PETITIONER: KOCHUKAKKADA ABOOBACKER (DEAD) BY LRS. & ORS. Vs. RESPONDENT: ATTAH KASIM & ORS. DATE OF JUDGMENT: 16/01/1996 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J) CITATION: 1996 SCC (7) 389 JT 1996 (1) 658 1996 SCALE (1)SP36 ACT: HEADNOTE: JUDGMENT:
O R D E R
Having perused the judgment of the High Court in Second
Appeal No.542/75 passed on 13.2.1979, we are of the view
that the High Court has rightly interfered with the
concurrent finding of fact recorded by the trial Court as
well as by the appellate Court and decreed the suit.
The trial Court had wrongly proceeded on the premise of
burden of proof on the plaintiff which was corrected by the
appellate Court. However, the appellate Court committed
another error of not considering the documentary evidence in
proper perspective of the respective claims of the parties.
Admittedly, the plaintiffs and the first defendant are
children of Ahmad Malmi through his first and second wives
respectively. The only claim was with regard to one item,
namely, Konchukakkada property. It is seen that the case of
the plaintiffs was that it was left undivided to the extent
of their 3/4th share therein of their father and that,
therefore, they are entitled to partition and separate
share. Ex.A-3 is a crucial document in establishing the
title of the plaintiffs in the property. In those judicial
proceedings it was declared that the defendants in that suit
had no title to the tress. It would appear that in the
island, the title to the trees is relatable to the title to
the land. Under those circumstances, the High Court has
proceeded on the basis that it was relatable to the title to
the property. That finding gets corroboration from other
judicial proceedings under Ex. A-4, A-8 and A-9. It would
thus be clear that the title of the property which is the
subject matter of the partition suit in favour of the
respondents, stands established. The appellate Court had not
considered these documents in proper perspective and the
effect of those documents on the rights of the parties.
Accordingly, the learned Judge reluctantly had reconsidered
the evidence and, in our view, quite rightly since it is not
a mere appreciation of evidence but drawing inferences from
the admitted documents. Since proper construction of the
documents and inferences have not legally been drawn by the
appellate Court, the High Court has gone in detail and
recorded the finding thus :
“It is with extreme reluctance that I
interfere with the concurrent finding on
questions of facts. But the finding is
totally without evidence and is,
therefore, perverse. The finding is
based on total misconceptions as to the
nature of the documents relied upon. The
finding is not reasonably supported by
any evidence whatever. On the other hand
the evidence to the contrary was
ignored. Exts. A1 to A3 as well as Exts.
A4, A6, A8 and A9, whatever their
evidentiary value, were a pointer in the
opposite direction. Exts. A1 to A3
showed that the suit properties were
gifted in favour of the plaintiff. Ext.
A4 showed that the authorities competent
to decided on title to coconut trees
considered that the trees standing in
the suit property belonged to the
plaintiffs. It would appear, as stated
by the lower appellate court, that in
the Island at the relevant time,
disputes as to title to properties arose
only in the form of disputes about
trees. The dispute in regard to the
trees in Ex. A4 proceedings was thus a
dispute in regard to the ownership of
the property in which the trees stood.
Again the decision in Exts. A8 and A9
proceedings confirmed the validity of
Ext. A3 and rejected the Ist defendant’s
contentions to the contrary. The
statement of the 2nd defendant in his
capacity as the power-of-attorney holder
of the ist defendant’s contentions to
the contrary. The statement of the 2nd
defendant in his capacity as the power-
of-attorney holder of the Ist defendant
to the effect that Attath Mohammad had
rights in the suit property is also very
significant. The Munsif as well as the
Judge felt that there was a paucity of
evidence and the pleadings were far from
clear. As stated by them, the pleadings
in the Island at the relevant time were
not drafted by experts. The trial in
this case was not conducted with the
assistance of counsel, as the parties
were represented by local Mikthiars who
had no legal training. Only at the
appellate stage did counsel appear. But
with all this infirmity and handicaps,
it seems to me that one thing stands out
clear, and that is, the property in
question belonged to Ahmmad Malmi and
his nephew Abndul Rahman and they were
self-acquisitions of those persons. It
is also clear that Abdul Rahman
transferred his share in the property to
Pathumma and her children including the
Ist plaintiff. Furthermore, the
plaintiffs are the heirs of Ahmmad
Malmi. The only defendant who was
personally connected with Ahmmad Malmi
was the Ist defendant who was born to
him by his second marriage. The
plaintiffs recognise the rights of
defendants 1, 2 and 5 to claim their
share in the property in accordance with
their personal law. The case of the
plaintiffs appears to be reasonable,
just and, in the circumstances, well
founded. In my view, they are entitled
to a decree.
The Munsiff after finding that the
plaintiff did not discharge their burden
to prove that the suit property was
available for partition, worked out the
share to which the parties were entitled
in the event of his finding on the
question of partition being reversed in
appeal. The allotment of shares by the
Munsif has not been challenged, and I,
therefore, accept it as final.”
Accordingly, a preliminary decree was passed by the
learned Judge directing the parties to work out their rights
in furtherance thereof.
Having considered the totality of the facts and
circumstances, we are of the considered view that the
learned Judge had rightly interfered with the concurrent
finding of fact recorded by the trial Court and appellate
Court and granted a preliminary decree for partition. We do
not find any error of law much less substantial question of
law, for interference.
The appeal is accordingly dismissed. No costs.