Holding

The High Court rightly interfered with the lower courts' findings and correctly passed a preliminary decree for partition.

Summary

The Supreme Court examined a civil appeal challenging a preliminary decree for partition of the Konchukakkada property. The trial court had placed the burden of proof on the plaintiffs, a view corrected by the appellate court, but the appellate court failed to properly consider key documentary evidence establishing the plaintiffs' title. The High Court, relying on exhibits A‑3, A‑4, A‑6, A‑5 and A‑9, found that the property belonged to the plaintiffs and that the lower courts' findings were unsupported and perverse. The Supreme Court held that the High Court was justified in interfering with the concurrent factual findings of the trial and appellate courts and in granting the preliminary decree. Consequently, the appeal was dismissed with no costs awarded.

Issues considered

Whether the High Court was justified in interfering with the concurrent findings of fact of the trial and appellate courts.
Whether the documentary evidence presented establishes the plaintiffs' title to the property sufficient to warrant a preliminary decree.
Whether the appellate court erred by not considering the documentary evidence in the proper perspective.

Subjects

partition suitdocumentary evidencepreliminary decreetitle to propertyburden of proofappellate interferencecivil procedure

Judgment

A KOCHUKAKKADA ABOOBACKER (DEAD) BY LRS. AND ORS.
v.
ATTAH KASIM AND ORS.

JANUARY 16, 1996

B [K.RAMASWAMY AND G.B. PATTANAIK, JJ.]

Property Law : )

Civil suit-Partition--Documentary evidence-Not considered in the
proper prospective by the trial Court and lower appellate Court-High Court
c interfering with the concurrent finding ~f courts holding that. title to suit
property established and Passing preliminary decree directing parties to work
out their rights-Held, High Court rightly inteifered and passed the prelimi-
nary decree.

D CIVIL APPELLATE JURISDICTION Civil Appeal No. 2701 of
1981.

From the Judgment and Order dated 13.2.79 of the Kerala High Court
in Second Appeal No. 542 of 1975.

K.R. Rajasekaran Pillai and M.R. Ramesh Babu for the Appellants.
E
Ms. Baby Krishnan and K. Prabhakaran for the Respondents.

The following Order of the Court was delivered :

Having perused the judgment of the High Court in Second Appeal No. '
542175 passed on 13.12.1979, we are of the view that the High Court has
F rightly interfered with the concurrent finding of fact recorded by the trial
Court as well as by the appellate Court and decreed th!' 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
G evidence in proper perspective of the respective claims of the parties. Admit-
tedly, the plaintiffs and the first defendant are children of Ahmmad 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
H therein of their father and that, therefore, they are entitled to partition and
570
KOCHUKAKKADA ABOOBACKER (DEAD) BY LRS. v. ATIAH KASIM 571
separate share. Ex. A-3 is a crucial document in establishing the title of the A
plaintiffs in the property. In those judicial proceedings it was declared that
the defendants in that suit had no title to the trees. 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
B
proceedings under Ex. A-4, A-S and A-9. It would thus be clear that the title
of the property which is the subject matter of th~ 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 c
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 :
D
"It is with extreme reluctance that I interfere with the concurrent
finding on quesJ)Ons 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. Al to A3 E
as well as Exts. A4, A6, AS, and A9, whatever their evidentiary value,
w,ere a pointer in the opposite direction. Exts. Al 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 F
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. AS and A9 proceedings confirmed the G
validity of Ext. A3 and rejected the !st defendant's contentions to the
contrary. The statement of the 2nd defendant in his capacity as the
power-of-attorney holder of the !st defendant's contentions to the..
contrary. The statement of the 2nd defendant in his capacity as the
power of-attorney holder of the !st defendant to the effect that Attath H
572 SUPREME COURT REPORTS [1996] l S.C.R.
A 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
B
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 Mahni and his nephew Abdul Rahman and they were self-
acquisitions of those persons. It is also clear that Abdul Rahman
c transferred his share in the property to Pathumma and her children
including the !st plaintiff. Furthermore, the plaintiffs are the heirs of
Ahmmad Malmi. The only defendant who was personally connected
with Ahmmad Malmi was the !st 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
D
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 Munsif after finding that the plaintiff did not discharge their
E burden to prove that the suit property was available for partition,
worked but 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."
..
F 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
G granted a preliminary decree for partition. We do not find any error o( law
much less substantial question of law, for interference. ,. _
The appeal is accordingly dismissed. No costs.

G.N. Appeal dismissed

l