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

Citation: [1996] 1 S.C.R. 570 · Decided: 16-01-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.B. PATTANAIK · Disposal: Dismissed
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Judgment (excerpt)

A 
KOCHUKAKKADA ABOOBACKER (DEAD) BY LRS. AND ORS. 
B 
c 
v. 
ATTAH KASIM AND ORS. 
JANUARY 16, 1996 
[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 
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 
E 
F 
G 
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. 
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 
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 
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 
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 
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 : 
B 
c 
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 
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 
validity of Ext. A3 and rejected the !st defendant's contentions to the 
contrary. The statement of the 2nd defendant in his capacity
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