NARAYANA IYER Vs. ABRAHAM

JUDGEMENT

(1.) This Second Appeal arises out of a suit for declaration of title to and recovery of possession of property. Plaintiff's deceased grandfather obtained a decree in O.S. No. 243 of 1088 of the Tiruvella Munsiff's Court on a hypothecation bond executed by the first defendant in his favour, and the plaintiff, who obtained the right under the said decree in a partition in his family and who was impleaded in the execution proceedings as additional decree holder, purchased the plaint property in execution of the decree. When the Amin who was deputed to effect delivery of possession in pursuance of the court sale went to the property two obstruction petitions were filed before him. One of those petitions was filed by the second defendant who is the first defendant's brother, and the other was filed, according to the plaintiff, by Mathews Kathanar who was a cousin of defendants 1 and 2. The obstructors' case was that under the partitions in their family the first defendant was entitled to and was in possession of only one half Oodukur right in the northern half of the property, that the remaining one half Oodukur right in the northern half belonged to and was in the possession of the 2nd defendant and the whole of the southern half belonged to and was in the possession of Mathews Kathanar, that the first defendant was therefore competent to hypothecate only his Oodukur one half share in the northern half and not the rest of the property and the decree and execution proceedings were binding only on the first defendant's share in the property and not on the shares of the second defendant and Mathews Kathanar, and that the Oodukur one half share in the northern half belonging to the second defendant and the southern half belonging to Mathews Kathanar could not be delivered to the plaintiff. On account of the obstructions the Amin did not effect delivery and returned the warrant unexecuted to the court, and on its return plaintiff filed a petition before the execution court for removal of the obstruction. According to the plaint allegations, both the second defendant and Mathews Kathanar filed objection petitions in execution court in answer to the plaintiff's petition for removal of the obstruction, and the execution court dismissed the objections of Mathews Kathanar on 21.11.1097 and ordered delivery of possession of the southern half to the plaintiff. So far as the Oodukur one half share in the northern half claimed by the second defendant was concerned, the second defendant filed a suit, O.S. No. 111 of 1097, for declaration of his title to and possession of that share, and as that suit was decreed plaintiff lost the right to get delivery of the Oodukur one half share in the northern half claimed by the second defendant. According to the plaintiff, on 8.8.1100 he got delivery of possession of the southern half claimed by Mathews Kathanar and the Oodukur one half right in the northern half which admittedly belonged to the first defendant. Exts. C and D respectively are attested copies of the obstruction petitions Mathews Kathanar is alleged to have given to the Amin and the objection petition he is said to have filed before the execution court in answer to the plaintiff's application for removal of the obstruction, and Exts. F and G respectively are attested copies of the delivery kychit dated 8.8.1100 and the execution diary in O.S. No. 243 of 1088. Alleging that till 1109 he was in possession of the property delivered to him under Ext. F and that the defendants thereafter trespassed upon and took possession to it plaintiff brought this suit for declaration of his title to and recovery of possession of the same. Mathews Kathanar is dead, and defendants 3 to 5 are his legal representatives.

(2.) The first defendant contested the suit. According to him, the southern half belonged to Mathews Kathanar and the first defendant had no right to it and was not also competent to hypothecate that half. Mathews Kathanar was in possession of the southern half till his death, and defendants 3 to 5 are in possession of it after his death. The plaintiff has not obtained delivery of possession of the southern half, and the originals of Exts. C, D and F are sham and fraudulent documents brought into existence by the fraud and collusion of the plaintiff and the second defendant. With a view to deprive Mathews Kathanar and his legal representatives of the southern half and enable the 2nd defendant to obtain it wrongfully, the originals of Exts. C and D were caused to be filed as though they were filed by Mathews Kathanar. But they were not really filed by him, and so the order dismissing the objection petition is not binding on Mathews Kathanar and defendants 3 to 5. The plaintiff has therefore no right to the southern half and is not entitled to recover possession of the same.

(3.) The Trial Court upheld the fifth defendant's contentions. Consequently it dismissed the suit as regards the southern half and gave the plaintiff only a decree declaring his title to one half share in the southern half of the plaint property and allowing him to recover possession of that share alone. As the appeal which he filed against the Trial Court's decree was also dismissed by the lower appellate court, the plaintiff has filed this second appeal. In this court, it was contended that Exts. C, D and F prove conclusively that it was Mathews Kathanar who filed the obstruction petition in regard to the southern half, and that as his objection to the delivery of possession of the plaint property was dismissed by the execution court, and neither he nor his legal representatives filed a suit for setting aside the order of the execution court and declaring his title to the northern half within the time allowed by law the order dismissing his objection has become conclusive and that defendants 3 to 5 have therefore lost their title to the property and the plaintiff is entitled to recover possession on the strength of his title under the court sale and delivery. Relying on the decision in Thevan Sreedharan Moothathu v. Raman Raman (7 TLR 18), that a written statement filed in court is a public document and every public document duly filed in courts of Justice, under the express provisions of law, must be presumed to be genuine until the contrary is proved, the plaintiff's counsel contended that the obstruction petitions filed before the Amin and the objection petition filed in Court (i.e. the originals of Exts. C and D) are pleadings of parties similar to written statements and that they must therefore be presumed to be genuine. The decision relied upon by the plaintiff's counsel has been expressly dissented from in Krishnan v. Kalyani (14 TLJ 138). There was a dispute in that case as to whether a written statement in a previous suit which was Ext. II therein was really signed by one Aiyappan Narayanan or not. Referring to that contention and the argument put forward on behalf of the defendants respondents that Ext. II being a pleading filed in Court must be presumed to be genuine, the learned Judges who decided that case say:-