Kerala High Court
K.M.Cherian vs Ammini on 7 July, 2025
AS No.34 of 2003
1
2025:KER:49425
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
AS No.34 of 2003
2
2025:KER:49425
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,
AS No.34 of 2003
3
2025:KER:49425
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:
AS No.34 of 2003
4
2025:KER:49425
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
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.
2025:KER:49425
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
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
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
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
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
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?
2025:KER:49425
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;
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.
2025:KER:49425
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
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
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?
2025:KER:49425
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
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
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.
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
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
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
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.
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.
2025:KER:49425
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
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.
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
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
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
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.
2025:KER:49425
Conclusion:
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
2025:KER:49425
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
