife and defendants 4 and 5. Deceased Kunjunni Kurup had no right over the schedule property and therefore, they opposed the claim for partition.

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After evaluating the available evidence, the trial court accepted the contentions of defendants 3 to 5 and dismissed the suit. The First Appellate Court confirmed the findings of the trial court. Dissatisfied with the above judgment and decree of the First Appellate Court, the 1^st plaintiff preferred this appeal.

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During the pendency of this appeal, the 3^rd defendant died and additional defendants 6 to 9 were impleaded as his legal representatives. Assignees of portions of schedule property were

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impleaded as additional respondents 10 to 12.

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At the time of admission, the following substantial questions of law were formulated by this Court:

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(i) Are the courts below justified in non-suiting the 1^st plaintiff/appellant in a suit for partition accepting the documents relied upon by defendants 3 to 5?

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(ii) Are there not factors which would throw doubt on the court sale and issuance of sale certificate projected by D3 to D5?

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At the time of arguments, the learned counsel for the plaintiffs would argue that the trial court as well as the First Appellate Court went wrong in evaluating the available evidence in the proper perspective. She further prayed for remanding the matter to the trial court for fresh disposal. On the other hand, the learned counsel for the respondent Nos.4, 5 and 10 to 12 would argue that no such substantial questions of law actually exists in this case. Further, according to him, the trial court as well as the First Appellate Court evaluated the available evidence correctly and reached the correct conclusion and therefore, he prayed for

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RSA.1515/2013

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dismissing the appeal.

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The plaintiffs filed this suit for partition claiming that the plaint schedule property originally belonged to deceased Kunjunni Kurup, who died intestate, was succeeded by them along with defendants 1 and 2. In the plaint schedule description, the extent of the plaint schedule property is not specifically mentioned. Instead, the plaint schedule property is described as the property obtained by Kunjunni Kurup as Plot A in the plan of item No.9 in the final decree proceedings RIA.4259/1948 in OS.599/46 on the file of Munsiff Court, Payyoli. The fact that deceased Kunjunni Kurup obtained the plaint schedule property as per the final decree proceedings in O.S.No.599/1946 is not in dispute. The case of the defendants is that the above property obtained by Kunjunni Kurup as per the final decree proceedings in O.S.No.599/1946 was sold in E.P. No.267/1967 and that it was purchased by the 3^rd defendant and

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as such Kunjunni Kurup had no right, title or possession over the plaint schedule property.

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The defendants produced Exhibits B1 to B30 documents to

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substantiate their contention that the plaint schedule property was

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purchased by the 3^rd defendant in court auction and also that they are enjoying the same. Exhibit B1 is the sale certificate in E.P. 267/1967 in O.S.599/1946 of Munsiff Court Payyoli. Exhibits B2 and B3 are delivery accounts in E.A. 499 / 68 and EA.660/68 of the same court. Exhibits B6 to B25 are the land tax receipts. From Exhibit B1 sale certificate it can be seen that plot A in item No.9 involved in the final decree in O.S. No.599/46 was sold in court auction in favour of the 3^rd defendant. From Exhibits B2 and B3 it can be further seen that the aforesaid property was delivered to the 3^rd defendant on 4.7.1968. From the land tax receipts produced, it can be seen that after obtaining plaint schedule property as per Exhibits B1,B2 and B3, the 3^rd defendant started paying land tax to the said property.

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The plaintiffs filed this suit only in the year 2010, long 57 years after the order in RIA 4259/1948 (15.04.1953) and 42 years after the sale of the plaint schedule property in court auction. In the meantime, the entire records of the trial court were destroyed and new court came at Perambra. At the time of evidence, one of the contentions taken by the plaintiffs was to the effect that Exhibits B1

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to B3 are fabricated documents. However, there was no such pleadings in the plaint to substantiate the said allegation. It was in the above context, the trial court as well as First Appellate Court rejected the above contention raised by the plaintiffs.

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In order to get a decree for partition, the plaintiff's have to prove the title of their predecessor Kunhunni Kurup. In that respect, the only documents produced by the plaintiff's are Exts.A1 and A2, certified copy of the order in RIA 4259/1948 and the certified copy of the suit register in OS.599/1946. They could not produce even a scrap of paper to prove that they have taken delivery of the plaint schedule property allegedly obtained as per Exts.A1 and A2. They also could not produce even a single land tax receipt or any other documents to prove that they have ever possessed or enjoyed the plaint schedule property at any point of time during the past more than five decades, between 1953, the year of Ext.A1 and 2010, the year of the suit.

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On the other hand, Exhibits B1 to B3 produced by the defendants are sale certificate and delivery accounts issued from a

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competent court of law containing the signature of the Munsiff Magistrate and the seal of the court. It was in the above context, the First Appellate Court found that presumption under Section 114(e) of the Indian Evidence Act is available to Exhibits B1 to B3 documents. Those documents prima facie substantiates the contention of the defendants that the 3^rd defendant purchased the plaint schedule property in court auction and took delivery of the same thereafter. Exhibits B6 to B26 also show that he has effected mutation and paid land tax for the said property. In this context, it is also to be noted that the predecessor of the plaintiffs, Kunjunni Kurup had never challenged Exhibits B1 to B3 documents during his life time, though he was a party to those proceedings. In this case, there is absolutely no evidence or circumstances to suspect the genuineness of Exhibits B1 to B3 documents. Exhibits B4 and B5, the subsequent assignment deeds in favour of defendants 4 and 5 and Exhibits B6 to B26, land tax receipts in their favour also substantiates the defence case. In the above circumstances, the finding of the First Appellate Court that presumption under Section 114(e) of the Indian Evidence Act is available in favour of Exhibits

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B1 to B3 documents, is perfectly justified.

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The law is well settled that the party, who is in possession of best available evidence has to produce the same before the Court to enable the court to arrive at a just decision. In the instant case, the plaintiffs filed the suit for partition of the plaint schedule property claiming that the said property belonged to deceased Kunjunni Kurup. Exhibits B1 to B3 are the best evidence to establish that the right and title of Kunjunni Kurup over the plaint schedule property was sold in court auction in favour of the 3^rd defendant. In the above circumstances, the trial court as well as the First Appellate Court are perfectly justified in relying upon Exhibits B1 to B3 and other documents produced by the defendants in non-suiting the plaintiffs. In the above circumstances, the substantial questions of law formulated by this Court are liable to be found against the plaintiffs. No other substantial questions of law were raised by the learned counsel for the plaintiffs at the time of arguments.

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In the light of the above discussions and findings on substantial questions of law referred to above, it can be seen that

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there is absolutely no irregularity or illegality in the findings of trial

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court as well as the First Appellate Court so as to call for any interference. Therefore, this Regular Second Appeal is liable to be dismissed.

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In the result, this RSA is dismissed. Considering the facts, I

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order no costs.

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Sd/-

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C. PRATHEEP KUMAR, JUDGE

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sou.

V.M. Prabhakaran v. Padmavathi Amma

Case brief

What is this about?

What the court decided

V.M. Prabhakaran v. Padmavathi Amma

Case brief

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What the court decided

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