Kerala High Court
K.M.Cherian vs Ammini on 7 July, 2025
AS No.34 of 2003
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CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 7TH DAY OF JULY 2025 / 16TH ASHADHA, 1947
AS NO. 34 OF 2003
AGAINST THE JUDGMENT & DECREE DATED 16.11.2002 IN OS NO.596 OF 1999
OF I ADDITIONAL SUB COURT,ERNAKULAM
APPELLANTS/PLAINTIFFS:
1 K.M.CHERIAN, S/O. MATHU
AGED 83, KILITHATTIL, VADAKODU KARA,, THRIKKAKARA.(DIED)
2 MATHUKUTTY S/O. MATHU
AGED 81, KANINGAPADATH, KILITHATTIL,, VADAKODU KARA,
THRIKKAKARA.(DIED)
3 K.I.JOHN S/O. ITTIYAVIRHA LATE
AGED 60, KILITHATTIL, VADAKODU KARA,, THRIKKAKARA.(DIED)
4 REGI VARGHESE S/O. LATE VARGHESE
KANINGAPADATH, KILITHATTIL, ALAMBIL HOUSE,, KANGARAPPADY.
ADDL.A5 LILLY,
D/O.K.M.CHERIYAN, AGED 81, KAVUNKAMOOLA, KILITHATTIL,
VADAKODUKARA, KANGARAPPADY, KOCHI- 682021
ADDL.A6. ANNIE,
D/O.K.M.CHERIYAN, AGED 74, KAVUNKAMOOLA, KILITHATTIL,
VADAKODUKARA, KANGARAPPADY, KOCHI- 682021
( LRS OF THE DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDL.
A5 & A6 VIDE ORDER DATED 31/5/22 IN IA 5/22)
ADDL.A7. ROY,
S/O.MATHUKUTTY, AGED 64, KAVUNKAMOOLA, KILITHATTIL,
VADAKODUKARA, KANGARAPPADY, KOCHI- 682021
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ADDL.A8. SAJU,
S/O.MATHUKUTTY, AGED 55, KAVUNKAMOOLA, KILITHATTIL,
VADAKODUKARA, KANGARAPPADY, KOCHI- 682021
ADDL.A9. SHEELA,
D/O.MATHUKUTTY,AGED 68,KAVUNKAMOOLA, KILITHATTIL,
VADAKODUKARA, KANGARAPPADY, KOCHI- 682021 LRS OF THE
DECEASED 2ND APPELLANT ARE IMPLEADED AS ADD.A7 TO A9 VIDE
ORDER DATED 31/5/22 IN IA 1/22.
ADDL.A10 VALSA,
W/O.K.I.JOHN,AGED 75, KAVUNKAMOOLA, KILITHATTIL,
VADAKODUKARA, KANGARAPPADY, KOCHI- 682021
ADDL.A11 PREETHI,
D/O.K.I.JOHN,AGED 52,KAVUNKAMOOLA, KILITHATTIL,
VADAKODUKARA, KANGARAPPADY, KOCHI- 682021
ADDL.A12. RESMY,
D/O.K.I.JOHN,AGED 48,KAVUNKAMOOLA, KILITHATTIL,
VADAKODUKARA, KANGARAPPADY, KOCHI- 682021
ADDL.A13. SAJIN JOHN,
S/O.K.I.JOHN, AGED 54, KAVUNKAMOOLA,
KILITHATTIL,VADAKODUKARA, KANGARAPPADY, KOCHI- 682021 LRS OF
THE DECEASED 3RD APPELLANT ARE IMPLEADED AS A10 TO A13 VIDE
ORDER DATED 31/5/22 IN IA 3/22.
BY ADVS.
SHRI.N.RATHEESH
SRI.S.SREEKUMAR (SR.)
SMT.SUMA RATHEESH
SHRI.SHANKAR RETHEESH
RESPONDENTS/DEFENDANTS:
1 AMMINI,
DAUGHTER OF LATE PARASSERIL VARGHESE, AGED 65, RESIDING AT
MANEED KARA, MANEED VILLAGE, MUVATTUPUZHA TALUK.
2 SASEENDRAN S/O. NARAYANAN
AGED 40, RESIDING AT PALAI PUTHENPURAYIL,, VADAKODU KARA,
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THRIKKAKARA NORTH VILLAGE, KANGARAPPADY P.O.
3 MOLY W/O. SASEENDRAN,
AGED ABOUT 36, RESIDING AT PALAI PUTHENPURAYIL,,
VADAKODUKARA, THRIKKAKARA NORTH VILLAGE.
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SHRI.SUNU P.JOHN
SHRI.T.RAJASEKHARAN NAIR
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07.07.2025, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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CR
JUDGMENT
1. This Appeal Suit is filed by the plaintiffs 2 to 5 in O.S.No.596/1999 of the First Additional Sub Court, Ernakulam. During the pendency of the Appeal, the appellants 1 to 3 died and their legal heirs were impleaded in the Appeal as additional appellants 5 to 13. Additional appellants 5 & 6 are the legal heirs of the first appellant. Additional appellants 7 to 9 are the legal heirs of the second appellant. The additional appellants 10 to 13 are the legal heirs of the third appellant.
2. The suit was originally filed by four persons who are the children of four brothers. During the pendency of the suit, the first plaintiff AS No.34 of 2003 5 2025:KER:49425 died and the additional 5th plaintiff is impleaded as the legal heir of the first plaintiff.
3. The suit as amended is mainly for declaring that Exts.A3, A4 & A5 documents of the year 1993 of the SRO, Edappally, as null and void, to set aside the said documents, to pass a decree allowing the plaintiffs to recover the plaint schedule properties from the defendants 1 to 3 and to put the plaintiffs in possession of the plaint schedule properties. Ancillary reliefs are sought to pass a decree of permanent prohibitory injunction restraining the defendants 2 and 3 from digging, taking and selling out the soil from the plaint schedule properties and to enter into the plaint schedule properties and to pass a decree in favour of the plaintiffs for themselves and on behalf of other co-owners of the plaint schedule properties to recover a sum of Rs.25,000/- from the defendants and their properties along with interest @ 24% per annum thereon.
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4. The plaint A schedule property is having an extent of 1 Acre 2 cents of land situated in survey No.798/14/B & A2 of Thrikkakara North Village with all tress and improvements therein which is a part of Item No.2 having an extent of 1 acre 80 cents in Ext.A1 Settlement Deed of the year 1969 executed by late Sri. Joseph. The Plaint B schedule property is having an extent of 3 Acres 48 cents with all improvements therein situated in survey No.801/1B/5/5 of Thrikkakara North Village, which is described in Item No.12 in Ext.A1 Settlement Deed of the year 1969.
5. Admittedly, the plaint schedule properties originally belonged to Joseph, who was the brother of the father of the plaintiffs 1 to 4. The wife of Joseph is Annamma. They had no issues. The first defendant is the daughter of the deceased brother of Annamma and her sole legal heir. The defendants 2 & 3 are husband and wife. The first defendant sold the plaint A schedule property and AS No.34 of 2003 7 2025:KER:49425 39.66 Ares out of plaint B schedule property to the second defendant as per Ext.A5. The first defendant sold 50.59 Ares out of B schedule to the third defendant as per Ext.A3. The first defendant sold 50.59 Ares out of the plaint B schedule property to the second defendant as per Ext.A4. Thus, the entire plaint A & B schedule properties are in the possession of the defendants 2 and 3 as per Exts.A3, A4, & A5 Sale Deeds executed by the first defendant.
6. Pleadings would reveal that Joseph died on 17.06.1979 and Annamma died on 17.06.1981.
7. The plaint allegations are that after the death of Annamma, her exclusive right over item No.1 property in Ext.A1 Settlement Deed was devolved upon the first defendant as Annamma did not have any issues or siblings. It is alleged that the grandson of the brother of Annamma's husband was looking after the affairs of Annamma and taking advantage of this, he fabricated AS No.34 of 2003 8 2025:KER:49425 a Will and filed LAOP No.41/1982 which was converted as O.S.No.13/1983 and as per judgment dated 11.04.1990, the District Court, Ernakulam, dismissed O.S.No.13/1983 finding that the Will alleged to have been executed by Annamma is not genuine. During the pendency of the LAOP No.41/1982, three children of Mathew, brother of Joseph, filed O.S.No.113/1982 before the Sub Court, Ernakulam, for partition of the assets of late Joseph. The first plaintiff, the third defendant, the son of the second defendant, and the 10th defendant therein are the plaintiffs in the present suit. The Sub Court, Ernakulam, passed judgment dated 31.10.1987 and a preliminary decree, dividing the plaint schedule properties therein in 32 equal shares and allotting 1/32 share to the first plaintiff. The plaint schedule properties herein was item No.9 in the decree passed in O.S.No.113/1982 and after passing the preliminary decree on 31.10.1987, none of the parties has filed an application to pass AS No.34 of 2003 9 2025:KER:49425 a final decree. Hence, the first defendant has no right to sell the properties shown in the decree schedule in O.S.No.113/1982, which the court has already found partible. The plaintiffs and the defendants in O.S.No.113/1982 are also entitled to their respective shares and the act of the first defendant is illegal and without any authority whatsoever. The first defendant was the fourth defendant in O.S.No.113/1982.
8. The cause of action alleged in the suit is the excavation of soil from the plaint schedule properties by the defendants by colluding with each other. Thus, the plaint proceeds on the basis that both the plaint schedule properties are included in O.S.No.113/1982 and the same was ordered to be partitioned among the plaintiffs and the defendants therein including the 1st defendant herein and the right over the first defendant herein was not determined in O.S.No.113/1982 as she did not pay AS No.34 of 2003 10 2025:KER:49425 court fee for the same and nobody filed application for final decree. Ext.A2 is the decree in O.S.No.113/1982.
9. The first defendant filed written statement and the defendants 2 and 3 filed written statement and additional written statement.
10. The substantial contentions in the written statement of the first defendant are that the first defendant had assignable interest over the property covered by Exts.A3, A4 & A5. The assignees in the said documents were put in possession and enjoyment of the said properties, and hence, the relief of recovery of possession, injunction and recovery of money cannot be granted against the first defendant. The plaint A schedule property was not a subject matter of the decree in O.S.No.113/1982. The suit is hit by res judicata on account of the judgment and decree in O.S.No.113/1982. The suit is hopelessly barred by limitation. All the persons who were parties AS No.34 of 2003 11 2025:KER:49425 to O.S.No.113/1982 are not parties to the suit and hence the suit is bad for non-joinder of necessary parties.
11. The second and third defendants contended that the suit is barred by res judicata and limitation. Though the preliminary decree in O.S.No.113/1982 was not properly followed up, the shares were determined. The sale of the properties effected by the first defendant in favour of the second and third defendants are proper and valid. The first defendant had every right to sell the plaint schedule properties. The cause of action alleged is not correct. The plaintiffs have no right to get Exts.A3, A4 & A5 Sale Deeds set aside.
12. The Trial Court framed the following issues for determination:
1. Whether the suit is maintainable in law?
2. Whether the suit is bad for non-joinder of necessary parties? AS No.34 of 2003 12
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3. Whether the plaintiffs are entitled to get a declaration that Exts.A3, A4 & A5 are null and void, if so, whether those documents are liable to be set aside?
4. Whether the injunction prayed for is allowable?
5. Whether the plaintiffs are entitled to recover a sum of Rs.25,000/- from the defendants as alleged?
6. Reliefs and costs?
7. Whether the suit is barred by limitation?
13. On the side of the plaintiffs, the 5th plaintiff was examined as PW1 and Exts.A1 to A5 were marked in evidence. From the side of the defendants, the second defendant was examined as DW1.
14. The Trial Court found that the suit is maintainable and that the suit is not bad for non-joinder of necessary parties.
15. The Trial Court found that both plaint A & B schedule properties are the subject matter in Ext.A2 decree in O.S.No.113/1982; that Ext.A2 decree is valid and binding on the first defendant; AS No.34 of 2003 13
2025:KER:49425 that as per Ext.A2 decree, the first defendant is entitled to alienate the plaint schedule properties only to the extent of her 1/32 share and held that except to the extent of 1/32 share of the first defendant, first defendant had absolutely no manner of right to execute Exts.A3 to A5 in respect of the entire plaint B schedule property. The injunction sought for was denied by the Trial Court on the ground that the plaintiffs have remained idle and the suit is bad for acquiescence. The recovery of the amount of Rs.25,000/- towards the value of the soil alleged to have been excavated from the plaint A and B schedule properties was denied for want of any proof. Ultimately, the suit was dismissed holding that the suit is hopelessly barred by limitation in view of Article 59 of the Limitation Act, as the suit was filed beyond three years from the date of execution of Exts.A3 to A5.
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16. This Court by judgment dated 20.06.2022 disposed of this Appeal, remanding the matter back to the Trial Court. The defendants 2 and 3 approached the Hon'ble Supreme Court and as per Order dated 13.02.2024 the Hon'ble Supreme Court set aside the remand order passed by this Court and directed this Court to consider the matter on merits holding that it is well open to the High Court to consider the issues both on facts and law either by itself or at best call for such findings from the Trial Court. Thus, the matter again came up for hearing before this Court.
17. The appellants filed I.A. No.2/2025 producing the certified copy of the judgment dated 31.10.1987 of the Second Additional Sub Court, Ernakulam in O.S.Nos.113/1982 and 151/1984, to accept the same as additional documents under Order 4 1 Rule 27 of the Code of Civil Procedure. The respondents did not file any objection to I.A. No.2/2025. On going through the judgment in AS No.34 of 2003 15 2025:KER:49425 O.S.No.113/1982, I am of the view that the said document is a material document for pronouncing the judgment in this Appeal after considering the issues involved. The said document ought to have been produced before the Trial Court by either of the parties. Instead of the judgment in O.S.No.113/1982, the plaintiffs produced the decree in O.S.No.113/1982 and the same was marked in evidence as Ext.A2. Hence, I allowed I.A. No.2/2025 accepting the certified copy of the judgment dated 31.10.1987 in O.S.Nos.113/1982 and 151/1984 of the Second Additional Sub Court, Ernakulam, in evidence and marking the same as Ext.A6.
18. Ext.A6 would reveal that O.S.No.151/1984 was a suit for injunction filed by the 1st plaintiff in O.S.No.113/1982, which was tried and disposed of along with O.S.No.113/1982. In both the suits, the 1st defendant herein was the 4th defendant. She AS No.34 of 2003 16 2025:KER:49425 remained ex parte in O.S.No.113/1982 and appeared and filed written statement in O.S.No.151/1984.
19. The following points arise for determination in this Appeal in the light of the arguments advanced by the counsel on either side:
1. Whether the suit is barred by limitation?
2. Whether the plaintiffs are entitled to maintain the prayer for recovery of possession even without setting aside Exts.A3, A4 & A5?
3. Whether the plaintiffs are entitled to get recovery of possession of plaint A schedule property?
4. Whether the plaintiffs are entitled to recover possession of plaint B schedule property?
5. Whether the plaintiffs are entitled to get the prohibitory injunction sought for?AS No.34 of 2003
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6. Whether the plaintiffs are entitled to recover the sum of Rs.25,000/- from the defendants with interest?
20. I heard the learned Senior Counsel, Sri. S. Sreekumar for the appellants, instructed by Adv. Sri. N. Retheesh and the learned Senior Counsel for the respondents 2 & 3, Sri. T. Krishnanunni, instructed by Adv. Sri. T. Rajasekharan Nair. Point No.1:
21. The prayer in the suit is for declaring Exts.A3, A4 & A5 as null and void, to set aside the said documents and allowing recovery of the plaint schedule properties from the defendants 1 to 3. Exts.A3, A4 & A5 documents are of the year 1993. The suit was filed in the year 1999. Going by Article 58 of the Limitation Act, the suit for declaration has to be filed within three years. Going by Article 59 of the Limitation Act, the suit for setting aside the documents has to be filed within three years from the date of first knowledge of the said documents by the plaintiff. The AS No.34 of 2003 18 2025:KER:49425 plaintiffs did not have a case that they came to know about the execution of Exts.A3 to A5 only later. Hence, the prayer for declaring Exts.A3 to A5 as null and void and to set aside the same are clearly barred by limitation. This point is answered in favour of the respondents.
Point No.2:
22. Next question is whether the plaintiffs can maintain the prayer for recovery of possession without seeking declaration of those documents as null and void and without setting aside those documents. The learned Senior Counsel for the appellants cited the decisions of the Hon'ble Supreme Court in Dhurandhar Prasad Singh v. Jai Prakash University and Others [(2001) 6 SCC 534] and in Prem Singh & Others v. Birbal & Others [(2006) 5 SCC 353] to substantiate the point that when the document is null and void, no declaration is necessary and that declaration as to the nullity of the document is required only if AS No.34 of 2003 19 2025:KER:49425 the document is a voidable document. In Dhurandhar Prasad Singh (supra), the Hon'ble Supreme Court considered the difference between void and voidable transactions and laid down the following principle in Paragraph No.22.
" 22. Thus the expressions "void and voidable" have been the subject- matter of consideration on innumerable occasions by courts. The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. AS No.34 of 2003 20
2025:KER:49425 Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable."
23. The Hon'ble Supreme Court followed the decision of the Court of Appeal in R. v. Paddington Valuation Officer, ex parte Peachey Property Corporation Ltd. [(1965) 2 All ER 836] in which it is held that AS No.34 of 2003 21 2025:KER:49425 when the invalidity is so grave that the list is a nullity, there is no need for an order to quash it and it is automatically null and void without more ado. In Prem Singh (supra), the Hon'ble Supreme Court specifically held that when a document is valid, no question arises of its cancellation and that when a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of law as it would be a nullity. It is also held that Article 59 would not apply to instruments which are presumptively invalid and Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. The learned Senior Counsel cited the decision of this Court in Gouri Amma Vaidehi Amma v. Parameswaran Pillai Madhavan Pillai [1956 KLT 431] to substantiate the point that where the transaction is sham and nominal, there is no need to set aside and Article 91 of the Limitation Act, 1908 has AS No.34 of 2003 22 2025:KER:49425 no application to such cases and Article 91 has no application where the instrument sought to be cancelled is void and inoperative as the Article presupposes that a suit is necessary under law to set aside the instrument.
24. The contention of the learned Senior Counsel for the appellant is that Exts.A3 to A5 documents are null and void as the first defendant, who was the assignor, did not have any right over the plaint schedule properties to assign to the defendants 2 and 3 therein. On the other hand, the learned Senior Counsel for the contesting respondents contended that at any rate, the first defendant was having fractional right in the plaint schedule properties to convey to the defendants 2 and 3. Hence, the said documents could not be said as null and void. When the said document is valid and legal, the plaintiffs cannot maintain a suit for recovery of possession without declaring the same as null and void or without setting aside the same through a court of AS No.34 of 2003 23 2025:KER:49425 law. Since the challenge against the said documents is clearly time-barred, the plaintiff cannot seek recovery of possession of the plaint schedule properties.
25. In view of the aforesaid decisions cited by the learned counsel for the appellants, the law on the point is very clear. If a document is null and void, there is no need to declare the same as null and void or to set aside the same. It is non-est. The plaintiff in such a case can seek recovery of possession of the properties covered by a null and void document even without declaring such document as null and void or without setting aside the said document. Hence, I hold that the plaintiffs can maintain the suit for recovery of possession of the plaint schedule properties if it is proved by the plaintiffs that Exts.A3 to A5 documents are null and void. It is pertinent to note that there is no limitation for recovery of possession under Article 65 if the possession of the defendants has not become adverse. AS No.34 of 2003 24
2025:KER:49425 The defendants have not raised the plea of adverse possession. Hence, I find that the prayer for recovery of possession in the suit is not barred by limitation, if the plaintiffs are able to prove that Exts.A3, A4 and A5 documents are null and void. This point is answered in favour of the appellants.
Point No.3:
26. Plaint A schedule property is 1 Acre 2 cents of land, which is a part of Item No.2 described in Ext.A1 document. The averments in the plaint would indicate that the plaintiffs have been under the impression that the plaint A schedule was a subject matter of O.S.No.113/1982 and that the first defendant also derived a share in the plaint A schedule as per Ext.A2 decree. The Trial Court was also under the mistaken impression that plaint A schedule property was the subject matter in Ext.A2 decree. On perusal of Ext.A2 decree, it is clear that the plaint A schedule property was not the subject matter in Ext.A2 decree. AS No.34 of 2003 25
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27. The Trial Court found that in view of Ext.A2 decree in which the first defendant herein is a party as defendant No.4 therein, the first defendant is also bound by Ext.A2 decree by which 1/32 share was found in favour of the first defendant. Accordingly, the Trial Court held that, except for the extent of 1/32 share of the first defendant, the first defendant had absolutely no manner of right to execute Exts.A3 to A5 with respect to the plaint schedule properties. On production of Ext.A6 as additional evidence in this Appeal, the entire scenario has been changed. Ext.A6 judgment in O.S.No.113/1982 would reveal that no share was allotted to the first defendant as per Ext.A6 judgment and Ext.A2 decree in O.S.No.113/1982. So the finding of the Trial Court to the effect that the first defendant is entitled to 1/32 share in the plaint A schedule property on the basis of Ext.A2 decree is clearly unsustainable. Then the question is whether the first defendant had any right over the plaint A schedule property as AS No.34 of 2003 26 2025:KER:49425 the sole legal heir of Annamma. First defendant will get the right over the plaint A schedule property only if Annamma had derived any right over item No.2 as per Ext.A1 Settlement Deed. Admittedly, the property originally belonged to Joseph. Joseph executed Ext.A1 document with respect to his properties. Annamma would derive the right over item No.2 therein only if the same is given to her as per Ext.A1. The recitals in Ext.A1 would clearly show that Annamma had only life interest in item No.2 therein. Of course, Annamma is given the right to settle item No.2 after the death of Joseph in favour of any person who looks after her. The defendants have not disputed the averment in the plaint that LAOP No.41/1982, which was converted as O.S.No.13/1983, was dismissed by the District Court finding that the Will alleged to have been executed by Annamma is not genuine. The defendants have no case that Annamma had executed any document with respect to item No.2 in Ext.A1. AS No.34 of 2003 27
2025:KER:49425 There is specific recital in Ext.A1 that if Annamma survives Joseph, Annamma will not have the right to sell item No.2 property to strangers. Hence, Annamma did not derive any right over item No.2 as per Ext.A1. Item No.2 property in Ext.A1 belonged to Joseph on his death. Annamma, being the widow of Joseph, derived 1/2 share in the said property on the death of Joseph in view of Section 33 of the Indian Succession Act, 1925, since Joseph did not have any lineal descendants. As the sole legal heir of Annamma, the first defendant derived such 1/2 share of Annamma on her death. Hence, Ext.A5 document so far it relates to such 1/2 right is valid. Thus, on the basis of Ext.A5 document, the second defendant derived 1/2 right over the plaint A schedule property. Ext.A5 document is null and void with respect to the remaining 1/2 right over the plaint A schedule property. Since the second defendant became the co-owner of the plaint A schedule property as per Ext.A5, the prayer for AS No.34 of 2003 28 2025:KER:49425 recovery of the plaint A schedule property from the second defendant is not maintainable. Accordingly, this point is answered in favour of the respondents.
Point No.4:
28. Plaint B schedule property is 3.48 Acres, which is item No.12 in the Ext.A1 document. The said property is item No.9 in Ext.A2 decree. The first defendant was a party to the Ext.A2 decree as defendant No.4 therein. She is bound by Ext.A6 judgment and Ext.A2 decree. Ext.A6 would reveal that the first defendant did not claim any right over plaint B schedule property as she remained ex parte in O.S.No.113/1982 and she specifically contended in the written statement in O.S.No.151/1984, which was jointly tried with O.S.No.113/1982, that the said property is available for partition. Plaint B schedule property was partitioned in Ext.A6 judgment and Ext.A2 decree and no share was allotted to the first defendant. Since Ext.A6 judgment and AS No.34 of 2003 29 2025:KER:49425 Ext.A2 decree are binding on the first defendant, the first defendant was not having any right over the plaint B schedule to assign in favour of the defendants 2 and 3 as per Exts.A3 to A5 documents. Hence, Exts.A3 to A5 document so far it relates to the plaint B schedule property is null and void and the defendants 2 and 3 did not derive any right over the plaint B schedule property as per Exts.A3 to A5 documents. Hence, the plaintiffs, being the co-owners of the plaint B schedule property, are entitled to recover the same from the defendants on the strength of their title along with other co-owners. This point is answered in favour of the appellants.
Point No.5:
29. In view of the findings in Point No.4, the plaintiffs are the co-
owners of the plaint A schedule property with the defendants 2 and 3. The defendants have no right over plaint B schedule property. The plaint A and B schedule properties are in the AS No.34 of 2003 30 2025:KER:49425 possession of the defendants 2 and 3. The plaintiffs have every right to seek injunction against the defendants 2 and 3 from committing waste in the plaint A and B schedule properties. Since the defendants 2 and 3 are in possession of plaint A and B schedule properties, they cannot be injuncted from entering into the same. I hold that the plaintiffs are entitled to get permanent prohibitory injunction restraining the defendants 2 and 3 from digging, taking, or selling out soil from the plaint schedule properties.
Point No.6:
30. The prayer for recovery of Rs.25,000/- towards the value of soil alleged to have been removed from the plaint schedule properties was dismissed by the Trial Court for want of proof. The appellants could not point out any proof to substantiate the said claim in this appeal either. Hence, the Trial Court was right in rejecting the said claim.
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31. In view of the aforesaid findings in Points Nos. 1 to 6, this Appeal is allowed in part without costs as follows.
1. allowing the plaintiffs to recover possession of the plaint B schedule property from the defendants 2 and 3.
2. passing a permanent prohibitory injunction restraining the defendants 2 and 3 from digging, taking, or selling out soil from the plaint schedule properties.
Sd/-
M.A.ABDUL HAKHIM JUDGE Jma/shg AS No.34 of 2003 32 2025:KER:49425 APPENDIX OF AS 34/2003 PETITIONER EXHIBITS Exhibit A6 THE CERTIFIED COPY OF THE JUDGEMENT DATED 31.10.1987 IN O.S.NO.113 OF 1982 OF HON'BLE II ADDITIONAL SUB COURT, ERNAKULAM