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2017 Supreme(Ker) 143
IN THE HIGH COURT OF KERALA AT ERNAKULAM
B. KEMAL PASHA, J.
RATHIKUMARI – Appellant
Versus
K.M. RAJAN – Respondent
R.S.A. No. 28 of 2012
Decided On : 04-01-2017
For the Appellant : SRI. K.A. HASSAN.
For the Respondent: SRI. T.R. ASWAS.
The burden of proof in property disputes lies with the party claiming ownership, and the authenticity of documents, such as possession certificates, is crucial in establishing ownership.
Headnote:
Forgery - Property Dispute - Unregistered Agreements - Possession Certificate - [Forgery] - [Property Dispute] - [Indian Evidence Act, 1872 - Section 17, Indian Registration Act, 1908 - Section 17, Specific Relief Act, 1963 - Section 16] - The court discussed the admissibility of unregistered agreements for collateral purposes, the nature of possession, and the authenticity of a possession certificate. The court also considered the legal principles related to forgery and the burden of proof in property disputes.
Fact of the Case:
The plaintiff claimed ownership of certain properties through unregistered agreements and a possession certificate. The defendant contested the ownership and authenticity of the possession certificate, alleging forgery.
Finding of the Court:
The court found that the possession certificate was not authentic and the unregistered agreements were not adequately proven. Therefore, the plaintiff's claim was dismissed.
Issues: The authenticity of the possession certificate, the admissibility of unregistered agreements, and the burden of proof in property disputes.
Ratio Decidendi: The court held that unregistered agreements can be considered for collateral purposes to determine the nature of possession. However, the burden of proof lies with the party relying on such agreements. Additionally, the court emphasized the importance of authenticating documents in property disputes.
Final Decision: The Second Appeal was dismissed, and the parties were directed to bear their respective costs.
B. KEMAL PASHA, J.
1. Challenging the concurrent findings entered by the Munsiff's Court, Kanjirappally, in O.S. No. 204 of 2008 and the Sub Court, Pala, in A.S. No. 116 of 2009, the plaintiff in O.S. No. 204 of 2008 has come up with this second appeal. The suit was originally one for injunction simplicitor. Subsequently, it was amended as one for fixation of boundary also.
2. The appellant was the wife of the 1st respondent herein. Subsequently, they fell apart. Respondents 2 and 3 are the parents of the 1st respondent. Respondents 4 and 5 are the sisters of the 1st respondent.
3. The case of the plaintiff in short is that she obtained 1 Acre and 15 Cents of property in total, which are described as Schedule Nos. 1 and 2 in the plaint, through two unregistered agreements. The property is situated in a settlement area, wherein most of the inhabitants are of the community "Malayarayans" which is a scheduled tribe. Their properties cannot be transferred through registered documents. According to the plaintiffs, therefore, she obtained these properties through two unregistered agreements. Subsequently, she approached the then Village Officer to obtain possession certificate in respect of the properties and obtained Exhibit-A1 possession certificate, on the strength of which, the suit has been filed. It is her case that the 1st respondent is attempting to trespass into the property and therefore, the suit for a perpetual injunction was originally filed. Subsequently, she wanted to get the boundaries of the property fixed, for which the relief was amended accordingly.
4. The 1st respondent contended that the plaintiff has no such properties and she has never purchased any such properties through two unregistered agreements. It has been further contended that Exhibit-A1 relied on by the plaintiff is a forged document. The 1st respondent had filed an application before the trial court for keeping that document in safe custody, by alleging that it is an out come of forgery.
5. On the side of the plaintiff, PW-1 to PW-9 were examined and Exhibits-A1 to A3 were marked. On the side of the 1st respondent, DW1 and DW2 were examined and Exhibits-B1 to B8 were marked. As court Exhibits, Exhibits-C1 series and C2 series were marked. Exhibits-X1 and X1(a) were also marked. The trial court dismissed the suit, by finding that the plaintiff is not entitled to get a decree as prayed for. The matter was taken up in appeal before the lower appellate court. The lower appellate court concurred with the findings entered by the trial court and dismissed the appeal.
6. The short question to be decided in the second appeal is whether Exhibit-A1 could be treated as a forged document and whether the agreements being relied on by the plaintiff could be used for collateral purposes to trace out the possession of the plaintiff over these properties. The learned counsel for the appellant has strenuously argued that at any stretch of imagination, Exhibit-A1 cannot be treated as a forged document and no findings have been entered by an appropriate court or authority that Exhibit-A1 is a forged document. It has been further argued based on the decision in Bondar Singh and Others vs. Nihal Singh and Others, AIR 2003 SC 1905 that a document like an unregistered sale deed, even though not admissible in evidence, can be looked into for collateral purposes to see the nature of possession of the party claiming through the said document over the properties concerned.
7. Per contra, the learned counsel for the 1st respondent has argued that even the unregistered agreements, being relied on by the plaintiff, are not at all reliable or believable and therefore, the same could not be made use of for any purpose. It has also been argued that Exhibit-A1 is a forged document and the plaintiff had attempted to press into service such a forged document in order to mislead the court. According to the plaintiff, she had earlier obtained Exhibit-A1 document from the Village Offic
