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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. 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

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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

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    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.