This regular second appeal, filed by plaintiffs against a decree in a property dispute, was dismissed. The High Court held that the plaintiffs' claim for declaratory relief regarding their right to construct the second floor was barred by limitation under Article 58, and the lower courts correctly disallowed the prayer for declaration.
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
FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
RSA NO. 730 OF 2019
AGAINST THE JUDGMENT AND DECREE DATED 07.03.2019 IN AS
NO.13 OF 2013 OF SUB COURT, MUVATTUPUZHA ARISING OUT OF
THE DECREE AND JUDGMENT DATED 23.11.2012 IN OS NO.326 OF
2008 OF MUNSIFF COURT,MUVATTUPUZHA
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 VARGHESE, AGED 66 YEARS S/O. JOSEPH, KUNNATHU HOUSE, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK.2 YACOB, AGED 81 YEARS S/O. ULAHANNAN, CHENNILATHU PUTHENPURAYIL, KODANADU KARA, KODANADU VILLAGE, KUNNATHUNADU TALUK.BY ADVS.
ALEXANDER JOSEPH
SMT.TERESA C. JOSEPH
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 MATHEW, AGED 70 YEARS S/O. PETER, CHELATTU HOUSE, ANGADY KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK 686 691.2 BABY, AGED 66 YEARS S/O. PAULOSE, PUNNACKAL HOUSE, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK 686 691.3 P.M ANTONY, AGED 66 YEARS S/O. MANI., PUNNAKKUNNEL HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK 686 691.4 JOSE, AGED 70 YEARS S/O.JOSEPH, MAPPALAKAYIL HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK 686 691.R.S.A.No.730/2019 2
5 P P ELDHOSE, AGED 56 YEARS S/O. PAULOSE, PUNNACKAL HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK 686 691.6 P P SAJU,(STRUCK OUT)(RESTORED) (DIED) LRS IMPLEADED, AGED 66 YEARS S/O. PAULOSE, PUNNACKAL HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK 686 691.7 P.P JOSEPH, AGED 66 YEARS S/O. PAILY, S/O. PAULOSE, PUNNACKAL HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK 686 691.8 M.V MATHAIKUNJU,(STRUCK OUT)(RESTORED) S/O. VARKEY, MOLEL HOUSE, ANGADY KARA, KOTHAMANGALAM VILLAGE,KOTHAMANGALAM TALUK 686 691.9 T.K SONY,(STRUCK OUT)(RESTORED) AGED 49 YEARS, S/O. KURIAKOSE, THAKIDIYIL HOUSE, KARINGAZHA KARA, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM 686 691.10 ICEE K. VARGHESE, AGED 44 YEARS S/O. VARGHESE, KOLLELIYIL HOUSE, ANGADI KARA, KOTHAMANHGALAM VILLAGE,KOTHAMANGALAM TALUK-686691.11 BIBU BAHANAN,(STRUCK OUT)(RESTORED) AGED 31 YEARS, S/O. KURIAKOSE, ANGADI KARA, KOTHAMANGALAM VILLAGE,KOTHAMANGALAM TALUK-686 691.12 P.J ANTONY, AGED 58 YEARS S/O. JOSEPH, PEECHATTUKUDIYIL HOUSE, ANGADI KARA, KOTHAMANGALAM VILLAGE,KOTHAMANGALAM TALUK-686 691.13 MARY DEVASSYA,(STRUCK OUT)(RESTORED) AGED 62 YEARS, W/O. DEVASSYA, THANNIKODU, ANGADI KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK 686 691(RESPONDENTS6,8,9,11 AND 13 ARE STRUCK OUT FROM
THE PARTY ARRAY AS PER ORDER DATED 16.07.2021 IN
IA.1/2021)(RESPONDENTS R6,R8,R9,R11 AND R13 ARE
RESTORED TO THE PARTY ARRAY AS PER ORDER DATED
28/11/2023 IN IA 1/2023)
R.S.A.No.730/2019 3
ADDL.14JESSY SAJU, AGED 55,
W/O P. P SAJU, PUNNACKAL HOUSE, PINDIMINA KARA,
PINDIMANA VILLAGE, KOTHAMANGALAM, ERNAKULAM
DISTRICT ,PIN-686 692.
ADDL.15ARIYA SAJU, AGED 32,
D/O P. P SAJU, PUNNACKAL HOUSE, PINDIMINA KARA,
PINDIMANA VILLAGE, KOTHAMANGALAM , ERNAKULAM
DISTRICT ,PIN-686 692.
16ADDL.ELDHO SAJU, AGED 20,
S/O P. P SAJU, PUNNACKAL HOUSE, PINDIMINA KARA,
PINDIMANA VILLAGE, KOTHAMANGALAM , ERNAKULAM
DISTRICT ,PIN-686 692.
(LEGAL REPRESENTATIVES OF DECEASED SIXTH
RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 14 TO
16 AS PER ORDER DATED 11.01.2024 IN IA.2/2023)
BY ADVS.
SRI.P.V.ELIAS
No Advocate
SRI.N.N.ELAYATH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
03.04.2024, THE COURT ON 24.05.2024 DELIVERED THE FOLLOWING:
R.S.A.No.730/2019 4
A. BADHARUDEEN, J.
================================
R.S.A No.730 of 2019
================================ Dated this the 24 th day of May, 2024
J U D G M E N T
Plaintiffs in O.S.No.326/2008 on the files of Munsiff
Court, Muvattupuzha are the appellants and they impugn the decree and judgment in the above case dated 23.11.2012 as well as the decree and judgment in A.S.No.13/2013 dated 07.03.2019 on the files of the Sub Court, Muvattupuzha. The respondents herein are the defendants and their legal heirs.
plaintiffs/appellants as well as the learned counsel appear ing for the defendants/respondents. Perused the records.
3 . I shall refer the parties in this appeal as `plaintiffs’
and `defendants’ referring their status before the trial court, hereafter for easy reference.
4 . The case put up by the plaintiffs before the trial
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court was that the plaintiffs as well as the defendants are the coowners of the plaint schedule property. It is alleged that as per sale deed Nos.6607/2000 and 6608/2000 of Kothamangalam SRO, the plaintiffs and two others, viz. Xavier Paul @ Jomy and one Varghese, together got 50% undivided share in the plaint schedule property. The 1 st defendant has 25% of the undivided share and defendants 2 to 9 are having 25% shares over the plaint schedule property. In the sale deeds it was stipulated that the defendants alone will have the right to construct building above the third floor of the proposed multi-storied building. The ground floor of the building was constructed and it was partitioned among the coowners as per partition deed No.4235/2002. Thereafter the coowners executed two agreements on 16.10.2002 and 17.10.2002. As per the unregistered agreement dated 16.10.2002, it was agreed that on completion of the first floor of the building, the second party/1st defendant and third party/ defendants 2 to 9 would pay Rs.3,18,750/- and on completion of second floor of the building they would pay Rs.1,06,250/- to the first party, the plaintiffs/Xavier and Varghese. Further it was agreed that the first and second floor
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after completion or within 3 months on completion of each floor the second party would pay Rs.1 lakh each to the first and third party.
5 . As per the registered agreement, the first party will construct the first and second floors of the building by spending their own money. They will sell the building and divide the sale proceeds in the following ratio. 1 st party-50%, 2 nd party-25% and 3 rd party-25%. The last date for completion of construction was fixed as 31.03.2006. It was further provided in the agreement that if the construction could not be completed in time, the plaintiffs will not have right to continue with the construction or demand any extension of time and it will be presumed that the plaintiffs have voluntarily withdrawn from the agreement. In the event of any breach of the agreement, the defendants will complete the construction and appropriate the same at their will and pleasure.
6 . In the agreements it is stated further that the plaintiffs need construct the second floor only after disposing the first floor or partitioning the same in between the parties. The plaintiffs have constructed the ground floor and first floor of the building within the stipulated time. Since the completed rooms
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could not be disposed of in time, it were partitioned between the parties as per partition deed No.4862/2005 dated 20.07.2005 of S.R.O, Kothamangalam. On the same day Xavier and Varghese executed a release deed No.4865/2005 releasing their right over the building to the plaintiffs. Thus the plaintiffs got half over the plaint schedule property.
7 . The first defendant has not so far paid the amount
of Rs.1 lakh which was to be paid within three months of completion of the first floor of the building. In spite of repeated demands the first defendant did not pay the amount and therefore the plaintiffs did not start further constructions in time. Now the defendants have taken a stand that since the plaintiffs could not complete the construction within 31.03.2006, they will not have any right to further construction and claim any proprietary right over the second floor. The defendants have no right to deny the undivided half right and title of the plaintiffs over the plaint schedule properties. The conditions in the sale deeds restricting the proprietary rights of the plaintiffs are null and void. The defendants are not entitled to proceed with the construction of the second floor
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of the building. The plaintiffs are entitled to get Rs.66,666/- as their share out of Rs.1 lakh to be paid by the first defendant as per the agreement.
8 . Therefore, it is prayed that the plaintiffs’ title on
the second floor of the building in the plaint schedule property be declared, plaintiffs may be allowed to realise Rs.66,666/- with 12% interest per annum from the defendants and charged on the plaint schedule property, the restrictions in sale deed Nos.6607/2000 and 6608/2000 of SRO, Kothamangalam restricting the plaintiffs’ right above the second floor of the building in the plaint schedule property be declared as null and void and the defendants be restrained from interfering with the plaintiffs’ right over the plaint schedule property.
9 . Thereafter the plaintiffs obtained the right of Xavier and Varghese as per release deed No.6540/2008 of SRO, Kothamangalam. Since the plaintiffs perfected title over the second floor of the building in the plaint schedule property, the same sought to be declared and also Rs.66,666/- along with 12% interest also was sought for.
R.S.A.No.730/2019 9
10. The 1 st defendant filed written statement mainly
contending that the right obtained by the plaintiffs over the schedule property as per assignment deed Nos.6607 and 6608 of the year 2000 of Kothamangalam S.R.O is not absolute. It is subject to certain restrictions and limitations. The date fixed for completion of the first floor was 31.03.2004 and the time stipulated for completion of second floor was 31.03.2005. However, a final cut-of date is fixed as 31.03.2006 for the construction of the second floor. Upper limit of 31.03.2006 will not be permitted to be extended. The conditions stipulated in the agreement are binding on the parties. The plaintiffs are estopped from accepting part of the agreement and rejecting the remaining part of the same. Payment of Rs.4,25,000/is subject to conditions which are not fully complied by the plaintiffs. The amounts are to be paid jointly to the plaintiffs and Xavier and Varghese, and not to the plaintiffs alone. The construction of the second floor is permitted only if the construction of the first floor is completed within the stipulated time. The plaintiffs failed to perform their part of the contract. The construction was completed only around June, 2005. As the room
R.S.A.No.730/2019 10
could not be sold out a partition deed No.4862/05 was executed on 20.07.2005.
11. At the time of partition, more area was allotted to
the plaintiffs and other two partners to cover the share of Rs.3,18,750/- as well as the share of Rs.1 lakh payable by the first defendant to them. Thus the amount to be paid to the plaintiffs and defendants 2 to 9 by the first defendant was adjusted when the partition was effected. There is implied admission on the part of the plaintiffs that Rs.3,18,750/- has been received by them. Along with that amount Rs.66,666/- was also adjusted. That the second floor need be constructed only after sale or partition of first floor is not a precondition for the time-limit fixed for completion of the building. There is no written demand made by the plaintiffs for the amount, from the date of partition deed till the filing of the suit. The stipulations in the agreement are binding on all parties. The plaintiffs did not have any further interest over the building or over the property as per the terms of the agreement and the sale deeds. The plaintiffs’ right over the property is restricted to the rights which they obtained as per partition deed. In both the agreement
R.S.A.No.730/2019 11
and the partition deeds the parties duly accepted the conditions in the sale deeds. The plaintiffs are estopped under Section 115 of the
Indian Evidence Act to claim that a part of the document is not binding on them. As per the terms and conditions contained in the agreement the plaintiffs have no right to claim any right over the second floor of the building. As per the agreement the second and third parties will have full right to make construction over the first floor of the building and deals with it as they deem fit, in case the first party fails to perform their part of the contract. The amounts due and payable are settled at the time of partition.
12. The first defendant is now carrying on the construction work of the second floor of the building. The first defendant obtained sanction for the construction from Kothamangalam Municipality. The construction of the second floor of the building in the western block is already completed and the same is sold away to third parties and the right to construct the second floor of the building at the southern side of the stair-case at the eastern block of the building is also sold away by the first defendant and the purchaser has started construction in that area.
R.S.A.No.730/2019 12
The reliefs claimed are not allowable. Hence it is requested to dismiss the suit with costs. The suit against the 2 nd and 6 th defendants was dismissed for default. Defendants 3 to 5 and 7 to 9 were set exparte. Additional defendants 10 to 13 were impleaded as per order dated 15.12.2009 in I.A.1734/2009 as subsequent purchasers of the property. Defendants 10 and 11 remained exparte.
13. Defendants 12 and 13 filed written statement and adopted the contentions raised by the 1 st defendant.
14. Trial court ventured the matter and recorded evidence. Exts.A1 to A11 are on the side of the plaintiffs and Exts.B1 to B4 are on the side of the defendants and Exts.C1 to C2 were marked as court exhibits.
15. On evaluation of evidence after hearing both sides,
the Suit was decreed partly as under:
“It is ordered and decreed that the first defendant do pay an amount of Rs.33,333/- with interest at the rate of 6% per annum from the date of institution of the suit (7-7-08) till realization, to the plaintiffs. The reliefs for declaration are declined. In the circumstances of the case, there shall be no order as to costs.”
16. The plaintiffs challenged the verdict of the trial
- court before the Sub Court, Muvattupuzha and on re appreciation of
R.S.A.No.730/2019 13
evidence and on hearing both sides the learned appellate Judge modified the decree as under:
“1. Appeal against decree and judgment in respect of relief for declaration is dismissed.
2 . The decree and judgment passed by the court below for realisation of the amount is modified as follows: The plaintiffs are allowed to realise a sum of Rs.66,666.66 from the first defendant with interest @ 6% per annum from the date of suit till realisation of the entire amount.
3 . The appellants are also entitled for costs.”
17. At the time of admission as on 18.07.2019, this
Court raised the following substantial questions of law for determination:
(i ) Did the courts below go wrong in
concluding the parties on merits without considering Exts.A1, A2 and A4 and the legal effect of those documents?
(ii) Was the appellate court right in finding
that the period of limitation to seek the declaration sought for
in the plaint would start to run from the date of execution of the title deeds of the plaintiffs?
18. While assailing the concurrent verdicts of the trial
court as well as the appellate court in the matter of non grant of
relief to declare the right of the plaintiffs over the second floor, the
R.S.A.No.730/2019 14
learned counsel for the plaintiffs zealously argued relying on the recitals in Exts.A1 and A2. It is also argued by the learned counsel for the plaintiffs that merely because the plaintiffs failed to construct the first floor of the building as per the terms of Exts.A1 to A4 and there is covenant in the agreements Exts.A3 and A4, fixing time for construction of the third floor, the right of the plaintiffs to construct the second floor fixing a time frame could not said to be ceased because the plaintiffs are the absolute title holders of 50% shares of the total extent of the plaint schedule property. The learned counsel read out the relevant portions of the agreements to substantiate his contentions.
19. Resisting this argument, the learned counsel for the 1 st defendant submitted that it was found by the first appellate court that the claim to declare the conditions in Exts.A1 and A2 as non-est was barred by limitation in tune with the finding of the trial court. Further he argued that as per the terms of Exts.A3 and A4 agreements, the plaintiffs relinquished their right to construct the second floor when they failed to construct the second floor on or before 30.03.2006, as agreed upon. Therefore, the verdict of the
R.S.A.No.730/2019 15
trial court, modified by the first appellate court is only to be confirmed.
20. In this matter, the second substantial question of
law raised is whether the appellate court is right in finding that the period of limitation to seek the declaration sought for by the plaintiffs would start to run from the date of execution of the title deeds of the plaintiffs? In fact, the conditions stipulated in Exts.A1
and A2 were known to the plaintiffs and therefore, the plaintiffs ought to have filed a Suit within 3 years from the date of execution of the documents Exts.A1 and A2 (the date on which the right to sue first accrued) since the relevant article governing declaratory relief sought for herein is Article 58 of the Limitation Act and the same provides that the period of limitation is 3 years from the right to sue first accrues. Therefore, the first appellate court rightly found that the declaration sought for in the Suit is barred by limitation. Second substantial question of law answered thus.
21. Coming to the first substantial question of law it is emphatically clear that as per Exts.A1 and A2, 50% undivided share in the plaint schedule property was purchased by the plaintiffs along
R.S.A.No.730/2019 16
with 2 others, viz. Xavier Paul @ Jomy and one Varghese. Subsequently, the plaintiffs obtained the right of Xavier Paul @ Jomy and one Varghese and now the plaintiffs have 50% undivided share in the plaint schedule property. As I have already pointed out, at the time of execution of Exts.A1 and A2 the said descriptions were incorporated in the title deed whereby the plaintiffs, Xavier Paul @ Jomy and one Varghese were given right to construct the second floor and the construction of the third floor onwards was entrusted to the 1 st defendant. Since the recitals in Exts.A1 and A2 in the above line is binding on the plaintiffs, the plaintiffs could not claim anything more than what they obtained as per Exts.A1 and A2. It is at this juncture, the learned counsel for the plaintiffs argued that since the plaintiffs are now having 50% undivided right of ownership in law in terms of Exts.A1 and A2, the plaintiffs have the right to construct the second floor as stated in Exts.A1 and A2 and the time fixed as per Exts.A3 and A4 agreements till 31.03.2006 would not take away the right of the plaintiffs to continue construction thereafter.
22. In this matter, as I have already pointed out, as per
R.S.A.No.730/2019 17
Exts.A3 and A4 agreement, the plaintiffs agreed to construct the second floor in tune with the terms of Exts.A1 and A2 on or before 31.03.2006 and it was also agreed by the plaintiffs that if the construction could not be made on or before 31.03.2006, their right to construct would be ceased. In fact, when the plaintiffs executed such an agreement and the plaintiffs failed to construct the second floor on or before 31.03.2006, they deemed to have relinquished their right for further construction though they have 50% undivided share on the land but not on the entire building. The trial court rightly quoted the legal maxim “quic quid plantatur solo solo cedit”, which means whatever is attached to soil belongs thereto and found that the said maxim is not followed in India and in India it is permissible to own land and the building situated in the same land separately.
23. Thus answering the first question of law it is held that the trial court as well as the appellate court did not go wrong in disallowing the prayer for declaration and thus on interpreting the stipulations in Exts.A1 to A4 rightly negatived the said contention even though the appellate court modified the amount entitled to by
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the plaintiffs, which is not under challenge. The upshot of the above
discussion is that the Second Appeal is meritless and the same is only to be dismissed.
Hence the Second Appeal stands dismissed accordingly.
Considering the nature of the contentions, both parties shall
suffer their respective costs.
All pending Interlocutory Applications stand dismissed.
Sd/-
(A.BADHARUDEEN, JUDGE)
rtr/
2 issues framed by the court
Whether the appellate court erred in concluding the parties on merits without considering specific exhibits.
Whether the claim for declaration of right over the second floor is barred by limitation as per Article 58 of the Limitation Act.
Varghese
Jacob
Mathew
Baby
P.M Anthony
Jose
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court