IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 1^ST DAY OF JULY 2024 / 10TH ASHADHA, 1946 OP(C) NO. 75 OF 2018 AGAINST THE ORDER/JUDGMENT DATED IN OS NO.545 OF 1998 OF II ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM PETITIONERS:

1 N.DIVAKARAN SON OF LATE NARAYANAN, SUBEDAR IN THE INDIAN ARMY WHO IS NOW STATIONED IN MUMBAI AND HAVING PERMANENT RESIDENCE AT TC 16/2902,TAGORE GARDENS, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM PIN:695 011.

2 MRS L. CHANDRIKA WIFE OF DIVAKARAN,RESIDING AT TC 16/2902, TAGORE GARDENS,MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM PIN:695 011.

BY ADVS.

SRI.V.SURESH SMT.N.P.ASHA SRI.G.SUDHEER RESPONDENTS:

1 DAVID LIVINGSTON ROHINI BUILDINGS, PATTOM, THIRUVANANTHAPURAM PIN 695 012.(DIED)

2 SUMATHI BAI W/O LATE DAVID LIVINGSTONE AN 22 SHEELA COTTAGE, ARADHANA NAGAR, MARUTHOOR MANNANTHALA P O TRIVANDRUM PIN 695015

3 SHEELA D/O LATE DAVID LIVINGSTONE AN 22 SHEELA COTTAGE, ARADHANA NAGAR, MARUTHOOR MANNANTHALA P O TRIVANDRUM PIN 695015

4 RAMLA D/O LATE DAVID LIVINGSTONE AN 22 SHEELA COTTAGE, ARADHANA NAGAR, MARUTHOOR MANNANTHALA P O TRIVANDRUM PIN 695015

5 KALA D/O LATE DAVID LIVINGSTONE AN 22 SHEELA COTTAGE, ARADHANA NAGAR, MARUTHOOR MANNANTHALA P O TRIVANDRUM PIN 695015

6 BEELA D/O LATE DAVID LIVINGSTONE AN 22 SHEELA COTTAGE, ARADHANA NAGAR, MARUTHOOR MANNANTHALA P O TRIVANDRUM PIN 695015 (ADDL.RESPONDENTS 2 TO 6 ARE IMPLEADED VIDE ORDER DATED 06/01/2021 IN IA.NO 1/2020 AS THE LR'S OF DECEASED SOLE RESPONDENT)

BY ADVS.

SMT.J.HARIPRIYA K.B.PRADEEP GOPIKRISHNAN NAMBIAR M K.JOHN MATHAI(K/413/1984)

JOSON MANAVALAN(J-526)

KURYAN THOMAS(K/131/2003)

PAULOSE C. ABRAHAM(MAH/58/2006)

RAJA KANNAN(K/356/2008)

R.CHETHAN KRISHNA(K/646/2013)

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON

01.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

“C.R.”

J U D G M E N T

Ext.P4 order passed by the Additional Munsiff Court-II, Thiruvananthapuram (for short, 'the trial court') is under challenge in this original petition.

2. The petitioners herein are the plaintiffs, and the 1^st respondent herein is the defendant in O.S.No.545/1998 on the file of the trial court. The suit was one for declaration of title and recovery of possession. The plaintiffs claim that the plaint schedule property belongs to them and is in their possession. In the written statement and the additional written statement, the defendants raised rival title and possession over the plaint schedule property. It was contended that, he purchased a larger extent of property from persons who had been allotted plots as per the final decree in a suit for partition; that he obtained possession over the property in execution of that final decree by delivery through court and that the plaint schedule property was a part of the property delivered over to him in execution of the decree.

3. The parties went on trial. After the oral evidence on the side of the plaintiffs was over, the defendant was examined on commission as DW1. He filed proof-affidavit in lieu of chief- examination before the commissioner and marked Exts.B1 to B14. The counsel for the plaintiffs objected to the marking of the documents tendered as Exts.B2, B8, B9 and B10. The objections were recorded by the commissioner, and they were reserved to be decided by the court at the stage of hearing as contemplated under the proviso to Rule 4 of Order XVIII of CPC. It is evident from Ext.P3 testimony of DW1.

4. Ext.B2 is a delivery kychit given by Amin in the execution of the final decree mentioned above. Exts.B8 to B10 are the photostat copies of the land revenue receipts in respect of the plaint schedule property. The plaintiffs objected to the marking of Ext.B2 on the ground that it is a report submitted by an Amin to the court in another suit in which they were not parties, and it cannot be proved without examining the author of that document. To be precise, the objection was to the mode of proof of Ext.B2. The objection to the marking of Exts.B8, B9 and B10 was that the documen