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2004(2) Supreme 486
SUPREME COURT OF INDIA
(From Kerala High Court)
R.C. Lahoti & AR. Lakshmanan, JJ.
Narayanan -Appellant
versus
Kumaran and Ors. -Respondents
Civil Appeal Nos. 820-821 of 1999
Decided on 16-3-2004
Counsel for the Parties :
For the Appellant : T.L.V. Iyer, Sr. Advocate, Gopala Krishnan R., Abhay Kumar, Subramonium Prasad, Advocates.
For the Respondents : P. Krishnamurthy, Sr. Advocate, Romy Chacko, P.N. Pillai, Ms. V. Mohana, Advocates.
Held : In our view the Schedule to the document was prepared in excess of what was intended to be conveyed. It has been fraudulently prepared as rightly found by the District Court. It is a well established principle that when there is inconsistency in the body of the document, containing the evidence clause and the schedule, the former prevails over the latter. As such when the intention of the parties was clear, the Schedule to the document should not have been allowed to override the recital clause. Like wise, the D Schedule was not intended to be conveyed is evident from the fact that there is no mention of the accredition much less between the C & D Schedule to Ext. B1. If really the entire property as bulk was being conveyed certainly the existence of the accredition or an intention to transfer the same would also have found their place in the document. The respondent has no case that he has any title to or possession of the said accredition. This very fact, in our view, cuts the root of the case of the 1st respondent to title to the disputed property. (Paras 26 and 27)
Kunjan was in possession of the disputed property. He became aware of it only when notice of O.S. 125/86 was received by him. As noted by the District Court with reference to the evidence in the case, the 1st respondent Kumaran was moving very closely with Kunjan and his family and was on of the beneficiaries of Kunjan s magnificence. It is only in 1986 when Kunjan sold the disputed property to the appellant that he instituted the suit claiming title. The finding of possession of the 1st respondent is based on the document acquired after the commencement of the suit. There is no iota of evidence for the prior period even otherwise any acts on the part of the 1st respondent is only referable to the close association with Kunjan and his family and is looking after property of Kunjan. Thus, the case of fraud put forward by the appellant is amply proved by the facts and circumstances of the case and as thoroughly discussed by the District Court and the findings of fact arrived at. We are, therefore, of the opinion that the High Court was not justified in going into the excruciating details of facts in the second appeal and that the High Court has exceeded its jurisdiction by reversing a well considered judgment of the First Appellate Court which is the Final Court of facts especially when no questions of law much less a substantial question of law arose for consideration. (Para 29)
(ii) Civil Procedure Code, 1908-Order 43, Rule 1(u)-Appeal from order of remand-Maintainable in those cases in which an appeal would lie against the decree-Appeal under Order 43 Rule 1(u) should be heard only on ground enumerated in Section 100-Appellant under an appeal under Order 43 Rule (1) clause (u) is not entitled to agitate questions of facts-High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on order of remand and cannot convass all findings of facts arrived at by Lower Appellate Court. (Para 18)
JUDGMENT
Dr. AR. Lakshmanan, J.-These two appeals were filed against the final judgment/order dated 6.3.1997 passed by the High Court of Kerala in C.M.A. Nos. 208/94 and 43/95 restoring the common judgment and decree of the Trial Court having set aside the remand order of the lower Appellate Court. The short facts are.
2. The property in dispute in this appeal belong to one Kunjan who executed a deed of settlement settling his properties including the disputed property on his daughters. One of the daughters Sumathi was minor to whom the C Schedule to the Ext. B1 was allotted. The owner kept the D Schedule items which is the disputed property to himself.
3. The 1st respondent Kumaran is a close relative of Kunjan and was very close to the family and treated as member of Kunjan s family till the dispute arose in 1986. The property settled on Sumathi of which possession continued to be with Kunjan in terms of Ext. B1. In 1976 Kumaran executed Ext. A1 and some properties were transferred to the 1st respondent, Kumaran. The property settled on Sumathi of which possession continued to be with Kunjan in terms of Ext. B1. In 1976 Kumaran executed Ext. A1 and some properties were transferred to the 1st respondent Kumaran. It is clearly recited in the document that only property covered by C Schedule to Ext. B1 which was allotted to Sumathi was the subject of transfer. This had an extent of 1.51 acres. The D Schedule property was not included in Ext. A1. However, by fraudulently and with the connivance of the 3rd respondent, the 4th defendant, the schedule to the document was also drafted as to bring the property owned and possessed by Kunjan under D Schedule to Ext. B1 as also 56 cents of lands not covered thereby. Despite this mistake described in the document, Kunjan continued to be in possession of the disputed property and its accredition while the 1st respondent, Kumaran was also closely moving with the family and there was no action from Kunjan.
4. Kunjan accordingly sold the 50 cents covered by the D Schedule Ext. B1 as also the accredition to the appellant by the deed of sale Ext. B4 on 5.3.1986. The 1st respondent was displeased at the development and he filed a suit O.S. No. 125/86 for a permanent injunction restraining them from entering into the disputed property. Kunjan became aware of the mistake in Schedule Ext. A1 only when notice of this suit was received whereupon himself and the appellant filed a suit O.S. 146/86 for injunction against the interference with his possession of the 50 cents of disputed property. The plaintiff pleaded that the transfer to the 1st respondent was only 1.51 acre and that the disputed property was not comprised or intended to be transferred or to be in possession of the vendee. They pleaded that fraud was played by Pankajakshy and her husband in the incorrect preparation of the Schedule to the document.
5. This recital was very clear that only the property allotted to Sumathi, C Schedule to Ext. B1 was transferred. The trial Court by its judgment dated 31.7.1990 held that the entirety of the C and D Schedules to Ext. B1 has been transferred. It also held that the suit filed by the appellant and Kunjan in O.S. No. 146/86 was barred by limitation. The trial Court also did not project the plea of fraud set up by Kunjan and the appellant. Accordingly, O.S. 125/86 was decreed and OS 146/86 was dismissed.
6. Pending suit Kunjan died. The appellant was the other person interested, therefore, filed an appeal and the other parties in the suit filed appeals which was disposed of by a common judgment dated 24.6.1994.
7. The District Court went into the evidence very elaborately and came to the conclusion on appreciation of the evidence that what was intended to be transferred was only the 1.5 acres comprised in C Schedule to Ext. B1 and that the D Schedule property was not conveyed under Ext. B1. Accordingly, he held that the 1st respondent did not have title of the possession either over the Schedule or the
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