Dismissed

Vijayamma v. G.Venugopal,(Died) Lhs Recorded

Kerala HC15 Mar 2024RSA/330/2018

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal challenging a partition decree. The Court upheld the First Appellate Court's finding that the relevant women were sisters and entitled to shares, accepting additional birth records as public documents under the Evidence Act without formal proof, and dismissed adverse possession claims.

What did the court decide?

Regular second appeal dismissed; preliminary decree confirming partition among siblings allowed; no order as to costs; interlocutory orders vacated and pending applications dismissed.

Vijayamma Vs G.Venugopal,(Died) Lhs Recorded — Partition | Kerala HC (2024)

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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 A. BADHARUDEEN

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FRIDAY, THE 15TH DAY OF MARCH 2024 / 25TH PHALGUNA, 1945

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RSA NO. 330 OF 2018

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AGAINST THE DECREE AND JUDGMENT DATED 15.12.2017 IN A.S.NO.307/2004

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ON THE FILES OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE-II,
MAVELIKARA AROSE FROM THE DECREE AND JUDGMENT DATED 30.07.2004 IN
O.S.NO.479/2001 ON THE FILES OF THE MUNSIFF COURT, MAVELIKARA

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APPELLANTS/RESPONDENTS 1 TO 5/CROSS APPELLANTS/DEFENDANTS 1 TO 5:

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1 VIJAYAMMA

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AGED 81 YEARS, ANASWARA FROM KALEEKKAL VEEDU,
KOTTARKAVU MURI, MAVELIKKARA VILLAGE,
ALAPPUZHA DISTRICT - 690 101.

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2GEETHADEVI
AGED 54 YEARS, ANASWARA FROM KALEEKKAL VEEDU,
KOTTARKAVU MURI, MAVELIKKARA VILLAGE,
ALAPPUZHA DISTRICT - 690 101.

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3SUDHADEVI
AGED 52 YEARS, ANASWARA FROM KALEEKKAL VEEDU,
KOTTARKAVU MURI, MAVELIKKARA VILLAGE,
ALAPPUZHA DISTRICT - 690 101.
4GIRI
AGED 48 YEARS, ANASWARA FROM KALEEKKAL VEEDU,
KOTTARKAVU MURI, MAVELIKKARA VILLAGE,
ALAPPUZHA DISTRICT - 690 101.
5MANOJKUMAR
AGED 46 YEARS, ANASWARA FROM KALEEKKAL VEEDU,
KOTTARKAVU MURI, MAVELIKKARA VILLAGE,
ALAPPUZHA DISTRICT - 690 101.
BY ADVS.
SRI.P.T.GIRIJAN
SMT.USHA NARAYANAN
SRI.ABRAHAM GEORGE JACOB
C.MURALIKRISHNAN (PAYYANUR)

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RESPONDENT NO.1/ADDL.APPELLANT NO.2/RESPONDENT NO.10 IKN CROSS

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APPEAL/DEFENDANT NO.14:

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1G.VENUGOPAL, (DIED) LHS RECORDED
AGED 69 YRS, S/O.LATE BHANUMATHY AMMA, KALEEKAL VEEDU,

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R.S.A. No. 330 of 2018

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KOTTARKAVU MURI, PRESENTLY AT NO. 162, NARIPETH, JALGAON, MAHARASHTRA.

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2 LEKHA NAIR

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AGED 63 YEARS, LAKSHMI PRABHA, N.S.S.KARAYOGAM ROAD, THIRUMALA P.O., VALIYAVILA, THIRUVANANTHAPURAM - 695 001.

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3 ABHIJITH NAIR AGED 39 YEARS, LAKSHMI PRABHA, N.S.S.KARAYOGAM ROAD, THIRUMALA P.O., VALIYAVILA, THIRUVANANTHAPURAM - 695 001.

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4 ABHISHEK NAIR, (DIED) AGED 37 YEARS, LAKSHMI PRABHA, N.S.S.KARAYOGAM ROAD, THIRUMALA P.O., VALIYAVILA, THIRUVANANTHAPURAM - 695 001.

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(IT IS RECORDED THAT THE 4TH RESPONDENT EXPIRED ON 30.06.2020 AS PER ORDER DATED 27.11.2020, VIDE MEMO DATED 19.11.2020.)

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5 VIJI AGED 48 YEARS, GANESA MANDIRAM, KOTTARKAVU MURI, MAVELIKARA VILLAGE, ALAPPUZHA DISTRICT - 690 101.

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6 VIJAYA VASUDEVAN AGED YEARS, VIJAYALAYAM, KOTTARKAVU MURI, MAVELIKARA VILLAGE, ALAPPUZHA DISTRICT - 690 101.

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7 R. RAVEENDRAN NAIR AGED 68 YEARS OF KALEEKKAL, KOTTARKAVU MURI, (R.R.NAIR, Q.NO.63 D TYPE III, SECTOR III OF CHANDRA), CHANDRAPUR, MAHARASHTRA.

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8 JAYAPRAKASH NARAYANAN AGED 62 YEARS, OF KALEEKKAL VEEDU, KOTTARKAVU MURI, PRESENTLY AT 162, NAVIPETH, JALGAON, MAHARASHTRA.

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9 LATHA NAIR AGED 46 YEARS, KALEEKKAL VEEDU, KOTTARKAVU MURI,(156 BAJAJ NAGAR, NAGPUR 10)

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10 RAJESWARI UPADHYAY AGED 58 YEARS, D/O. LATE SHAKUNTHALA, 8, JAWAHARLAL NEHRU CANCER HOSPITAL CAMPUS, IDGAH HILLS, BHOPAL 462 001.

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11 USHA AGED 59 YEARS, D/O. LATE SHAKUNTHALA, 8, JAWAHARLAL NEHRU CANCER HOSPITAL CAMPUS, IDGAH HILLS, BHOPAL 462 001.

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12 RAJENDRA KUMAR AGED 55 YEARS, S/O. LATE SHAKUNTHALA, 8, JAWAHARLAL NEHRU CANCER HOSPITAL CAMPUS, IDGAH HILLS, BHOPAL 462 001.

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13 ADDL R13 PRIYANKA ABHISEK NAIR

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AGED 35 YEARS, WIFE OF THE LATE ABHISHEK NAIR,
B-51,ARCHANA NAGAR,PONGUMOODU,MEDICAL
COLLEGE,THIRUVANANTHAPURAM,PIN-695 101.
14ADDL R14
ANEEKA,
AGED 5 1/2 YEARS (MINOR),
DAUGHTER OF THE LATE ABHISHEK NAIR, B-51,
ARCHANA NAGAR, PONGUMOODU, MEDICAL COLLEGE,
THIRUVANANTHAPURAM,PIN-695 101.
REPRESENTED BY MOTHER AND NATURAL GUARDIAN,
PRIYANKA ABHISHEK NAIR, RESIDING AT B-51,
ARCHANA NAGAR, PONGUMOODU, MEDICAL COLLEGE,
THIRUVANANTHAPURAM,PIN-695 101.
(LEGAL HEIRS OF THE DECEASED 4TH RESPONDENT ARE
IMPLEADED AS ADDL.RESPONDENTS 13 AND 14 AS PER ORDER
DATED 15.06.2022 IN IA.4/2020.)
15ADDL.R15
SUDHA VENUGOPAL
DAUGHTER OF LATE G.VENUGOPAL,LIG 18, BDA COLONY,
ANTODAYA NAGAR, RAISEN ROAD,BHOPAL,PIN-462 023.
16ADDL. R16
SUMEET VENUGOPAL
SON OF LATE G.VENUGOPAL,LIG 18, BDA COLONY, ANTODAYA
NAGAR, RAISEN ROAD,BHOPAL,PIN-462 023.
(LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDL.R15 &
R16 AS PER ORDER DATED 23.02.2023 IN IA.3/2022)
BY ADVS.
RINNY STEPHEN CHAMAPARAMPIL-R1,R15,R16
RESMY M.S-R2,R3,R13,R14
SRI.NIRMAL V NAIR-R7 TO 12

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR JUDGMENT ON
15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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“C.R.”

JUDGMENT

Dated this the 15^th day of March, 2024

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This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.307 of 2004 dated 15.12.2017 on the files of the Court of the Additional District Judge-II, Mavelikkara arose from decree and judgment in O.S. No.479 of 2001 dated 30.07.2004 on the files of the Munsiff Court, Mavelikara. The appellants herein are defendants 1 to 5 and the respondents are legal representatives of the original plaintiff Bhanumathiamma and other defendants. Later, additional respondents 13 and 14 got impleaded as the legal heirs of the 4^th respondent and additional respondents 15 to 16 got impleaded as the legal heirs of the 1^st respondent.

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Heard both sides in detail and perused lower court records.

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As per order dated 22.03.2018, my learned predecessor admitted this appeal by formulating the following substantial questions of law:

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Can additional documents produced in an appeal under Order XLI Rule 27 of the Code of Civil Procedure (in short, CPC) which is disputed by the other party, be accepted in evidence without proof of those documents ?

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When additional documents are produced in appeal under Order XLI Rule 27 CPC, without satisfying any of the grounds enumerated under Order XLI Rule 27 CPC, can such additional documents be accepted by the appellate court?

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On hearing both sides, one more substantial

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question of law arose for consideration and the same is also formulated as under:-

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Is it correct to hold that in view of the decision of the Apex Court in Hemaji Waghaji jat v Bhilkhabhai Khengarbhai Harijan reported in 2008 KHC 4892, the law of adverse possession now exists is not recognized by the Hon'ble Supreme Court of India?

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In this matter, the suit was originally filed by Bhanumathiamma claiming 1/3^rd share in the plaint schedule property and also to declare that Gift Deed No. 54/1991, Sale Deed No.56/1991 and Sale Deed No.25/1994 are not binding on the plaintiff. According to the plaintiff, the property was originally held by Bhageerathiamma, the mother of the plaintiff and the plaint schedule property is succeeded by the plaintiff and her siblings, viz; Nandakumar and Vijayamma. The 1^st defendant is Vijayamma and defendants 2 to 5 are her children. Defendants 6 to 8 are the legal heirs of deceased Nandakumar, who is the brother of the plaintiff and the 1^st defendant. Defendants 9 and 10 are the subsequent purchasers of the plaint schedule property from defendants 1, 3 to 5. Other defendants are the children of the plaintiff.

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Defendants 1 to 5 filed joint written statement and denied the partible nature of the property. The 1^st defendant denied plaintiff as her sister and daughter of Bhageerathiamma. Accordingly, the 1^st defendant raised contention that the plaintiff could not succeed in the

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matter of partition.

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The 10^th defendant, who purchased the property from defendants 1, 3 to 5 filed written statement admitting that the plaint scheduled property was originally owned by Bhagareethiamma and contending that the plaintiff, the 1^st defendant and Nandakumar are the sharers to the property by birth. Similarly defendants 3 to 5 are also entitled to get a share. Right of defendants 11 to 15 was also admitted. 10^th defendant, who purchased 6 cents of property form part of the plaint schedule property from defendants 1, 3 to 5, as per sale deed No.25/1994 dated 04.01.1994, raised plea of adverse possession over the same.

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Earlier the suit was tried by the trial court and the matter reached upto this Court vide RSA No. 34/2011 and this Court remanded the matter to the first Appellate Court for considering appeal afresh, since it was reported that, at the time when the First Appellate Court delivered the judgment, Bhanumathiamma died, on 30.04.2010. The present judgment in A.S. No.307/2004 dated 15.12.2017, is the judgment delivered after remanding of this matter by

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this Court.

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The trial court raised necessary issues and tried the matter. PWs 1 and 2 examined and Ext.A1 to A5 marked on the side of the plaintiff. DWs 1 and 2 examined and Exts.B1 and B2 series marked on the side of the defendants. Finally, the trial court dismissed the suit holding that even though the plaintiff succeeded in proving that she is the daughter of deceased Bhageerathiamma and is entitled to get share in the property, her right has been extinguished by adverse possession and limitation, at the option of the 10^th defendant.

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The decree and judgment of the trial court was challenged before the Appellate Court vide A.S. No.307/2004. Before the first Appellate Court, the plaintiff produced additional documents marked as Ext.A6 to A10 with a petition to receive the same. Reception of the above documents led to raising of 1^st and 2^nd substantial questions of law in this appeal. While considering the appeal, cross objection at the instance of defendants 1 to 5 also was considered whereby defendants 1 to 5 challenged

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the findings entered by the Learned Munsiff regarding the entitlement of share by the plaintiff. The Appellate Court, on re appreciation of evidence found that the plaintiff, 1^st defendant and deceased Nandakumar are children of Bhageerathiamma and they were entitled to get 1/3^rd share each in the Item No. 1 property. Accordingly, the appeal was allowed by passing preliminary decree as under:-

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(a) The plaint schedule item No.1 property excluding the building in item No. 2 and 3 properties is allowed to be partitioned by metes and bounds into three equal shares.

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(b) The 2^nd plaintiff/appellant and the defendants 12 to 15 being the legal heirs of the original plaintiff are jointly entitled to get 1/3^rd share. The defendants 6 to 8 being the legal heirs of late Nandakumar are also jointly entitled to get 1/3^rd share. The remaining 1/3^rd share goes to the share of the first defendant.

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(c) The first defendant and deceased Nandakumar are entitled to get their share separated in final decree on payment of court fee.

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(d) If possible, the building in item No. 2 and 3 properties shall be included in the share of the first defendant.

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(e) Share of income claimed by the plaintiff is not allowed.

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(f) the plaintiff is allowed to realise the cost of the suit as well as the cost in appeal from the defendants 1 to 5 and their assets.

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(g) The parties are allowed to apply for passing a final decree within three months. “

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According to the learned counsel for the 1^st respondent, the trial court, in fact, found on evidence that the plaintiff is the daughter of late Bhageerathiamma. Defendants 1 to 5 raised cross objection challenging the said finding. Ext.A6 to A10 were marked by allowing IA No. 778/2017 filed by the plaintiff. Similarly IA No.2/2017 filed by the defendants 1 to 5 also was allowed and one document filed by them also was admitted in evidence as Ext.B3.

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In this matter, as per the available evidence, the

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trial court found that the plaintiff is the daughter of Bhageerthiamma, while rejecting partition on the ground that the 10^th defendant perfected title by adverse possession over the plaint schedule items, even though the 1^st defendant did not raise any contention as to adverse possession, as pointed by the learned counsel for the defendant.

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13. Much dispute raised in the matter of acceptance of Ext.A6 to A10 documents by the First Appellate Court and grant of decree based on the same. It is pointed out by the learned counsel for the appellants that, when the appellants applied under the Right to Information Act, regarding the authenticity of Exts.A6 to A10 before the Mavelikkara Municipality and also before the Govt.H.S. for Girls, Mavelikkara, they replied that the records pertaining to the above certif i cates were not available and the reply so given are produced before this Court as Annexures.A3 and A4. He also submitted that I.A. No.5/2022 fled by the appellants to i be allowed to receive documents produced as Annexures.A1 to A4.

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14. In response to this argument, the learned

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counsel for the 1 st respondent fled I.A. No.1/2023 and i produced the certif i ed copy of birth register extracts issued by the Municipality similar to that of Exts.A7 and A8, again when applied by the 1 st respondent.

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15. The learned counsel for the appellants submitted that, even though documents def i ned under Section 74 of the Indian Evidence Act, 1872, are admissible without formal proof thereof, the documents now produced before the Appellate Court as Exts.A6 to A10 could not be accepted without formal proof. In this connection, the learned counsel for the appellants placed a decision of the Karnataka High Court reported in Khatalsaheb Wd. Khadir Saheb Inamdar (Dead by L.Rs) and Another v. Ameersaheb and Others [1995 (1) Kar.L.J.663], where while dealing with births and deaths extracts, the Karnataka High Court observed as under:

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“13. The law in this regard can be summarised as follows:-

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Birth and death extracts can be admissible in evidence under Section 35 of the Evidence Act to show that a particular

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person by that name mentioned in the document was either born or dead on that particular day. But, in order to establish that the said entry relates to a particular person, there must be some evidence led by the party contending that such an entry relates to a particular person. Further, it is very clear that the entry in that birth or death extract cannot be a document to prove the paternity of a person mentioned there, because it is not the duty of the person who makes those entries to make any entry as to the paternity of the person mentioned there. The entries are only regarding birth and death of the person concerned and the official concerned is required to make these entries only in the discharge of his official duties. The document cannot be used for any purpose other than to prove the date of birth or death of a particular person mentioned in the extract. On the basis of mere entries in the birth or death extract, the paternity of a person cannot be determined. For that purpose, a party concerned will have to lead some other evidence to prove that a particular person was born to a particular

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man when that point is in issue in the case.”

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16. Another decision of this Court reported in Govinda Pillai Sukumara Pillai v. Lakshmi Amma Kochappi Amma [1957 KHC 178], also placed to contend that it is not safe to accept a mere entry in the birth register as proof of the age of the child concerned without some evidence or admission of the parties about the identity of the parents and the child mentioned in the register.

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17. The decision of the High Court of Nagpur reported in State Government, Madhya Pradesh v. Kamruddin Imamoddin [MANU/NA/087/1955] has been placed to contend that Section 35 of the Indian Evidence Act, 1872 does not mean that each and every entry made in the register is admissible in evidence.

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18. Per contra, the learned counsel for the 1 st respondent has placed a decision of the Apex Court reported in [(2009) 12 SCC 454] Sham Lal alias Kuldip v. Sanjeev

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Kumar and Others , wherein the Apex Court dealt with a secondary school leaving certif i cate and held after answering

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question No.3 as under:

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"Question 3

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21. One of the documents relied upon by the learned District Judge in coming to the conclusion that the plaintiff is the son of the deceased Balak Ram is Ext. P-2, the school leaving certificate. The learned District Judge, while dealing with this document has observed:

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"On the other hand, there is a public document in the shape of school leaving certificate, Ext. P-2 issued by Head Master, Government Primary School, Jabal Jamrot recording Kuldip Chand alias Sham Lal to be the son of Shri Balak Ram. In the said public document as such Kuldip Chand alias Sham Lal was recorded as son of Shri Balak Ram."

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The findings of the learned District Judge holding Ext. P-2 to be a public document and admitting the same without formal proof cannot be questioned by the defendants in the present appeal since no objection was raised by them when such document was tendered and received in evidence.

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22. It has been held in Dasondha Singh v. Zalam Singh that an objection as to the

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admissibility and mode of proof of a document must be taken at the trial before it is received in evidence and marked as an exhibit. Even otherwise such a document falls within the ambit of section 74, Evidence Act, and is admissible per se without formal proof”

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19. Another decision reported in [ILR Vol.L 716] Maharaj Bhanudas Narayanboa Gosai v. Krishnabai, wife of Chintaman Maharudra Deshpande and Another, also placed by the learned counsel for the 1 st respondent, wherein the Bombay High Court dealt with the authenticity of a Transfer Certif i cate granted by the Head Master of a School. In the said decision it was observed as under:

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“A “transfer certificate” granted by the Head Master of a school in a Native State and duly certified by the Resident, is admissible in evidence under sections 35 and 79 of the Indian Evidence Act, 1872. The Court can also presume under section 114 of the Evidence Act that the certificate has the same character as the school leaving certificate in British India.”

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20. The learned counsel for the 1 st respondent also placed decisions reported in OIC Ltd v. Hira Devi [2021 SCC OnLine HP 9245], Wadi v. Amilal and Others [2015 KHC 1199 : 2015 (1) SCC 677] and Vidhyadhar v. Manikrao and Another [1999 KHC 1091 : 1999 (3) SCC 573 : AIR 1999 SC 1441], to contend that entries in the birth register and death register are public documents and admissible under Section 37 of the Evidence Act and it is not necessary to prove, who made the entries and what was the source of information.

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21. In this case, the main dispute is whether deceased Nandakumar and Bhanumathiamma are the children of Bhageerathiamma. According to the 1 st respondent, Bhageerathiamma had three children viz. Nandakumar, Bhanumathiamma and Vijayamma. But, the appellants would contend that Nandakumar and Bhanumathiamma are the children of one Naniyamma and the one and only child born to Bhageerathiamma is Vijayamma. Therefore, the entire property left by Bhageerathiamma would devolve upon Vijayamma alone.

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22. Though, this contention was appraised by the trial

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court, the trial court relying on the evidence of PWs 1 and 2, found that Nandakumar and Bhanumathiamma are also the children of Bhageerathiamma, while disallowing the prayer for partition on the fnding of adverse possession raised by i the 10 th defendant, who subsequently purchased an item of plaint schedule property.

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23. When the matter taken in appeal, the Appellate Court reversed the f i nding as to adverse possession and also concurred the fnding of the trial court holding that i Nandakumar, Bhanumathiamma and Vijayamma are the children of Bhageerathiamma for which reliance on Exts.A6 to A10 also given. Accordingly, preliminary decree for partition was passed.

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24. The learned counsel for the appellants pointed out that since Exts.A6 to A10 and its genuineness are in dispute, in view of Annexures.A3 and A4 produced before this Court, inclusive of documents placed by the 1 st respondent along with I.A. No.1/2023, an opportunity shall be given to parties to adduce evidence to prove the said fact.

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25. When the learned counsel for the appellants is asked to justify the evidence to support the contention

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raised by Vijayamma that, she is the only daughter of Bhageerathiamma, the learned counsel submitted that this fact is admitted by the plaintif f in the plaint and apart from that Exts.A4 and A5, the extract of voters list during the year 1964 and 1970 would substantiate the same.

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26. The specif i c case put up by Bhanumathiamma is that Bhageerathiamma had three children viz. Nandakumar, Bhanumathiamma and Vijayamma. But, in the written statement fled by Vijayamma, she denied the said fact. On i perusal of Ext.A4 voters list during 1964, persons’ names mentioned therein are, Madhavan Pillai Ammini Pillai, Bhageerathiamma Madhavan Pillai, Bhanumathiamma Raghavan Pillai, Vijayamma Bhageerathiamma. Ext.A5, is the extract of the voters list for the year 1970, persons’ names incorporated therein are Madhavan Pillai Ummini Pillai, Bhageerathiamma Madhavan Pillai, Bhanumathiamma Raghavan Pillai, Vijayamma Bhageerathiamma, Raveendran Nair Raghavan Pillai, Shakunthala Manisuvilal.

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27. Though, Exts.A4 and A5 show the name of Bhanumathiamma also in the voters list, but her husband’s name is shown as Raghavan Pillai and the mother’s name did

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not depict in the above documents. But in Exts.A4 and A5, Bageerathiamma is shown as the mother of Vijayamma.

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28. The learned counsel for the 1 st respondent given heavy reliance on the evidence of PW2, one Indira Unnithan, to prove the relationship between the parties and to ascertain the fact that Bhageerathiamma had three children, viz. Nandakumar, Bhanumathiamma and Vijayamma. On reading the evidence of PW2, who deposed by fling chief i af fi davit that Bhageerathiamma had three children and during cross-examination she disclosed the details.

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29. Ext.A9 is the school admission extract issued by the Headmistress of Govt.H.S. for Girls, Mavelikkara bearing date 09.08.2004. As per Ext.A9, the name of the student is shown as B. Bhanumathiyamma. In the column to show father’s or guardian’s name, the name shown is K.Bhageerathiamma, Kaleekkal Veedu, Kottarkavu, Mavelikkara. Ext.A6 is the f i rst page of SSLC Book in the name of Nandakumaran Nair M, who is the predecessor of defendants 5 to 8. In Ext.A6 name of the guardian is shown as Madhavan Pillai, but the name of mother is not shown therein. Ext.A7, according to the plaintif f is the birth extract

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of Bhanumathiamma. On perusal of Ext.A7, name of person recorded as “not entered”. But name of mother is shown as Bhageerathiamma. The certif i cate was issued on 26.06.2004. Similarly, Ext.A8 is the birth extract as that of Nandakumar, placed to convince that Nandakumar is the son of Bhageerathiamma. Ext.A8 certif i cate also was issued on 28.06.2004 in the same fashion as of Ext.A7, without mentioning the name of the person. Ext.A10 is the certif i cate issued by the Principal, Govt.V.H.S. School, Mavelikkara on 17.12.2004 certifying that the date of birth of M. Nandkumaran Nair, S/o S. Madhavan Pillai, Kalikkal Veedu, Mavelikkara, is 03.05.1945 (as per school records).

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30. The learned counsel for the appellants submitted that Ext.A9 school extract could not be believed, since during cross-examination, Bhanumathiamma admitted that she studied upto 4 th class alone, though as per Ext.A9, it is stated that she joined in standard V-B and she leaved the school on standard VI for the reason for want of payment of fee.

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31. Coming to the f i rst and second substantial

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questions of law, Order 41 Rule 27 (aa) of CPC, introduced with ef f ect from 01.02.1977, provides that the the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the Appellate Court.

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32. At the same time, Order 41 Rule 27(a) provides that the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. Similarly, Order 41 Rule 27(b) provides that the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. So, acceptance of additional documents shall be subject to the three conditions laid down in Order 41 Rule 27 (a), (aa) and (b) of CPC and satisfaction

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of one of the conditions alone is suf fi cient to accept additional evidence. Thus, as provided as Order 41 Rule 27(b), it is within the power of the Appellate Court to accept documents to enable it to pronounce judgment.

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33. In the case at hand, the First Appellate Court admitted documents produced by the appellants as well as the respondents. Therefore, the acceptance of additional documents by the Appellate Court could be held as one to enable the Appellate Court to pronounce judgment as provided under Order 41 Rule 27(b) of CPC. Accordingly, f i rst and second substantial questions of law answered holding that the Appellate Court has the power to accept additional documents, which would not require proof even at the appellate stage. Further, it is held that the Appellate Court accepted the documents to deliver judgment in the matter in dispute.

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34. Coming to the nature of documents marked as Exts.A6 to A10, the same are public documents dealt under Section 74 of the Indian Evidence Act, 1872. As per Section 74(1)(iii) of the Indian Evidence Act, documents forming part

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of the acts or records of the act of public ofces, legislative, fi judicial and executive, [or any part of India or of the Commonwealth], or of a foreign country are public documents. Similarly, public records kept [in any state] of private documents are also public documents. Except the above documents, all are private documents as per Section 75 of the Indian Evidence Act. Sections 76 and 77 of the Indian Evidence Act, 1872 provides as under:

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76. Certified copies of public

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documents. -Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written, at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.

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Explanation- any officer who, by the

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R.S.A. No. 330 of 2018

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ordinary course of official duty, is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

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77.Proof of documents by production of certified copies - Such certified copes may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

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35. In the instant case, Exts.A6 to A10 are public

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documents and the same are admissible even without formal proof thereof. Therefore, it could not be held that, in view of Annexures.A3 and A4, issued by the concerned departments/of fi ces later under the RTI Act, where again the Municipality issued birth certif i cates similar to that of documents covered by Exts.A6 to A10, could not be admitted without formal proof thereof. Therefore, the said challenge at the instance of the appellants stands repelled.

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36. In this matter, as I have already discussed, apart from Exts.A6 to A10 documents, in Exts.A4 and A5 voters lists the name of Bhanumathiamma is available along with

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R.S.A. No. 330 of 2018

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Vijayamma. PW2 deposed that Bhageerathiamma had three children and during cross-examination it was brought out that they are Bhanumathiamma, Nandakumar and Vijayamma. This fact is also admitted by the 10 th defendant, who subsequently purchased an item of plaint schedule property from defendants 1, 3 to 5. Thus, it has to be held that the First Appellate Court rightly found that Bhageerathiamma had three children and therefore, the plaint schedule property is partible among them.

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37. Coming to the third substantial question of law, the essentials to perfect title by adverse possession are well settled. When addressing the requirements of adverse possession, the classical requirements of adverse possession are; nec vi, nec clam and nec precario, that it should be peaceful, open and continuous. (1) nec vi means neither by force. If the rightful owner of the property is constantly visiting the property, trying to get back possession, but the adverse possessor is throwing him out and is maintaining his wrongful possession by force, then his adverse possession does not begin. (2) nec clam means neither secretly. If the

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R.S.A. No. 330 of 2018

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possession of the wrongful occupier is a guarded secret, and the legal owner cannot be reasonably expected to know of the fact of the loss of possession to the wrongful occupier, then also adverse possession does not begin. (3) nec precario means neither licence or permission. Since the concept of adverse possession is nec vi nec clam nec precario, there must in the first instance be actual possession and secondly there must be open hostile animus; possession required must be adequate in continuity, in publicity and in extent to show that his possession is adverse to the competitor. It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession. Consonant with this principle the commencement of adverse possession in favour of a person, implies that that person is in actual possession, at the time with a notorious hostile claim of exclusive title, to repal which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot

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R.S.A. No. 330 of 2018

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commence until he obtains actual possession with the requisite animus. The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It must be actual, visible, exclusive, hostile and continued for over the statutory period. The hostile character of the possession is gauged by the animus of the person setting up adverse possession. The question of animus is a question of personal equation of the prescriber and not that of the person whose title is sought to be acquired. Thus, where a person was found to be in possession on behalf of another, notwithstanding that the latter admitted the farmer's possession to be on his own account, it could be held that the former's possession was only on the latter's behalf and not adverse to him. The animus of the prescriber alone determines the nature and quantum of the estate that is being prescribed. Adverse possession depends on intention of the occupant to claim and hold the land in opposition to the whole world and also embodies the idea that the owner or persons interested in the property have knowledge of the assertion of ownership by the occupant. Adverse possession

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R.S.A. No. 330 of 2018

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consists of actual possession with intent to hold solely by the possessor to the exclusion of all others. Ins held as under:

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38. Since, claim of adverse possession/possessory title

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is available to a defendant to protect his adverse possession as a shield and to f i le suit by a person who claims possessory title, as a sword, the fnding of the f i i rst Appellate Court holding the view that the decision reported in Hemaji Waghaji jat ’s case (supra), the law of adverse possession is not recognized by the Apex Court is patently illegal and without properly understanding the position of law. In this decision, though the Apex Court opined that the law of adverse possession as exists is extremely harsh for the true owner and a windfall for a dishonest person, who had illegally taken possession of the property of the true owner and thereby recommended the Union of India to seriously consider and make suitable changes in the law of adverse possession. Since no amendments brought into change the law of adverse possession so far and Article 65 of the Limitation Act is still in operation, the learned frst Appellate i Court misunderstood the ratio laid down in the decision

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R.S.A. No. 330 of 2018

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and held so. Therefore, it is held that as per the ratio in Hemaji Waghaji jat ’s case (supra), the Apex Court not recognized the law of adverse possession, in any manner.

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39. Summing up, it is held that the First Appellate Court’s verdict, f i nding that Bhanumathiamma,

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Nandakumar and Vijayamma are the children of Bhageerathiamma and consequential partition granted, does not require any interference at the hands of this Court.

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Accordingly, this regular second appeal fails and the same stands dismissed, but no order as to costs.

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All interlocutory orders stand vacated and all

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interlocutory applications pending in this regular second appeal stand dismissed.

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 Sd/-

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A. BADHARUDEEN JUDGE

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R.S.A. No. 330 of 2018

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APPENDIX OF RSA 330/2018

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APPELLANTS ANNEXURES:
ANNEXURE A1OFFICE COPY OF THE REQUEST DATED
04.12.2021 SUBMITTED BY THE PETITIONER,
ALONG WITH THE RECEIPT NO.12420/21 DATED
04.12.2021 ISSUED BY MUNICIPAL OFFICE
MAVELIKKARA ALONG WITH THE ENCLOSURES
ANNEXURE A2THE REPLY NUMBER G1-12420/21 DATED
20.12.2021 ISSUED BY PUBLIC INFORMATION
OF MAVELIKKARA MUNICIPALITY TO THE 4TH
PETITIONER
ANNEXURE A3THE OFFICE COPY OF THE APPLICATION
SUBMITTED BY THE PETITIONER TO THE
PUBLIC INFORMATION OFFICER, GOVERNMENT
GIRLS HIGH SCHOOL, MAVELIKARA ALONG WITH
ITS ENCLOSURES
ANNEXURE A4THE REPLY NO.30/2020-21 DATED 27.12.2021
ISSUED BY THE PUBLIC INFORMATION OFFICER
(HEAD MASTER) DATED 27.12.2021
RESPONDENTS ANNEXURES:
ANNEXURE R15(a)CERTIFIED COPY OF THE BIRTH CERTIFICATE
DATED18/04/2023REGISTEREDON
04/07/1100M.E.ASREGISTRATION
NO.132/1100 OF MAVELIKARA MUNICIPALITY
ANNEXURE R15(b)CERTIFIED COPY OF THE BIRTH CERTIFICATE
DATED18/04/2023REGISTEREDON
25/09/1120M.E.ASREGISTRATION
NO.325/1120 OF MAVELIKARA MUNICIPALITY

Vijayamma v. G.Venugopal,(Died) Lhs Recorded

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Vijayamma v. G.Venugopal,(Died) Lhs Recorded

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