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

- **Citation:** [1996] 1 S.C.R. 570
- **Court:** Supreme Court of India
- **Decided:** 1996-01-16
- **Bench:** K.Ramaswamy, G.B. Pattanaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kochukakkada-aboobacker-dead-by-lrs-and-ors-v-attah-kasim-and-ors-13876
- **Pages:** 3

## Headnote

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 preliminary decree.
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## Text

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KOCHUKAKKADA ABOOBACKER (DEAD) BY LRS. AND ORS.
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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 preliminary decree.
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CIVIL APPELLATE JURISDICTION
Civil Appeal No. 2701 of
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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. Admittedly, 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
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therein of their father and that, therefore, they are entitled to partition and
570
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KOCHUKAKKADA ABOOBACKER (DEAD) BY LRS. v. ATIAH KASIM
571
separate share. Ex. A-3 is a crucial document in establishing the title of the
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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 :
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"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
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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 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
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572
SUPREME COURT REPORTS
[1996] l S.C.R.
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 Mahni and his nephew Abdul Rahman and they were selfacquisitions of those persons. It is also clear that Abdul Rahman
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
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
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."
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Accordingly, a preliminary decree was passed by the learned judge
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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 o( law
much less substantial question of law, for interference.
The appeal is accordingly dismissed. No costs.
G.N.
Appeal dismissed
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