IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 295 of 2007()
1. K.MOHANAN PILLAI,S/O.KARUNAKARAN PILLAI
... Petitioner
Vs
1. PADMAVATHY AMMA, W/O. PADMALAYATHIL
... Respondent
2. K.ASOKAN,S/O.PADMALAYATHIL
3. K.AJAYAN,S/O..PADMALAYATHIL
4. K.MANOJ KUMAR,,S/O..PADMALAYATHIL
5. INDIRA VIJAYAN D/O.PADMALAYATHIL
6. K.MALATHY SASI,D/O.PADMALAYATHIL
7. K.AJITHA,D/O.KARUNAKARAN PILLAI,
8. K.SHOBHANA,D/O.KARUNAKARAN PILLAI,
9. K.MAYA,D/O.KARUNAKARAN PILLI AND
For Petitioner :SRI.DINESH R.SHENOY
For Respondent :SRI.T.KRISHNAN UNNI (SR.)
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :11/03/2009
O R D E R
M. SASIDHARAN NAMBIAR, J.
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F.A.O.No. 295 OF 2007
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Dated this the 11th day of March, 2009
J U D G M E N T
Plaintiff in O.S.256 of 2001 on the file of Sub Court,
North Paravur is the appellant. Respondents are the defendants.
Appeal is filed against the judgment in A.S.222 of 2005
whereunder Additional District Judge, North Paravur set aside
the decree and judgment passed by learned Sub Judge and
remanded the suit for fresh disposal. A.S.222 of 2005 was filed
by the defendants challenging the preliminary decree. Appellant
instituted the suit contending that the plaint schedule properties
jointly belonged to the appellant and respondents and the
properties are to be divided into ten equal shares and one such
share is to be allotted to the appellant. It is the case of the
appellant that item Nos.1 and 2 of plaint schedule properties are
the properties allotted to the Thavazhy of first respondent
mother and appellant and respondents 2 to 9, the children, as
schedule E of Ext.A1 partition deed and item No. 3 of the
property was purchased by first respondent out of the income
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from the said properties as well as the consideration received by
the selling portions of the properties allotted under Ext.A1. It
was contended that under Ext.A2 partition deed, some of the
properties were divided but item Nos. 1 and 2 were not divided
thereunder and therefore they are available for partition. It was
also contended that though item No.3 was purchased under
Ext.A3 sale deed by first respondent, it was for the benefit of all
the members of the Thavazhy and the said property is also
available for partition. Respondents resisted the suit contending
that plaint schedule properties are not the properties available
for partition but the independent properties of the first
respondent and therefore appellant is not entitled to claim for
partition. It was also contended that first respondent has
executed settlement deeds in favour of the other respondents
and the properties are not available for partition. It is also
contended that item No.3 of the plaint schedule property was
purchased by first respondent and appellant has no right to
claim partition.
2. Before the trial court, appellant alone was examined
as PW1 and respondents did not adduce any oral evidence.
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Exts.A1 to A7 and C1 series were marked. Learned Sub Judge,
on the evidence, found that item Nos.1 and 2 of the plaint
schedule properties are the properties allotted to the Thavazhy
of the first respondent and her children and therefore the
properties are available for partition. It was also found that item
No.3 of the plaint schedule property was purchased out of the
income from the properties allotted to the Thavazhy under
Ext.A1 and therefore it is also available for partition. A
preliminary decree was passed.
3. Respondents challenged the preliminary decree in
A.S.222 of 2005 before the first Appellate Court. Appellants
produced four documents as per I.A.478 of 2006. Those
documents are the registration copies of the settlement deed
executed by the first respondent in 1998 in favour of the
respondents 8 and 4. Learned District Judge allowed I.A.478 of
2006 and received the documents as additional evidence and
marked as Exts.B1 to B4. Learned District Judge after
acceptance of Exts.B1 to B4 remanded the suit for fresh disposal.
It is challenged in this appeal.
4. The appeal was admitted on the following substantial
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questions of law:
(1) Whether the lower Appellate Court was justified
in receiving additional documents in evidence
without satisfying the requirements under Order
XLI Rule 27 of Code of Civil Procedure ?
(2) Whether the First Appellate Court was justified
in remanding the suit by receiving additional
evidence when the additional documents are
unilateral documents created by the respondents?
5. Learned counsel appearing for appellant and the
learned senior counsel appearing for respondents were heard.
6. Item Nos. 1 and 2 of plaint schedule properties are
two of the properties allotted to the Thavazhy of first respondent
and her children under schedule E of Ext.A1 partition deed.
Though under Ext.A2 partition deed, some of the joint properties
of the Thavazhy were later divided in 1973, item Nos. 1 and 2 of
the plaint schedule properties were not divided under Ext.A2.
Item No.3 of the plaint schedule property was acquired under
Ext.A3 sale deed. Learned Sub Judge accepted the case of the
appellant that the said acquisition, though in the name of the
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first respondent mother is for and on behalf of the Thavazhy and
therefore found that it is also available for partition. Though it
was contended before the trial Court that the properties
exclusively belong to the first respondent, no evidence was
adduced. Learned District Judge did not consider the findings of
the learned Sub Judge on the evidence on record and instead
accepting the additional documents produced as per I.A.478 of
2006 and marking the additional documents as Exts.B1 to B4,
remanded the suit back to the trial Court. I.A. 478 of 2006 filed
under Rule 27 of Order XLI of Code of Civil Procedure was
allowed for the reason that respondents have stated in the
affidavit of that application that photocopies of the documents
were produced before the trial court but being photocopies they
were not accepted and if the documents are received, it will not
prejudice the appellant.
7. Under Rule 27 of Order XLI of Code of Civil Procedure
Appellate Court can permit a party to produce additional
documents only if the party satisfies the provisions of clause (a)
or clause (aa) or clause (b) of Rule 27. If additional documents
are to be received under clause (a), the first Appellate Court the
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documents were produced but not received by the trial Court,
should have been received in evidence. When the documents
received as per I.A.478 of 2006 are not the documents which
were produced before the trial court, as even according to the
respondents what was produced before the trial Court was only
photocopies of the documents, the additional documents could
not have been received under clause (a). If clause (aa) is to be
invoked, first appellate court should find that in spite of due
diligence the documents could not have been produced. There is
no such finding by the first appellate court. If the additional
evidence is to be received under clause (b), first Appellate Court
should require those documents to pronounce judgment or there
should be other substantial reasons.
8. The judgment of the first appellate court and the
order receiving the additional documents do not show that
I.A.478 of 2006 was considered in the light of the provisions of
Rule 27 of Order XLI of Code of Civil Procedure. Even if it is
stated that the documents are to be received as additional
evidence, it does not mean that suit is to be remanded to the trial
court. Learned District Judge should have considered the appeal
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on merits. Even if it is found that additional evidence is to be
received, the effect of the additional evidence so received should
have been considered and only thereafter the suit should have
been remanded. As the additional documents could have been
received under clause (b) for pronouncing a better judgment, the
learned District Judge should have heard I.A.478 of 2006 only
along with the hearing of the appeal and not earlier. Acceptance
of additional documents under Rule 27 of Order XLI without
considering the evidence considered by the trial Court and then
remanding the appeal to the trial Court for the reason of
acceptance of additional evidence is illegal. As the additional
documents are documents executed by the respondents inter se,
in the absence of plea of ouster and adverse possession, they
would not have any difference in the right of the appellant for a
share. This aspect was not considered by the first appellate
court. The judgment of the learned Additional District Judge
does not show that the appeal was heard on merits. The order of
remand is therefore bad in law.
Appeal is allowed. Order of remand is set aside. A.S.222 of
2005 is remanded to Additional District Court, North Paravur for
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fresh disposal in accordance with law. The order in I.A.478 of
2006 is also set aside and I.A. 478 of 2006 is restored to file.
Additional District Judge is directed to hear that application
along with the appeal. Parties are directed to appear before
Additional District Judge, North Paravur on 8.4.2009.
M. SASIDHARAN NAMBIAR, JUDGE
okb