Allowed

A.Nathikhan v. Abdulla Khan

Madras HC8 Feb 2017SA/57/1993

Case brief

AI extract

What is this about?

Second appeal challenging partition of suit property. The High Court held that admitting additional document under Order 41 Rule 21 CPC without proving its content via a witness violates procedural law. Finding that the document did not alter title, the appeal was allowed.

What did the court decide?

Appeal allowed. The judgment and decree of the first appellate Court are reversed. No order as to costs.

A.Nathikhan Vs Abdulla Khan — Partition | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated : 08.02.2017

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CORAM

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THE HON'BLE DR. JUSTICE G.JAYACHANDRAN

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S.A. No.57 of 1993

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A.Nabhi Khan

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Vahidh Khan

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A.Mahaboob Khan

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A.Junsunlisa Begam

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Tajunnissa

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Rahjumunnisa

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... Appellants

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versus

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Abdulla Khan

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Ankara Bi

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Minor Khadar Khan

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Minor Asmath Bi

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(Minors 3 & 4 by guardian and mother Askara bi)

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The District Educational Officer,

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Vridhachalam

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The Commissioner,

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Vridhachalam

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Sellammal

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Victoria

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Bhaskaran

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Devadoss

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Manonmani

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Gunasekaran

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Habimunnissa

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Syed Sanchar

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Syed Sherfuddin

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Ijinath Bi

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Syed Bazalu Rahman

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Minor Samsunnisa

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Minor Mehrunnisa

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Minor Mubarak Unnisa .. Respondents

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(Minors 18 & 20 rep. by guardian Syed Sherfuddin)

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Prayer : Second Appeal filed under Section 100 of Civil Procedure Code against the judgement and decree passed in A.S.No.70 of 1985 dated 19.02.1991, on the file of the Sub Court, Vridhachala, recersing the Judgment and decree passed in O.S.No.74 of 1976 daed 23.12.1983, on the file of the District Munsif Court, Vridhachalam.

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For Appellant : Mr.Kingston Jerald for Mr.K.Raghunathan & V.Prabhakar

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For Respondents : Mr.Antony Jesus for R1

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Mr.V.Raghavachari for R2 to R4 N.D.W for R5 to R8 No appearance for R7 to R12 No appearance for R6, R13, R14, R15, R18, R19

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R16 & R20 Dismissed

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J U D G E M E N T

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This appeal is filed against the judgment and decree passed in A.S.No.70 of 1985 reversing the judgment and decree passed in O.S.No.74 of 1976 in respect of Item-3, Part 1 of the schedule of the suit property.

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2. The sum and substance of the facts, leading to this appeal is that, the suit property originally owned by Jaffer Khan, who died on 29.05.1974, intestate leaving behind his mother, the first plaintiff and wife and children, who are arrayed as defendants. As one of the legal heir of Jaffer Khan the plaintiff is entitled for 1/6^th share in the suit property. The 4^th defendant and the 5^th defendant are the sons of the plaintiff. The Trial Court after considering the evidence let in by the respective parties held that except Part I, Item 3, the plainiff is entitled for 1/6^th share in all other items of the properties shown in the schedule and in so for as this property, the trial Court as held that it is exclusive property of Peer Khan, the 5^th defendant in this suit. Aggrieved by the said judgment the plaintiff preferred first appeal challenging the exclusion of the Item 3 property. Before the appellate Court,

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an application to receive additional document issued by the Deputy Tahsildar, Vridhachalam was filed. The said application to receive additional document under Order 41, Rule 21 CPC filed by the appellant was opposed through counter by the respondents 7, 9 to 12, 13, 17, 18, 19 to 26, however, the appellate Court allowed the application, received the document and assigned Ex.No.A39. It went on relying upon this document and held that in the light of the additional document exhibited as Ex.A39. Part I, Item 3 of the property shown in the schedule has been sub divided into three parts and therefore, that property cannot be an exclusive property of Peer Khan, the 5^th Defendant and consequently, granted relief of partition to this item also.

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3. Aggrieved by the judgment and decree of the first appellate Court,

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the legal heirs of 6^th defendant Ameer Khan have preferred this appeal raising the following substantial questions of Law:

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"a. Is the lower appellate Court right in holding that item No.3 of Part I of schedule "A" of the suit property is available for partition on the premises that the said property belong to the Peer Khan the 5^th defendant?

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b. Is the Court below right in admitting additional documents evidence without calling for proofs and establishing relevancy?"

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This Court finds that after allowing the application to produce additional document, the Appellate Court instead of following the procedure contemplated under Order 41, Rule 28 has straight away admitted the document and assigned exhibit number, relied the document and passed judgments giving a go by to the procedures contemplated under Law for admitting an evidence and the procedure for proof of a document without examinig the author of document or any person competent to speak about this document.

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5. When this Court posed the question to the learned counsel for the respondents as to how such a document can be relied upon to arrive at a conclusion without testing the genuiness of the document and the content of the document, the learned counsel for the appellant submitted that Ex.A39

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being a public document and a certified copy of the said document it is admissible in evidence and there is no error in admitting the document and relying upon it. Further, the learned counsel also relying upon Section 79 of the Indian Evidence Act submitted that the Court shall presume the genuiness of the document purported to be a certified copy or other document, which is by Law declared to be admissible as evidence before any Court and purports to be duly certified by any Officer, who is authorised to do so.

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6. A similar submission was made by the learned counsel appearing for respondents 2 and 4 also. This Court is unable to appreciate the said submission for the simple reason that presumption of genuiness of the certificate copy is one thing and proof of the content of the document is another thing. The presumption of the genuiness of the document is a rebutable presumption, the opportunity to rebut the presumption will enure to the adverse party only if such a document is first introduced through a witness to show that primafacie it is a certificate copy issued by a person competent to issue it and such document is the true version of the record kept under the custody of a competent person. Without any proof to show

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that this document is a certified copy issued by a competent person, the presumption of its genuiness does not arise. This Court finds grave procedural error committed by the first appellate Court in relying upon Ex.A39, which has not been exibitted in the manner known to Law.

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7. This Court finds that the lower Appellate Court as a matter of fact entertained the document assigned in Ex.A39, relied upon the document and reversed the findings of the Trial Court without any witness to speak about its authenticity and content of that document. This is totally contrary to the provision of Civil Procedure Code under Order 41 , Rule 27 and 28.

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8. In the normal course, under the above circumstances, the appeal ought to be remanded to the trial Court, so as to do so, this Court ventured to look at the relevancy of the document marked as Ex.A39. This document only reveals that Survey No.149/2A1 has been sub divided into three portions viz., 149/2A1B1, 149/2A/1C and 149/2A/1A, the total extent is about 4 acres 39 cents and that has been sub

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divided into 3 parts. The subject matter of this appeal is pertaining to item 3 of the suit property, bearing survey No.149/2A/1A to an extent of 6 cents. The appellate Court had relied upon this document to ascertain the title of the property and possession of the property. The Appellate Court should have given proper appreciation of the entire document. Had that been done, it could have clearly seen that the survey number in dispute is alloted to Peerkhan and the total extent allotted to Peer Khan, the 5^th defendant is 2 acres and 81 cents. Even according to Ex.A39, there is no reason for the Appellate Court to disbelieve the case of the defendant and grant relief to the plaintiff in respect of item 3 of the property by reversing the findings of the Trial Court. Therefore, remanding the matter back, is of no purpose. The lower Appellate Court reversed the judgment of trial Court based on a document, which has not been produced during trial cannot be produced during the appeal and admitted contrary to the manner known to law. The findings of the lower Appellate Court is reversed. Accordingly, the appeal is allowed. No order as to costs. It is clarified that this appeal is only against the judgment and decree of the first appellate Court reversing the judgment

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and decree of the Trial Court judgment in respect of item 3 of the suit property alone inasmuch as no appeal is preferred against the item 2 of the property by the aggrieved parties.

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08.02.2017

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Intex : Yes/No Internet : Yes/No

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elp

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The District Educational Officer,

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Vridhachalam

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The Commissioner,

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Vridhachalam

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DR.G.JAYACHANDRAN, J

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elp

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S.A.No.57 of 1993

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08.02.2017 http://www.judis.nic.in

A.Nathikhan v. Abdulla Khan

Case brief

What is this about?

What did the court decide?

A.Nathikhan v. Abdulla Khan

Case brief

What is this about?

What did the court decide?

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