The plaintiff in a suit for injunction is the appellant. The defendant is his brother. The plaint schedule property which measures 30 cents is comprised in Sy.No.435/3 of Kozhinjampara village. Ext.A1 is the purchase certificate obtained by the plaintiff in respect of the entire property shown therein which measures 2.45 acres. According to him, he was in possession of the said property. The suit is only in respect of 30 cents of land from out of the aforesaid 2.45 acres. The plaintiff contended that he had been in possession of the said property. The defendant filed written statement disputing the plaint claim.
2. The plaintiff and one witness were examined as PW1 and PW2 and Exts.A1 to A14 were marked. The defendant got himself examined as DW1 and three other witnesses were examined as DW2 to DW4. Besides, Ext. B1 to B3 were also marked.
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3. The learned Munsiff pointed out the inconsistency in the stand taken by the defendant to hold that the case advanced by him is unacceptable. Accepting the case of the plaintiff that the plaint schedule property is part of the property covered by the purchase certificate obtained by him as per Ext.A1, and also relying upon the tax receipt and other documents, the trial court found that the plaintiff, who is the elder brother of the defendant, was in possession of the suit property measuring 30 cents of land on the date of the suit and hence, the suit was decreed.
4. The lower appellate court mainly relied upon Ext.B3 an unregistered document evidencing family settlement and Ext.B1 an unregistered document styled as "Instrument of Defacto Assignment of Possession", found that the defendant was in possession of the property and thus in reversal of the decree granted by the trial court, the suit was dismissed.
5. The learned counsel for the appellant would submit that it is a case where the plaintiff could establish his right of possession over the property. Ext.A1 is the purchase certificate in respect of the entire 2.45 acres of land. Plaintiff S.A No.244/2001 : 3 : was also paying land revenue in respect of the said property. Even as per the written statement filed by the defendant (see Paragraph 3 last of the written statement), the suit property lies in between the property measuring 1 acre and 5 cents in the possession of the plaintiff and on acre of land in the possession of the defendant and his brother Sivaraman. If Ext.B3 the family settlement is accepted as true, then the property that was admittedly held by the plaintiff is 1.15 acres whereas the property jointly allotted to the defendant and his brother is only one acre. If so, the 30 cents of land, even according to the defendant which lies in between the two plots was not subjected to partition/family settlement evidenced by Ext.B3. It was so admitted by DW1 in cross-examination also (Page 8 of the deposition of DW1). In paragraph 3 of Page 2 and also in paragraph 4 of Page 3 of the written statement the plea raised by the defendant is that even in 1970 the plaintiff and other members of the family had given him possession of the plaint schedule property. That plea is against the case subsequently developed by the defendant. The learned counsel for the appellant points out that the case advanced by the defendant is that he obtained assignment of possession of S.A No.244/2001 : 4 : 30 cents of land as per Ext.B1 dated 25.3.1987. The genuineness of this document was disputed by the plaintiff. Besides, it is an unregistered document. Hence, according to the learned counsel, this document cannot be admitted in evidence or looked into for any purpose.
6. The learned counsel for the respondent submits that the suit property was not properly identified and that the description in the plaint schedule would show that disputed 30 cents of land forms part of 2.15 acres in survey no. 435/3. The learned counsel for the respondent would submit that the property should have been properly identified. But this contention has been stoutly resisted by the learned counsel for the appellant pointing out the admission made by DW1 as to the boundaries of the suit property as shown in the schedule to the plaint. Not only that, in the written statement it was stated that he was put in possession of the property by his father in 1970. In evidence, at one place it was stated by him that he was in possession of the property prior to 1970. When he was examined in chief, it was at first stated that the plaintiff was allotted 1 acre 45 cents in the partition entered into between the appellant on the one hand and the S.A No.244/2001 : 5 : respondents and his brother on the other hand was allotted one acre. Of course, when he was cross examined on the next hearing date he stated that the earlier statement was incorrect. True, it might have been a mistake. But the fact remains that in evidence he has stated that the suit property lies in between 1 acre of land allegedly allotted to him and 1.15 acres of land allotted to the appellant as per Ext.B3.
7. It is vehemently argued by the learned counsel for the appellant that if the appellant was in possession of the property prior to 1970 or in 1970 as stated by him earlier, then there was no necessity of having a document of assignment from the appellant in 1987. The case pleaded by the defendant is mutually irreconcilable, the learned counsel for the appellant submits.
8. The trial court has considered the evidence in detail and came to the conclusion that the plaintiff could prove that he is in possession of the suit property. As stated earlier, the execution of Ext.B1 was denied. It is also pertinent to note that Exts B1 and B3 were not produced nor were those documents confronted to PW1 during examination. The defendant, who wanted to rely upon those documents to rest S.A No.244/2001 : 6 : his case, should have produced those documents and should have confronted to PW1. But those documents were produced at a belated stage when DW1 was examined. That apart, the execution of those two documents was denied by the appellant. But still the respondent did not choose to examine any witness to prove those documents. Those two documents were marked subject to objection regarding proof and admissibility.
9. So far as Ext.B1 - the document of assignment is concerned, it cannot be pressed into service since it is an unregistered document evidencing transfer of property. Since Ext.B1 was not proved in the manner required by law, simply by seeing the signature and making an opinion that it contains the signature of the appellants, when that opinion itself is not based on any tangible material, it cannot be used to prove a document, the execution of which was denied.
10. It appears in respect of the properties left behind by the father of the plaintiff and defendants, there is a suit for partition also. It also appears that Ext.B3 was also challenged in that suit. Admittedly, the sisters were not parties to it. Therefore Exts.B1 and B3 may not be binding on the other S.A No.244/2001 : 7 : sharers. The defendants did not resist the suit on the ground that they are co-owners. Be that as it may, so far as the dispute involved in this appeal is concerned, since the case set up by the defendant is unacceptable, there was no reason to upset the finding entered by the trail court. The lower appellate court was not justified in reversing the judgment of the trial court. As such the evidence would show that the plaintiff was in possession of the property as on the date of the suit. The decree granted by the trial court is to be restored.
In the result, this appeal is allowed. In reversal of the decree and judgment of the lower appellate court, the judgment and decree passed by the trial court are restored. It is made clear that the finding in this case will not affect the claim of the parties to the partition suit.
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N.K.BALAKRISHNAN, JUDGE das // True copy // PA to Judge