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
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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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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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EASWARAN S., J.
---------------------------------------------------------
R.S.A No.262 of 2024
---------------------------------------------------------
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
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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
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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
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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
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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
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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
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substantial question of law arises for consideration in this
appeal.
Accordingly, the appeal fails and the same is dismissed.
Sd/-
EASWARAN S.
JUDGE
ACR
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PETITIONER EXHIBITS
Receipt Receipt dated 22.11.2024 for payment of
Rs.2,500/- to KELSA
