Kerala High Court
Shyamala Devi (Died) vs Karthiyaniamma (Died) on 2 June, 2025
2025:KER:38577
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 2ND DAY OF JUNE 2025 / 12TH JYAISHTA, 1947
RSA NO. 262 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 12.12.2019 IN
AS NO.48 OF 2016 OF ADDITIONAL DISTRICT SESSIONS COURT -
IV, PATHANAMTHITTA ARISING OUT OF THE JUDGMENT AND DECREE
DATED 29.02.2016 IN OS NO.50 OF 2012 OF MUNSIFF COURT,
RANNI
APPELLANTS/APPELLANTS/PLAINTIFF:
1 SHYAMALA DEVI (DIED)
AGED 65 YEARS
D/O. SARADHA, THUNDIYIL HOUSE, PADAYANIPPARA,
CHITTAR VILLAGE, PIN - 689663
2 UTHAMAN T.N.,
AGED 82 YEARS
S/O. NARAYANAN, THUNDIYIL HOUSE, PADAYANIPPARA,
CHITTAR VILLAGE, KONNI TALUK, PIN - 689663
3 MANJU RANI U.S.,
AGED 46 YEARS
D/O UTHAMAN, EDATHARA VEEDU, CHELIKUZHI,
PATTAZHI VADAKKEKARA MURI/VILLAGE PATHANAPURAM
TALUK, PIN - 689695
4 RENJU U.S.,
AGED 45 YEARS
S/O UTHAMAN, THUNDIYIL HOUSE, PADAYANIPPARA,
CHITTAR VILLAGE, PIN - 689663
BY ADV SRI.GENS GEORGE ELAVINAMANNIL
RSA No.262/2024
2
2025:KER:38577
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 KARTHIYANIAMMA (DIED)
AGED 92 YEARS
W/O KUNJUPILLAI, AGED 92 YEARS KUTTIYIL HOUSE,
PADAYANIPPARA, CHITTAR VILLAGE,, PIN - 689663
2 ANANDARAJAN,
S/O KUNJUPILLAI, AGED 58 YEARS KUTTIYIL HOUSE,
PADAYANIPPARA, CHITTAR SEETHATHODU VILLAGE,, PIN
- 689663
3 VIKRAMA RAJAN,
S/O KUNJUPILLAI, AGED 55 YEARS KUTTIYIL HOUSE,
PADAYANIPPARA, CHITTAR SEETHATHODU VILLAGE. NOW
RESIDING AT JAGADAMMA, PULLOLIL HOUSE
CHETTIMUKKU, ANGADI MURI, ANGADI VILLAGE, RANNI,,
PIN - 689674
4 RETHAMMA,
D/O KUNJUPILLAI, AGED 73 YEARS KUTTIYIL HOUSE,
PADAYANIPPARA, CHITTAR SEETHATHODU VILLAGE,, PIN
- 689667
5 SANTHAMMA,
D/O KUNJUPILLAI, AGED 70 YEARS KUTTIYIL HOUSE,
PADAYANIPPARA, CHITTAR SEETHATHODU VILLAGE NOW
RESIDING AT KUTTIKATTIL, OONNUKALLU CHENNEERKARA
VILLAGE, KOZHENCHERRY TALUK,, PIN - 689647
6 JANAMMA
D/O KUNJUPILLAI, AGED 66 YEARS KUTTIYIL HOUSE,
PADAYANIPPARA, CHITTAR SEETHATHODU VILLAGE NOW
RESIDING AT NIRAVUMPURATHU HOUSE MEZHUVELI,
MEZHUVELI VILLAGE,, PIN - 689507
7 VIJAYAMMA
D/O KUNJUPILLAI, AGED 58 YEARS KUTTIYIL HOUSE,
PADAYANIPPARA, CHITTAR SEETHATHODU VILLAGE NOW
RESIDING AT MOHANAVILASAM MEZHUVELI, MEZHUVELI
VILLAGE,, PIN - 689507
RSA No.262/2024
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2025:KER:38577
8 SUBHADRAMMA
D/O KUNJUPILLAI, AGED 53 YEARS KUTTIYIL HOUSE,
PADAYANIPPARA, CHITTAR SEETHATHODU VILLAGE NOW
RESIDING AT PORIYODIYIL MALLASSERY, PRAMADOM
VILLAGE, PIN - 689646
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
02.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RSA No.262/2024
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2025:KER:38577
EASWARAN S., J.
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R.S.A No.262 of 2024
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Dated this the 2nd day of June, 2025
JUDGMENT
The plaintiff in O.S.No.50/2012 on the file of the Munsiff's Court, Ranny and the appellants in A.S.No.48/2016 on the file of the Addl. District Court-IV, Pathanamthitta, are the appellants herein. The suit is for specific performance of an agreement executed on 09.10.1980 between the predecessor-in-interest of the defendants and the late 1 st appellant/plaintiff. The plaintiff had also sought for decree restraining the defendants from trespassing into the plaint schedule property and disturbing the possession of the plaintiff.
2. As per the plaint averments, agreement of sale was executed between the plaintiff and one Kunju Pillai. The Kunju Pillai died in the year 1991 and thereafter, the legal heirs were not willing to execute the sale deed. The defendants 1 to 3 informed the plaintiff that though they RSA No.262/2024 5 2025:KER:38577 were residing in the plaint schedule property, the title is not in the name of Kunju Pillai and further informed that 1 acre land was allotted in the name of Annamma, wife of Mathai and there is 1 acre at Karikulam in Pazhavangadi Village, which was allotted and assigned in the name of Kunju Pillai, but which was given in the possession and enjoyment of Annamma as a mutual exchange. The plaintiff was thereafter informed that both parties have decided to execute mutual exchange deed with respect of the two properties and thereafter, they had agreed to execute the sale deed in favour of the plaintiff. The plaintiff contended that on believing the words of defendants, she waited and thereafter, the failure on the part of the defendants to execute the sale deed, necessitated in filing of the suit.
3. The defendants entered appearance and contested the suit contending that suit was barred by limitation. It was further contended that deceased Kunju Pillai had no title over the property at the time of execution of agreement of sale and therefore, the suit for specific performance RSA No.262/2024 6 2025:KER:38577 cannot be maintained. On behalf of the plaintiff, Exts.A1 to A5 documents were marked. No oral or documentary evidence were adduced on behalf of the defendants. The Trial Court, on consideration of the pleadings and material evidence on record, framed the following issues:
"1. Whether the suit is barred by limitation?
2. Whether the deceased Kunjupillai executed an agreement for sale on 9/10/1980 in favour of plaintiff as claimed?
3.Whether the plaintiff is entitled to get a direction to execute sale deed as prayed for?
4. Whether plaintiff is in possession of plaint schedule property? if so whether she is entitled to get a decree of permanent prohibitory injunction as prayed for?
5. Reliefs and costs?"
4. On a consideration of the materials, the Trial Court found that at the time of execution of Ext.A1, deceased Kunju Pillai had no title over the property. It was further found that the plaintiff could not establish his readiness and willingness to execute the sale deed. As regards the title RSA No.262/2024 7 2025:KER:38577 and possession, it was found that the said Annamma was in possession of the plaint schedule property. Accordingly, the suit was dismissed, against which the plaintiff approached the District Court, filed an appeal numbered as A.S.No.48/2016, which was also dismissed by judgment and decree dated 12.12.2019. It is against the dismissal of the said appeal, the present appeal is preferred. By order, dated 13.11.2024, the delay in preferring the appeal was condoned by this Court and accordingly, the matter was listed for admission.
5. Heard, Adv.Gens George Elavinamannil - learned counsel appearing on behalf of the appellant.
6. The learned counsel appearing for the appellants would vehemently point out that by referring the O.S.No.227/2006 filed by the defendants herein, wherein it is clearly admitted that 10 cents was earlier given to one Uthaman. Thus according to the appellants, there is a clear admission as regards the plaintiff being put in possession of the plaint schedule property. It is further pointed out that RSA No.262/2024 8 2025:KER:38577 even assuming that the plaintiff's relief for specific performance is declined, the plaintiffs are entitled for the alternate relief of prohibitory injunction restraining the defendants from trespassing into the plaint schedule property and preventing the defendants from enjoying the plaint scheduled property.
6. I have considered the submissions of the learned counsel for the appellants raised across the Bar and have perused the judgments of both the Trial Court as well as the First Appellate Court.
7. On a consideration of the submissions raised on behalf of the appellants, this Court finds that both the Trial Court as well as the First Appellate Court has concurrently found that the plaintiff failed to prove that she was put in possession of the plaint schedule property. No doubt, a reading of the plaint in O.S.No.227/2006 will reveal that there is a candid admission as regards the possession of the 10 cents of land with one Uthaman. However, it is pertinent to note that the said suit was filed in the year 2006, where RSA No.262/2024 9 2025:KER:38577 as the present suit was filed in the year 2012. What transpired between the period of 2006 and 2012 is not evident. At any rate, the plaintiffs failed to take out an Advocate Commissioner to prove that they were in possession of the property at the time of institution of suit.
8. Still further, as regards the claim for specific performance, both Courts have found that as on the date of execution of the agreement, the executant i.e. late Kunju Pillai had no title over the property and therefore, Ext.A1 became unenforceable under law. The concurrent findings of facts and law as found by the Trial Court and the First Appellate Court does not appear to be vitiated by any jurisdictional error or infirmity. The discussion of evidence and also the point of law by both the Trial court and the First Appellate Court shows that the law as regards the enforcement of agreement of sale, which has been executed by a person who does not have right, title and interest over the property, has been rightly appreciated by the courts below. Hence, this Court is of the considered view that no RSA No.262/2024 10 2025:KER:38577 substantial question of law arises for consideration in this appeal.
Accordingly, the appeal fails and the same is dismissed.
Sd/-
EASWARAN S. JUDGE ACR RSA No.262/2024 11 2025:KER:38577 APPENDIX OF RSA 262/2024 PETITIONER EXHIBITS Receipt Receipt dated 22.11.2024 for payment of Rs.2,500/- to KELSA