Second appeal against concurrent findings rejecting a plaintiff's suit for declaration of title and boundary fixation. The court held no substantial question of law arose since the plaintiff failed to prove title, and the suit was barred for not seeking recovery of possession despite defendants being in possession.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 12TH DAY OF MARCH 2024 / 22ND PHALGUNA, 1945
RSA NO. 277 OF 2023
AGAINST THE DECREE AND JUDGMENT DATED 12.01.2023 IN A.S.NO.157/2018
ON THE FILES OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE-I,
MAVELIKARA AROSE FROM THE DECREE AND JUDGMENT DATED 31.10.2018 IN
O.S.NO.373/2012 ON THE FILES OF THE MUNSIFF COURT, KAYAMKULAM
APPELLANT/APPELLANT/PLAINTIFF:
SREEKUMARI
AGED 66 YEARS
D/O RAJAMMA PILLAI, GEETHANJALILY HOUSE, PONNAKAM MURI,
THEKKEKARA, MAVELIKKARA, ALAPPUZHA DISTRICT, PIN - 690101
BY ADV A.SHAFEEK (KAYAMKULAM)
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 ANASOYA, AGED 51 YEARSD/O PODIYAMMA, VANMEALI MURIYIL HOUSE, EREZHA NORTH MURI,
PERUNGALA VILLAGE, MAVELIKKARA, ALAPPUZHA DIST.,
PIN - 690559
2 PRIYAMVATHA
AGED 50 YEARS
D/O PODIYAMMA, VANMEALI MURIYIL HOUSE, EREZHA NORTH MURI,
PERUNGALA VILLAGE, MAVELIKKARA, ALAPPUZHA DIST,
PIN - 690559
3 KALIDAS,AGED 48 YEARS
S/O PODIYAMMA, VANMEALI MURIYIL HOUSE, EREZHA NORTH MURI,
PERUNGALA VILLAGE, MAVELIKKARA, ALAPPUZHA DIST,
PIN - 690559
4SAKUNTHALA
AGED 48 YEARS
D/O PODIYAMMA, VANMEALI MURIYIL HOUSE, EREZHA NORTH MURI,
PERUNGALA VILLAGE, MAVELIKKARA, ALAPPUZHA DIST,
PIN - 690559
5GAYATHRI,
AGED 46 YEARS, D/O PODIYAMMA, VANMEALI MURIYIL HOUSE,
EREZHA NORTH MURI, PERUNGALA VILLAGE, MAVELIKKARA,
ALAPPUZHA DIST, PIN - 690559
R.S.A. No. 277 of 2023
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6VYASAN
AGED 44 YEARS
S/O PODIYAMMA, VANMEALI MURIYIL HOUSE, EREZHA NORTH
MURI, PERUNGALA VILLAGE, MAVELIKKARA, ALAPPUZHA DIST,
PIN - 690559
THIS REGULAR SECOND APPEAL HAVING COME UP FOR JUDGMENT ON
12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 12th day of March, 2024
This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.157 of 2018 dated 12.01.2023 on the fles of the Court of the Additional District Judge-I, i Mavelikkara arose from the decree and judgment in O.S. No.373 of 2012 dated 31.10.2018 on the fles of the Munsif i Court, Kayamkulam . The appellant herein is the plaintiff and respondents are the defendants in the above suit.
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boundary. The precise allegation is that, the plaintif obtained title over the plaint schedule property comprised in old survey No.381/1C on the strength of a sale deed No.1164 dated 18.05.1994 and the plaintif f has been possessing and enjoying the same. At the same time, it is stated that the predecessor-in-interest, Sri.Ramakrishnan Nair mortgaged the entire property to Sri.Vasudeva Kurup.
Thereafter, in order to redeem the mortgage, Sri.Ramakrishnan Nair instituted O.S. No.280/1961 on the fles of the Munsif i f Court, Kayamkulam. In execution of the decree in the said suit, the property was delivered in favour of Sri.Ramakrishnan Nair, who is the decree holder in E.P. No.144/1991 in O.S. No.280/1961. According to the plaintif f , there occurred a mistake in the survey number of the property, while executing Ext.A5 sale deed. The specif i c contention is that, in the title deed, the survey number of the plaint schedule property is stated as 381/6B. But, the actual survey number is 381/1C. The further contention was that, now the mistake in the survey number was corrected by the District Collector, Alappuzha. Therefore, the plaintif is entitled to get declaration of title over the plaint schedule
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property and also the consequential reliefs.
5 . The defendants resisted the suit and denied title
of the plaintif f over the plaint schedule property and also pointed out fling of another suit O.S. No.300/2000 earlier i and dismissal of the appeal arose therefrom as per judgment of this Court dated 28.03.2012 in R.S.A. No.1111 of 2011. They also raised plea of adverse possession insofar as the plaint schedule property is concerned.
6 . The trial court recorded evidence and tried the matter after addressing rival contentions. PWs 1 to 6 examined and Exts.A1 to A7 marked on the side of the plaintif f . DWs 1 and 2 examined and Exts.B1 to B8 marked
on the side of defendants. Exts.C1 series marked as court exhibits. Exts.X1 to X8 were also marked.
7 . On appreciation of evidence, the learned Munsif dismissed the suit holding that the plaintif f failed to prove title over plaint A schedule property.
8 . Though, appeal was f i led before the Appellate Court, vide A.S. No.157/2018, the Appellate Court, reappreciated the evidence and concurred the f i nding of the trial court. It was observed by the Appellate Court that even
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though the property is now in possession of the defendants, in view of delivery in E.P. No.144/1991 in favour of Sri.Ramakrishnan Nair, no prayer for recovery of possession was sought for by the plaintif f and on that ground also the suit would not succeed.
9 . In this matter, the learned counsel for the appellant/plaintif f argued meticulously, by asserting title of the plaintif f over the plaint schedule property by highlighting the schedule description in Ext.A5. According to the learned counsel for the plaintif f , now the resurvey number has been corrected by Ext.A6 order of the District Collector.
10. The trial court specif i cally noted that even though
there was a mistake in the resurvey number in Ext.A5 title deed, no rectif i cation deed was executed at the instance of the executants of the document or his legal representatives, in any manner. Instead, the vital mistake in resurvey number in Ext.A5, which was executed in the year 1994 was corrected by the order of the District Collector, after the delivery of the property in favour of the decree holder in the previously instituted suit i.e. O.S. No.280/1961. This is the context in which the prior title deed assumes signif i cance.
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The trial court as well as the Appellate Court found that the prior title deed in the name of Sri.Ramakrishnan Nair not produced by the plaintif f to prove that he had got title in respect of the property in survey No.381/1C as per the prior title deed mentioned in Ext.A1.
11. When the plaintif f seeks the relief of declaration of title, it is the duty of the plaintif f to prove the title independently by cogent and convincing evidence and the plaintif f could not succeed on the weakness of the defendants on f i nding shelter on the plea raised by the defendants raising adverse possession, without admitting the title of the plaintif f . It is relevant to note that the Appellate Court doubted the very execution of Ext.A5 document by Sri.Ramakrishnan Nair, the father of the plaintif f in favour of his daughter by adopting the method of executing a power of attorney in favour of his son-in-law.
12. As per Ext.A5 title deed, the property in resurvey No.381/1C not incorporated and as per the proceedings of the District Collector, the survey number in Ext.A5 got corrected. I do not think that the correction made by the District Collector by itself is not suf fi cient to hold that as per
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Ext.A5, the plaintif f obtained title in respect of the plaint schedule property in survey No.381/1C, without getting support in this regard from the prior document of Ext.A5. It is admitted by the plaintif f that, now the plaint schedule property was delivered in favour of Sri.Ramakrishnan Nair, in execution of the decree in E.P. No.144/1991 in O.S. No. 280/1961. If so, the plaintif f should have sought the relief of declaration of title as well as recovery of possession and mere fling of the suit for f i i xation of the boundary would not suf fi ce the necessity of recovery of possession. Therefore, the present suit is barred as per the proviso to Section 34 of the Specif i c Relief Act, 1963. Proviso to Section 34 of the Specif i c Relief Act, is as under:
“ Discretion of court as to declaration
— of status or right. Any person entitled to any legal character; or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
PROVIDED that no court shall make any
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such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.”
“2. Power of Court to direct that the appeal be heard on the question formulated
by it. -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”
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15. Section 100 of CPC provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisf i ed that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisf i ed that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso stipulates that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisf i ed that the case
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involves such question.
16. In the decision reported in [2020 KHC 6507 :
AIR 2020 SC 4321 : 2020 (10) SCALE 168] Nazir Mohamed v. J. Kamala and Others , the Apex Court held that:
The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. In
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722].
17. In a latest decision of the Apex Court in Government of Kerala v. Joseph , reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], it was held, after referring Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge Bench), as under:
For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well –
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established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court.
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substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of CPC must be complied to admit and maintain a second appeal.
All interlocutory applications pending in this regular second appeal stand dismissed.
Sd/-
A. BADHARUDEEN JUDGE
SK
3 issues framed by the court
Did the plaintiff prove title over the plaint schedule property in survey No.381/1C?
Was the suit barred under the proviso to Section 34 of the Specific Relief Act for omitting the relief of recovery of possession?
Does any substantial question of law arise to admit the second appeal under Section 100 CPC?
Colour shows how this judgement treated each authority
Nazir Mohamed v. J. Kamala and OthersRelied on¶16
[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] · Who else cites this
Kondiba Dagadu Kadam v. Savitribai Sopan GujarReferred¶16
[(1999) 3 SCC 722] · Who else cites this
Government of Kerala v. JosephRelied on¶17
[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]
Santosh Hazari v. Purushottam TiwariReferred¶17
[2001 (3) SCC 179] · Who else cites this
3 provisions across 2 enactments
Sreekumari
Anasoya
Priyamvatha
Kalidas
Sakunthala
Gayathri
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court