Sudhakaran vs Sreekumar ,(Died) (Legal Heirs ...
2025 Latest Caselaw 4208 Ker

Kerala High Court

Sudhakaran vs Sreekumar ,(Died) (Legal Heirs ... on 18 February, 2025

RSA No.309/2011


                                          1
                                                              2025:KER:13174
                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                  THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM

           TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946

                              RSA NO. 309 OF 2011

          AGAINST THE JUDGMENT &DECREE DATED 20.01.2010 IN AS NO.39 OF 2005

OF   PRINCIPAL SUB COURT, THIRUVANANTHAPURAM ARISING OUT OF THE JUDGMENT &

DECREE DATED 21.12.2004 IN OS NO.1539 OF 2002 OF II ADDITIONAL MUNSIFF

COURT, THIRUVANANTHAPURAM


APPELLANTS/APPELLANTS/DEFENDANTS 1 TO 3:

      1        SUDHAKARAN
               S/O. KRISHNAN,KADAKKAL VILAKATH VEEDU, ANAYARA,
               THIRUVANANTHAPURAM.

      2        RAMACHANDRAN
               PANAVILAKOM KAVIL VEEDU,ANAYARA, THIRUVANANTHAPURAM

      3        SIVADASAN @ PATTATHIL SIVAN
               S/O.PONNAN, PATTATHIL VEEDU,, ANAYARA, THIRUVANANTHAPURAM


               BY ADVS.
               SRI.T.KRISHNANUNNI (SR.)
               SRI.T.RAJASEKHARAN NAIR




RESPONDENTS/PLAINTIFFS 1,2 AND ADDITIONAL DEFENDANTS:

      1        SREEKUMAR ,(DIED) (LEGAL HEIRS IMPLEADED)
               S/O.INDRAN,TC.76/269,PULICKAL VEEDU, KALLUMOODU, ANAYARA,,
               THIRUVANANTHAPURAM - 695 029.

      2        PREMALATHA W/O.SREEKUMAR T.C. 76/269
               PULICKAL VEEDU, KALLUMOODU, ANAYARA,, THIRUVANANTHAPURAM -
               695 029.
 RSA No.309/2011


                                     2
                                                          2025:KER:13174

     3       KUMARI PRASANNA W/O.LATE SADANANDAN
             KADAKKAVILAKATHU VEEDU, ANAYARA,,
             THIRUVANANTHAPURAM - 695 029.

     4       SHINE @ KUTTAN S/O.LATE SADANANDAN
             KADAKKAVILAKATHU VEEDU, ANAYARA,,
             THIRUVANANTHAPURAM - 695 029.

     5       SHINA D/O.KUMARI PRASANNA
             KADAKKAVILAKATHU VEEDU, ANAYARA,,
             THIRUVANANTHAPURAM - 695 029.

     6       SHAJI S/O.LATE SADANANDAN
             KADAKKAVILAKATHU VEEDU, ANAYARA,,
             THIRUVANANTHAPURAM - 695 029.

     7       KISHOR,
             S/O.SREEKUMAR,TC.76/269,PULICKAL VEEDU, KALLUMOODU,
             ANAYARA,, THIRUVANANTHAPURAM

     8       KIRAN,
             S/O.SREEKUMAR,TC.76/269,PULICKAL VEEDU, KALLUMOODU,
             ANAYARA,, THIRUVANANTHAPURAM (LEGAL HEIRS OF DECEASED FIRST
             RESPONDENT AS ADDL.RESPONDENTS 7 AND 8 AS PER THE ORDER
             DATED 06.10.2022 IN IA.115/2015 IN RSA,309/2011.)


            BY ADVS.
                 R2,R7,R8 PIRAPPANCODE V.S.SUDHIR
                 R7&R8    JELSON J.EDAMPADAM



      THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2025,
THE COURT ON 18.02.2025, DELIVERED THE FOLLOWING:
 RSA No.309/2011


                                   3
                                                        2025:KER:13174
                               JUDGMENT

1. This is a composite Regular Second Appeal arising from the suit

as well as the counterclaim in the suit. The appellants are the

defendants 1 to 3 in the suit. The plaintiffs are husband and wife.

Though additional defendants 4 to 7 were impleaded as per I.A No.

7130/2003, the suit was dismissed against them for not taking

steps to issue summons to them. The defendants 4 to 7 are the

respondents 3 to 6 herein, and hence, this Court dispensed notice

to them.

2. The suit was for declaration of title, possession, and

consequential prohibitory and mandatory injunctions with

respect to 22.500 cents of land consisting of 7 cents in

Sy.No.618/10 and 15.500 cents in Sy.No.618/11 of Kadakampilly

village. They claim the plaint schedule property as per Ext.A1

Settlement Deed of the year 1997 executed by the mother of the

2025:KER:13174 2 nd plaintiff, Sathyabhama. As per the Plaint Schedule

description, 7 cents in Sy.No. 618/10 is the property covered by

Gift Deed No.602/1987 (Ext.B3) and described in A schedule Item

No.1 in Gift Deed No. 412/1970 ( Ext.B1) and included in

Thandaper No. 21936 and 15.500 cents in Sy.No.618/11 is

included in Patta No. 7518. The boundaries as per the Plaint

Schedule Description are that 16.5 cents belonging to

Sadanandan is on the eastern side, property of Kadakkal Vilakam

Kavu on the western side, Kadakkal Vilakam pathway is on the

northern side, and property of Swaroopanandasramam is on the

south.

3. The relevant plaint allegations are that when the land owners on

the eastern side tried to trespass into the plaint schedule property

disputing the eastern boundary, O.S.No.2000/1996 was filed by

the plaintiffs, and the said suit was settled out of court putting up

boundary wall on the eastern side and the said suit was dismissed

2025:KER:13174 for default. The defendants, who are in inimical terms with the

plaintiffs, demolished the brick superstructure on the western

side of the plaint schedule property, and when the plaintiff tried to

reconstruct the said demolished superstructure, the defendants

obstructed the same by making a fictitious claim. They attempted

to trespass into the plaint schedule property by demolishing the

old rubble basement on the western boundary and to reduce a

portion into their possession. Hence, the plaintiffs sought the

declaration of title and possession over the plaint schedule

property, an injunction against the defendants from trespassing

into the plaint schedule property and from demolishing the rubble

wall on the western side and from committing waste, and a

mandatory injunction to the defendants to restore the old

basement on the western side to its original position.

4. The defendants 1 to 3 filed a Written Statement with a

counterclaim contending, inter alia, that the defendants are the

2025:KER:13174 members of Kudavoor Valiyaveetu kavu Sree Durga Kshetra

Committee. The plaint schedule property is not wholly or fully

enjoyed by the plaintiffs. The mother of the 2nd plaintiff had only 7

cents of property as per Ext.B1 Gift Deed of the year 1970

executed by her father, Ramakrishnan. The mother of the 2nd

plaintiff did not have any excess property to settle the same in

favour of the plaintiffs. The mother of the plaintiff settled the said

7 cents as per Ext.B3 Settlement Deed of the year 1987. The

property measuring 15.500 cents, which is shown in addition to

the above 7 cents, is held and enjoyed by the aforesaid temple,

which is on the western side of the 7 cents, belonging to the

plaintiff. There is no boundary wall separating the plaintiff's

property and the Temple property. The rubble basement referred

to by the plaintiff is constructed inside the property of the temple

to keep the sanctity of the Kavu. Ext.A1 of the year 1997 is a

fraudulent document executed by Sathyabhama in order to claim

2025:KER:13174 the 15.500 cents belonged to the Temple. On the strength of the

Ext.A1 document, the plaintiffs attempted to construct a

compound wall on the western side of the property described in

the plaint schedule, which includes 15.500 cents belonging to the

Temple. On the intervention of the members of the Temple, the

plaintiff could not succeed. The Father of Sathyabhama named

Ramakrishnan had 23.500 cents of land, and as per Ext.B1

document Ramakrishnan gifted the western 7 cents of land to

Sathyabhama and the remaining eastern 16.500 cents to his son

Sadanandan. The defendants never tried to trespass into the

plaintiffs' property. It is the plaintiff who attempted to annex and

enclose 15.500 cents belonged to the Temple. The defendants are

entitled to protect the property of the Temple. Hence, the

defendants raised a counterclaim for a decree of declaration that

the plaintiffs are entitled to only 7 cents of land and that 15.500

cents in Survey No.618 is mischievously described in Ext.A1

2025:KER:13174 document and the plaintiffs are not entitled to get a declaration of

title and possession of the said property, as their predecessors

did not get the title.

5. On the side of the plaintiffs, the 1st plaintiff was examined as

PW1, and the Advocate Commissioner in O.S No.2000/96, who

prepared Ext.A10/A14 Commission Report, was examined as

PW2. The first defendant was examined as DW1. The Advocate

Commissioner who prepared Exts.C1 and C2 Commission

Reports were examined as CW1. On the side of the plaintiffs,

Ext.A1 to A14 documents were marked, and on the side of the

defendants, Ext.B1 to B9 documents were marked.

6. The Trial Court decreed the suit, granting the declaration and

permanent prohibitory injunction, and refusing the mandatory

injunction, and dismissed the counterclaim.

7. Though the defendants 1 to 3 filed composite Appeal before the

First Appellate Court challenging the judgment and decrees in the

2025:KER:13174 suit as well as in the counterclaim, the same was dismissed,

confirming the judgment and decrees of the Trial Court. This

Regular Second Appeal is filed challenging the judgment and

decrees of the Trial Court in the suit as well as the counterclaim,

which is confirmed by the First Appellate Court.

8. This Regular Second Appeal is admitted on the following

substantial questions of law:

When the respondents are tracing title under Ext.A1 settlement

deed executed by Sathyabhama and under Ext.B1

Sathyabhama obtained title only to the western 7 cents whether

the courts below were justified in granting decree in respect of

22.5 cents of land without proving title to 15.5 cents?

9. During the pendency of the appeal, the 1st respondent died and

his legal heirs are impleaded as additional respondents 7 and 8.

10. I heard learned Senior Counsel Sri.T.Krishnanunni instructed

by Advocate Sri.Rajasekharan Nair for the appellant and the

2025:KER:13174 learned Counsel who appeared for respondents 2, 7 and 8

Sri.Pirappancode .V.Sudheer

11. The learned Senior Counsel for the appellants contended

that the Trial Court as well as the First Appellate Court should not

have granted a decree in favour of the plaintiffs with respect to the

disputed 15.500 cents which is the western part of the plaint

schedule property as the plaintiffs and their predecessors did not

derive any title over the same. Learned Senior counsel invited my

attention to the recitals in Ext.A1, B3, B1, and B5 to substantiate

the point that the said 15.500 cents is not included in any of the

said documents except the last document Ext.A1, which is

executed in favour of the plaintiffs. Ext.A1 is a fraudulent

document with respect to the property which is shown as plaint

schedule property, which was executed for the sole purpose of

making a false claim over the disputed 15.500 cents of land

belonging to the Temple. The 7 cents in Sy.No.618/10 is already

2025:KER:13174 gifted to the plaintiffs as per Ext.B3 Settlement Deed of the year

1987, and thereafter, Ext.A1 Settlement Deed was executed

again, including the very same 7 cents with the sole purpose of

including the disputed 15.500 cents. Ext.B1 would prove that

Ramakrishnan, father of Sathyabhama, had 23.500 cents in

Sy.No.618, and he gifted the eastern 16.500 cents to Sadanandan,

brother of Sathyabhama and the remaining western 7 cents to

Sathyabhama. The entire property belonged to Sathyabhama as

per Ext.B1, having an extent of 7 cents was gifted to the plaintiffs

as per Ext.B3 Settlement Deed and Sathyabhama did not have any

other property to execute Ext.A1 settlement in favour of the

plaintiffs. It is stated in Ext.A1 that Sathyabhama derived 15.500

cents as per Patta No.7518 of Kadakampally Village Office. There

could not be any Patta issued from the village office, and hence,

Sathyabhama did not derive title over the western 15.500 cents

included in the Ext.A1 document. Even though the defendants did

2025:KER:13174 not produce any document to prove the title of the property of the

Temple, it is the burden of the plaintiff to prove the title and

possession over the plaint schedule property to get a decree and

they could not take undue advantage of the weakness of the

defendants. The learned Senior Counsel concluded that the suit

is liable to be dismissed, and the counterclaim is liable to be

allowed.

12. The learned counsel for the contesting respondents contended

that the cross-examination of the 1st defendant as DW1 alone is

sufficient to decree the suit in favour of the plaintiffs. DW1

specifically admitted that he enquired about the Patta of

Sathyabhama, he saw a record with respect to 15.500 cents and

another record with respect to 7 cents; that the 15.500 cents and

7 cents are lying together; that there is a demolished compound

wall on its western side; and that the Temple is on its western side.

The learned counsel further contended that Ext.C1 and C2

2025:KER:13174 Commission Reports in the present suits and Exts.A10/A14

Commission report in the earlier suit, O.S.No 2000/96 which are

proved by the evidence of CW1and PW2 sufficiently establish that

the plaint schedule property has been remaining in a simple

compact plot in the possession of the plaintiffs. That apart Exts.

A2 series of Land Tax Receipts, Ext.A3 Possession Certificate,

Ext.A4 Location Certificate, and Ext.A8 Order of the District

Collector would prove that the plaintiffs are in possession of the

plaint schedule property and the plaint schedule property duly

mutated in the names of plaintiffs. Ext.A2 Land Tax Receipt clearly

shows Sathyabhama had 15.500 cents in Sy.No.618 mutated in

her name before execution of Ext.A1 document. The defendants

did not produce even a scrap of paper to prove that the disputed

15.500 cents belongs to the Temple. Learned Counsel cited the

judgment of the Hon'ble Supreme Court in Civil Appeal

No.4527/2009 to substantiate the point that a person in

2025:KER:13174 possession of land in assumed character of owner and exercising

peacefully the ordinary rights of ownership has a perfectly good

title against the entire world except the rightful owner, and that in

such a case, the defendant must show in himself or his

predecessor a valid legal title and probably a possession prior to

the plaintiff's, and thus be able to raise a presumption prior in

time. Learned counsel concluded that the Trial Court and the First

Appellate Court correctly appreciated the pleadings and evidence

and arrived at the right conclusion: there is nothing to be

interfered with in the impugned judgments and decrees, and no

substantial question of law arises in the matter.

13. I have considered the rival contentions.

14. As per the plaint schedule description, the plaintiffs are

claiming 7 cents situated in Sy.No.618/10 and 15.500 cents

situated in Sy.No.618/11. There is no dispute between the parties

with respect to the 7 cents situated in Sy.No.618/10. It is stated in

2025:KER:13174 the plaint schedule that 7 cents is described in Ext.B1 and B3

Settlement Deeds. Ext.B1 Settlement Deed of the year 1970 is

executed by the father of Sathyabhama. As per Ext.B1,

Sathyabhama derived the western 7 cents, and her brother

Sadanandan derived the eastern 16.500 cents of 23.500 cents.

Ext.B1 also reveals that Ramakrishnan had a total extent of 23.500

cents in Sy. No.618/10. The plaintiffs do not have any case that

Ramakrishnan had more extent than 23.500 cents in Sy.

No.618/10. Admittedly, the 16.500 cents gifted to Sadanandan is

situated on the eastern side of the Plaint Schedule property.

Ext.B5 would show that the legal heirs of Sadanandan partitioned

the said 16.500 cents among them. It is against the legal heirs of

Sadanandan that the plaintiff filed an earlier suit, O.S.No

2000/1996. Ext.B6 is the Plaint and B4 is the judgment in O.S

No.2000/1996. It is with respect to the eastern boundary of the

plaint schedule property. Ext.B4 would reveal that the said suit

2025:KER:13174 was dismissed for default. The said suit has nothing to do with the

present suit as it relates to the eastern boundary of the plaint

schedule property and the contesting defendants are not parties

to the said suit. In the said suit also, the total extent included is

22.500. It is stated that 7 cents are derived as per Ext.B3

Settlement Deed and 22.500 cents as per lie and possession.

There is no claim in Ext.B6 that the extent in excess of 7 cents

belonged to Sathyabhama as per Patta. In the Schedule of Ext.A1

it is stated that 15.500 cents in Sy.No.618/11 is obtained as per

Patta No.7518. It is stated in the body of Ext.A1 that Patta No.7518

is issued by the Kadakampally Village Office. In another part of

Ext.A1, it is stated that 7 cents is included in Thandaper No.21936

and the balance is included in Thandaper No. 7598. As rightly

contended by the learned Senior Counsel for the appellant Patta

could not be issued from Village Office. It could only be the

Thadapper number. In Ext.A2 Land Tax Receipt dt. 01.02.1997 it is

2025:KER:13174 seen that Sathyabhama has paid land tax with respect to 15.500

cents in Sy.No. 618/11 for the years up to 1995-96 and 1996-97 in

No.7518. The said number 7518 showed in Ext.A2 could only be

the Thandaper Number of the village. Ext.A2 is dated 01.02.1997,

which is about one month prior to the execution of Ext.A1 dt.

05.03.1997. The plaintiffs have not explained as to how

Sathyabhama obtained 15.500 cents in Sy. N. 618/11. They did not

produce any prior Land Tax Receipts. Since Ext.A2 shows that land

tax is paid up to the year 1995-96, the probability is that

Sathyabhama did not remit land tax earlier. Exts.A2(a) and A2(b)

Land Tax Receipts in the name of the plaintiffs, A3 Possession

Certificate, A4 Location Certificate are subsequent to Ext.A1. They

are obtained on the basis of Ext.A1. The plaintiffs could not claim

title or possession of the 15.500 cents of land in Sy.No.618/11 on

the strength of the same. Ext.A8 proceedings of the District

Collector also refer to the facts subsequent to Ext.A1 and do not

2025:KER:13174 state as to how Sathyabhama obtained title over 15.500 cents in

Sy.No.618/11. Ext.A8 order of the District Collector was passed in

a proceeding initiated at the instance of the first defendant

alleging illegal encroachment of Temple property against the

plaintiffs and Sathyabhama and the parties are relegated to the

pending civil suit, which appears to be the present suit. As per

Ext.B3, Sathyabhama gifted the entire property, having 7 cents in

Sy.No.618 derived as per Ext.B1, to the plaintiffs. In Ext.B3, the

western boundary of the said 7 cents is not shown as the property

of Sathyabhama. If Sathyabhama had the disputed 15.500 cents,

the western boundary of Ext.B3 property would surely have been

shown as the property of Sathyabhama. The 7 cents of land which

belonged to Sathyabhama was gifted to the plaintiffs as per Ext.B3

of the year 1987, and there was no need for executing another gift

deed as Ext.A1 in the year 1997, including the said 7 cents. It

reveals that Sathyabhama executed Ext.A1 document again for

2025:KER:13174 the sole purpose of raising a claim over the disputed 15.500 cents

in Sy.No.618/11.Exts.A13 and B9 Field Register would show that

Sathyabhama had only 7 cents in Sy. No.618/10 and she had no

property in Sy.No.618/11.

15. Admittedly, the temple property is situated on the western

side of the Plaintiff's property. It is true that the defendants did not

adduce any evidence to prove that the disputed 15.500 cents

belonged to the Temple. It is true that in cross-examination, the

1st defendant has admitted that he has seen a document with

respect to 15.500 cents of land. But that alone is not sufficient to

confer the title of the disputed property in favour of the plaintiffs,

when there are overwhelming evidence to prove that no Patta is

issued in favour of Sathyabhama, mother of the plaintiff, with

respect to the disputed 15.500 cents. In fact, no evidence is

before the Court to prove the title of the disputed 15.500 cents of

land. The declaration of title over the disputed 15.500 cents of

2025:KER:13174 land is sought by the plaintiffs. Even though the defendants raised

a counterclaim, they did not seek a declaration of title over the

disputed 15.500 cents of land. Since the plaintiff is seeking a

declaration of title over the said 15.500 cents of land, the entire

burden is on the plaintiffs to prove the same. It is well settled that

the plaintiff has to stand on his own legs to prove the plaint claim

and the weakness of the defendants could not be taken as a

ground to grant relief in favour of the plaintiffs. The plaintiffs have

not discharged their burden. The Trial Court, as well as the First

Appellate Court, wrongly found that Sathyabhama, mother of the

plaintiffs, got Patta in her favour with respect to the disputed

15.500 cents of land, misunderstanding the Thandaper No. 7518

as the number of Patta. The pleadings and evidence would clearly

indicate that the plaintiffs obtained the Ext.A2 Land Tax Receipt

just before the execution of the Ext.A1 document only for the

purpose of staking a false claim over the disputed 15.500 cents.

2025:KER:13174 Ext.A2 Land Tax Receipt could not be relied on. In view of the

pleadings and evidence in this case, the decision cited by the

counsel for the contesting respondents is clearly distinguishable

on facts. Hence, the judgment of the Trial Court granting a

declaratory decree in favour of the plaintiffs with respect to the

disputed 15.500 cents, which is confirmed by the First Appellate

Court, is liable to be set aside. Since the defendants are not

disputing the title of the plaintiffs over the 7 cents of land which is

the eastern part of the plaint schedule property covered by Ext.B3,

there is no need to interfere with the declaration with respect to

the said 7 cents. Consequently, the counterclaim raised by the

defendants 1 to 3 is liable to be decreed in part declaring that

15.500 cents in Sy.No.618/11 is mischievously included in Ext.A1

title deed and that the plaintiffs are not entitled to get declaration

of title over the same.