Kerala High Court
Thilakan vs Ponnamma on 10 October, 2024
2024:KER:75496
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
RSA NO. 461 OF 2024
AGAINST THE JUDGMENT & DECREE DATED 11.04.2017 IN AS NO.62 OF
2011 OF DISTRICT COURT, ALAPPUZHA ARISING OUT OF THE JUDGMENT &
DECREE DATED 30.11.2010 IN OS NO.429 OF 2009 OF PRINCIPAL MUNSIFF,
ALAPPUZHA
APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 2:
1 THILAKAN
AGED 61 YEARS
SON OF KRISHNAN, KOLLAMVELI, AYYAMKULANGARA, ARYAD
NORTH P.O., NORTH ARYAD VILLAGE, KOMALAPURAM, ALAPPUZHA
688 542.
2 GIRIJA
AGED 51 YEARS
WIFE OF THILAKAN, KOLLAMVELI, AYYAMKULANGARA, ARYAD
NORTH P.O., NORTH ARYAD VILLAGE, KOMALAPURAM, ALAPPUZHA
688 542
BY ADV R.AZAD BABU
RESPONDENTS-RESPONDENTS 2 TO 4 & LRS OF ORIGINAL PLAINTIFF:
1 PONNAMMA
AGED 59 YEARS
W/O.LATE ANIRUDHAN, VELIYIL VEEDU, (VADAKKE VELI),
THAMPAKACHUVADU, MANNANCHERY P.O., ALAPPUZHA 688 538
REPRESENTED BY HER POWER OF ATTORNEY HOLDER SALIM, 61
YEARS, S/O.DAMODARAN, THOTTAKKATTU HOUSE, AVALOOKKUNNU
P.O., ALAPPUZHA 688 006.
RSA NO. 461 OF 2024 2
2024:KER:75496
2 AJESH,
AGED 36 YEARS
SON OF ANIRUDHAN & PONNAMMA, OF -DO-
3 AJANTHA
AGED 34 YEARS
DAUGHTER OF ANIRUDHAN & PONNAMMA, OF -DO-
BY ADVS.
SHRI. B.PRAMOD R1 TO R3
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
10.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO. 461 OF 2024 3
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This the 10 th day of October, 2024
JUDGMENT
1. The defendants are the appellants. The suit was filed for
declaration of that Exts.A4 and A5 documents as null and void and
not binding on the plaint schedule property and the plaintiff and for
consequential injunction. The plaint schedule property is 10.5
cents of land in old Survey No.28/9A of Aryad North village.
2. The plaint averments are that the plaint schedule property
belonged to the plaintiff as per Ext.A3 Sale Deed executed by the
sister of the plaintiff. The sister of the plaintiff derived the property
as per Ext.A2 executed by the mother of the 1st defendant
Kunjamma. The plaintiff noticed that an error had occurred in the
resurvey proceedings and the property is included in the
Thandapper Account of Kunjamma, who is the vendor in Ext.A2.
The plaintiff preferred complaints before the Resurvey Authorities
and the plaintiff came to know that the officers are refusing to
correct the error on account of the influence exerted by the 1 st
defendant. On enquiry, the plaintiff came to know that the 1st
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defendant, with his brother, managed to create an Ext.A4 Release
Deed pertaining to the plaint schedule property. The property was
released to the 1st defendant as if the 1st defendant and the brother
are the legal heirs of late Kunjamma, misusing the error in
resurvey proceedings. Thereafter, the 1st defendant executed
Ext.A5 Release Deed in favour of the 2 nd defendant who is the wife
of the 1st defendant. Hence, the suit was filed with the aforesaid
prayers.
3. The defendants filed Written Statement opposing the suit prayers
contending inter alia that, the plaint schedule property originally
belonged to the 1st defendant's mother and after her death, the
plaint schedule property devolved on the 1st defendant and his
bother as her legal heirs. The brother of the 1 st defendant released
his right in the property in favour of the 1 st defendant and thereafter
the 1st defendant executed the sale deed with respect to the
property in favour of his wife. When the plaintiff raised untenable
contentions over the property, the 1 st defendant filed O.S.
No.770/2008 against him, claiming injunction against the plaintiff,
and the present suit was filed by way of retaliation.
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4. The Trial Court decreed the suit as prayed for. Though the
defendants filed Appeal before the First Appellate Court, and the
same was dismissed, confirming the judgment and decree of the
Trial Court.
5. I heard the learned Counsel for the appellants, Shri. R.Azad Babu
and the learned Counsel for the respondents, Sri. B.Pramod.
6. The learned counsel for the appellants submitted that the plaintiff
ought to have filed a suit for declaration of title since the title of the
plaintiff is seriously disputed by the defendants. The Trial Court
ought not to have granted an injunction since the plaintiff has not
proved possession over the plaint schedule property. There is no
reliable evidence from the part of the plaintiff as the plaintiff did not
enter into the box and only his Power of Attorney Holder was
examined as PW1.
7. On the other hand, the learned Counsel for the respondents who
are the legal heirs of the plaintiff submitted that there is no reason
to interfere with the impugned judgments and the decrees. The
Trial Court as well as the First Appellate Court arrived at correct
conclusion as per the impugned judgments. It is specifically found
that, the mother of the 1 st defendant transferred the property to the
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st
plaintiff as per Ext. A2 document in which the 1 defendant is an
attesting witnesses.
8. I have considered the rival contentions. Here is the case in which
the plaintiff is claiming title over the plaint schedule property
through Ext. A3 document executed by the mother of the 1 st
defendant in favour of the sister of the plaintiff. The 1 st defendant
is a witness to the said document. Even though the said document
was denied by the defendants being registered document, the
Trial Court as well as the First Appellate Court found that the said
document was executed by Kunjamma, the mother of the 1 st
defendant and the same was attested by the 1st defendant. The
subsequent conduct of the 1st defendant also would show that he
was taking undue advantage of the mistake in mutation in the
name of Kunjamma in the resurvey proceedings. The 1 st
defendant claimed that he derived exclusive title over the plaint
schedule property on the death of his mother, Kunjamma, since his
brother executed Ext. A4 release deed in favour of the 1 st
defendant. As DW1, the 1st defendant admitted that apart from him
and his brother he has three sisters as legal heirs of mother
Kunjamma. So, if the property really belonged to Kunjamma at the
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st
time of her death, the 1 defendant would have obtained Release
Deed from all the legal heirs. After the Ext.A4 document, within
one month, the 1st defendant executed the Ext.A5 document in
favour of his wife, the 2 nd defendant. He has not stated any reason
for transferring the property in favour of his wife. Hence, the
contention of the 1st defendant that the property belonged to
Kunjamma, pleading ignorance of Ext. A2 document is
unsustainable. Since, the mother of the 1st defendant executed
Ext. A2 document and the 1st defendant is a witness in the said
document, there could not be any serious dispute as to the title
over the plaint schedule property. There is no cloud on the title
over the plaint schedule property warranting declaration of title.
The title of the plaintiff is clearly proved by Ext.A2 and Ext.A3. I am
of the view that the plaintiff need not seek a declaration of title over
the plaint schedule property. In Ext. A3, it is specifically stated that
the possession of the property is given to the plaintiff. On going
through the Written Statement of the 1 st defendant it is seen that
the defendant plainly denied the possession of the plaintiff and
contended that he is in possession of the property. He has no
case that in spite of the execution of Ext.A2, the possession of the
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property continued with him or that the possession came into his
hands after execution of Ext.A2. The Trial Court, as well as the
First Appellate Court, entered a factual finding that the plaintiff is in
possession of the plaint schedule property. I do not find any
ground or reason to interfere with the impugned judgments and
decrees. Accordingly, this Regular Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
mus
