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2021 Supreme(Ker) 512
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N. ANIL KUMAR, J.
Many W/o Karunan – Appellant
Versus
Ayyappan S/o Thampikkuttan – Respondent
R.S.A. No. 758 of 2020
Decided On : 01-07-2021
Advocate Appeared:
For the Appellant : Sri. R. Manoj.
Point of law : mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession.
Headnote:
Code of Civil Procedure, 1908 – Section 100 – Suit for partition – Dismissal – Suit for cancellation of settlement deed – Appeal is directed against judgment and decree in O.S. on file of Munsiff's Court, as confirmed by judgment and decree in A.S. on file of Additional District Court-II – Appellants herein are plaintiffs 1 and 3 in O.S. of trial court – Suit was dismissed and having suffered such a dismissal, plaintiffs 1 and 3 instituted A.S. before first appellate court – First appellate court concurred with findings of trial court and dismissed appeal
Finding of the court:
When a mixed question of law and fact is raised for first time in second appeal touching construction of a document which was not produced before trial court, it is not expedient in interest of justice to entertain such a plea – In a second appeal, it is not open to High Court to go into questions which are neither pleaded nor dealt with by trial court or first appellate court – Section 100 of Code of Civil Procedure, jurisdiction of High Court to interfere with judgment of courts below is confined to hearing on substantial questions of law – Interference with finding of facts by High Court is not warranted if it involves re-appreciation of evidence on strength of mixed questions of law and facts. In case at hand, on basis of evidence on record, trial court and first appellate court had concurrently arrived at a finding of fact. – High Court, in second appeal, cannot reverse said concurrent findings, particularly when this Court has not been able to find out any material that findings of trial court as well as first appellate court were palpably erroneous. – High Court, it is well settled, while exercising jurisdiction under Section 100 of C.P.C. cannot reverse concurrent findings of facts on ground that on facts found by two courts below, another view was possible. – To be a substantial question of law involved in case, there must be first a foundation for it laid in pleadings and question should emerge from sustainable findings of fact arrived at by courts of facts and it must be necessary to decide that question of law for a just and proper decision of case. – question whether late Thampikuttan obtained purchase certificate for and on behalf of all co-owners is a mixed question of fact and law which cannot be raised first time in second appeal. – No substantial questions of law are involved in this case. –
Result : R.S.A. Dismissed in limine.
JUDGMENT :
N. ANIL KUMAR, J.
1. This appeal is directed against the judgment and decree dated 28.2.2014 in O.S. No. 324/2010 on the file of the Munsiff's Court, North Paravur (hereinafter referred to as ‘the trial court’) as confirmed by the judgment and decree dated 09.12.2019 in A.S. No. 41 of 2016 on the file of the Additional District Court-II, North Paravur (hereinafter referred to as ‘the first appellate court’). The appellants herein are the plaintiffs 1 and 3 in O.S. No. 324/2010 of the trial court. The suit was dismissed and having suffered such a dismissal, the plaintiffs 1 and 3 instituted A.S. No. 41/2016 before the first appellate court. The first appellate court concurred with the findings of the trial court and dismissed the appeal. For the sake of brevity, the parties are referred to in this appeal as their status in the original suit unless otherwise stated.
2. The suit was instituted for partition contending that the plaint schedule property comprising of 4.05 Ares situated in Sy. No. 310/1 of Paravur Taluk belonged to the father of the plaintiffs. Apart from the plaintiffs, their father had other children. The 1st defendant was his wife and respondents 2 to 8 are his children. The 1st defendant expired during the pendency of the first appeal. The 6th defendant was in possession of the plaint schedule property. Even though the plaintiffs requested for a partition, the same was not acceded to by the 6th defendant on the ground that his father had executed a settlement deed as document No. 5490 of Alangad Village in favour of the 6th defendant. This document was challenged by the plaintiffs on the ground that their father aged 70 years did not have the disposing capacity to execute such a deed. Hence, the plaintiffs filed the suit for cancellation of the settlement deed and also for partition of 4/10 share over the property.
3. The defendants entered appearance contending that the plaintiffs were aware of the settlement deed right from the very beginning in favour of the 6th defendant. According to the defendants, their father had sound disposing mind at the time of execution of the respective settlement deed.
4. During the trial of the case, PWs. 1 and 2 were examined and marked Exts.A1 and A2 on the plaintiffs' side. DWs. 1 and 2 were examined on the defendants' side and marked Exts.X1 and X2.
5. One of the issues framed by the trial court is as to whether the plaintiffs are entitled to get a declaration with respect to the settlement deed No. 5490/1996. Based on the evidence, the trial court entered a finding that the deceased father had voluntarily executed the settlement deed. It was found that the burden of proof to prove fraud and other vitiating circumstance is on the plaintiffs and they have failed to discharge the burden. On these findings, the learned Munsiff dismissed the suit declining the prayer for partition over the suit property. Challenging the decision of the trial court, the plaintiffs 1 and 3 preferred the appeal. The first appellate court dismissed the appeal confirming the judgment and decree of the trial court. It was found by the first appellate court that the settlement deed was executed following all procedural requirements and the documents cannot be set aside.
6. Heard the learned counsel for the appellants.
7. The learned counsel for the appellants submits that though the judgments of the two courts below are concurrent in nature, they do not reflect adjudication of a wider aspect of law and such shortcoming paves the way for the second appeal. The learned counsel further submits that Ext.A2 document very clearly specifies that the property in question devolved on Thampikuttan, the father of the 6th defendant and others through a certificate of purchase of Alangad Land Tribunal bearing No.553/72 dated 14.12.1972. The learned counsel for the appellants further submits that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give ti
