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Kochukakkada Aboobacker (dead) by Lrs. & Ors. v. Attah Kasim & Ors.

Supreme Court of India · 16 January 1996

Court
Supreme Court of India
Decided
16 January 1996
Bench
Ramaswamy, K.
Length
3 pages
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PETITIONER:
KOCHUKAKKADA ABOOBACKER (DEAD) BY LRS. & ORS.
Vs.
RESPONDENT:
ATTAH KASIM & ORS.
DATE OF JUDGMENT: 16/01/1996
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
1996 SCC (7) 389 JT 1996 (1) 658
1996 SCALE (1)SP36

ACT

HEADNOTE

JUDGMENT

ORDER

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.

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