Kerala High Court
Mohandas, S/O. Rabi Nadar vs Latin Catholic Diocese Of ... on 11 June, 2025
RSA No.856/2009
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA, 1947
RSA NO. 856 OF 2009
AGAINST THE JUDGMENT&DECREE DATED 23.03.2006 IN AS NO.66 OF 2000 OF
SUB COURT,NEYYATTINKARA ARISING OUT OF THE JUDGMENT&DECREE DATED 20.06.2000
IN OS NO.967 OF 1997 OF PRINCIPAL MUNSIFF COURT, NEYYATTINKARA
APPELLANT/RESPONDENT/PLAINTIFF:
MOHANDAS, S/O.RABI NADAR,
RESIDING AT CHEMMANNUVILA PUTHEN VEEDU,THALAYAL DESOM,,
ATHIYANOOR VILLAGE.
BY ADVS.
SRI.G.P.SHINOD
SRI.MANU V.
RESPONDENTS/APPELLANTS/DEFENDANTS:
1 LATIN CATHOLIC DIOCESE OF NEYYATTINKARA
REPRESENTED BY ITS BISHOP RT.REV.DR.VINCENT,, SAMUVEL
RESIDING AT BISHOP'S HOUSE,VAZHUTHOOR,, NEYYATTINKARA.
2 REV.FR.G.CHRISTUDAS VICAR OF ST.JOSEPH
CHURCH,UNDENCODE OF CHERIYAKOLLA DESOM,KUNNATHUKAL, VILLAGE.
3 ROY S/O.JOSE RESIDING AT A10 HOUSE
NEAR JAWAHAR NAGAR,L.P.S,SASTHAMANGALAM WARD OF,
THIRUVANANTHAPURAM CORPORATION.
R1 TO R3 BY ADV SHRI.N.C.JOSEPH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.06.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA No.856/2009
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JUDGMENT
(RSA No.856/2009)
Dated this the 11th day of June 2025
1. Plaintiff in O.S No. 967/1997 of the Munsiff's Court, Neyyattinkara, is
the appellant. The suit was for declaration of title, recovery of
possession and putting up boundary with respect to the plaint
schedule property. The plaint schedule property is 5 cents of land
situated in Sy. No. 143/1 of Athiyannoor Village in Neyyattinkara Taluk
and the improvements therein, including a well and the pathway
having a width of 6 links from the Municipal Road situated on the
Western side. As per the plaint descriptions, the said 5 cents is
situated on the immediate northern side of 10 cents belonging to
Allosious situated on the southern side abutting the western
boundary of 1 acre 20 cents having specific side measurements
which is part of 7 acres 81 cents in Sy.No.143/1.
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2. As per the plaint allegations, the property having an extent of 1 acre
20 cents including the plaint schedule property belonged to one
Raman Ramachandran. The property was outstanding on mortgage.
One Nanu Panicker Vijayan obtained mortgage right in respect of a
property apart from Meeran Pillai Assainar Pillai and others as per
Ext.B3 document of the year 1968. Nanu Panicker Vijayan filed O.S.
No.315/1970 and O.S. No. 461/1971 for redemption of sub-
mortgages. The plaint schedule property having 5 cents was not
redeemed. After obtaining property excluding the plaint schedule
property, Nanu Panicker Vijayan executed Ext.B6 document of the
year 1984 releasing the mortgage in favour of Raman
Ramachandran. The possession of the said property continued with
the mortgagee and the mortgage became time barred. Moideen
Sahib Mohammed Ali Sahib who obtained title to the plaint schedule
property, conveyed the same to the plaintiff by Ext.A1 document of
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the year 1997. The building situated therein was demolished and
taken by the vendor himself and a well is situated in the property. Out
of the property derived by Raman Ramachandran on the
southwestern corner, 10 cents was sold to one Allosious and he is in
possession of the said property, constructing a building and
compound wall. The plaint schedule property is situated on the
northern side of the said property. The plaintiff understands that the
defendants 1 and 2 purchased the remaining property. On
20.09.1997, the 2nd defendant along with his employees came to the
plaint schedule property, destroyed its boundaries and way and
annexed the same with their property cultivating tapioca therein. The
plaint schedule property could be identified only by the existence of
well.
3. The defendants filed Written Statement contending, inter alia, that
the description of the plaint schedule property is not correct. The
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plaint schedule property could not be identified as per the
description in the plaint. 5 cents of property described in the plaint
schedule is not lying separately. The 1st defendant purchased 70 ½
cents of land including the 5 cents described in the plaint schedule
as per Ext.B1 and B2 documents of the year 1996. 20 ½ was
purchased from the 3rd defendant as per Ext.B2 who purchased the
same from Raman Ramachandran as per Ext.B7. 50 cents out of the
same was purchased from Raman Ramachandran as per Ext.B1. The
said 70 ½ cents of land is lying with well-defined boundaries. The 1st
defendant has been in exclusive possession and enjoyment of the
said 70 ½ cents. No incident as alleged in the plaint occurred on
20.09.1997. The executant of Ext.A1 in favour of the plaintiff had no
right to execute such a document. He was not in possession of any
property as claimed. There was no building as stated by the plaintiff.
It is true that 1 acre 20 cents with side measurements belonged to
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Raman Ramachandran. Mortgage right in favour of the property was
assigned by Nanu Panicker as per Ext.B3. Sub-mortgage with respect
to 23 cents, which was created as per Document No. 3535/1115,
was redeemed by the said Nanu Panicker Vijayan as per O.S. No.
315/1970. The delivery of the said 23 cents was obtained as per
Ext.B4 on 10.04.1975, and the building therein was obtained as per
Ext.B5 dated 04.09.1984. Nanu Panicker Vijayan filed another suit,
O.S No. 461/1971, and obtained Ext.A2 decree. A.S No.139/1977
was dismissed. After obtaining redemption of the mortgage, no
property was outstanding on the mortgage. The entire area of 1 acre
20 cents was assigned by Nanu Panicker Vijayan in favour of Raman
Ramachandran as per Ext.B6. 10 cents on the southwest corner was
sold to one Allosious. Thereafter, 20 ½ on the immediate northern
side of the 10 cents belonged to Allosious was sold to the 3rd
defendant as per Ext.B7 and 3rd defendant sold the said 20 ½ cents
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to the 1st defendant as per Ext.B2. 50 cents on the eastern side of the
said 20 ½ and the property of Allosious was purchased by the 1st
defendant from Raman Ramachandran as per Ext.B1. There are well
defined boundaries around the said 70½ cents of property for the
last more than 20 years. The vendor of the plaintiff was a party to
O.S.Nos.315/1970 and 461/1971. Hence, the suit is barred by res
judicata and estoppel.
4. On the side of the plaintiff, the plaintiff was examined as PW1 and
Exts. A1 and A2 documents were marked. On the side of the
defendants, no oral evidence was adduced. Exts. B1 to B10 were
marked. The Commission Report and Plan were marked as Exts.C1
and C1(a).
5. The Trial Court decreed the suit declaring the right of the plaintiff over
the plaint schedule property allowing the plaintiff to recover the
plaint schedule property from the defendants and allowing the
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plaintiff to put up boundary through BI, IJ and JL line in Ext.C1(a)
finding that the Advocate Commissioner has identified the plaint
schedule property as BIJK plot in the plan which is situated on the
northern side of the property of Allosious; that plaint schedule
property is C schedule in Ext.A2 decree and that there is no
document before the Court to show that the C schedule in Ext.A2
decree was redeemed by the Jenmi.
6. The defendants filed appeal before the First Appellate Court and the
First Appellate Court allowed the Appeal setting aside the judgment
and decree passed by the Trial Court and dismissing the suit holding
that from the description of C schedule in Ext. A2 decree it is seen
that it is the western plot of 5 cents whereas the plaint schedule
property is not the western plot of the entire A schedule of 1 acre 20
cents; that it could not be said that the plaint schedule property was
outstanding on mortgage and the same was in possession of the
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vendor of the plaintiff; that the vendor of the plaintiff who is the 4 th
defendant in Ext.A2 had not raised any such claim and hence such
claim cannot be raised by the plaintiff; and that the Trial Court
pointed out certain inconsequential discrepancies in Exts.B2 and B7
in order to find in favour of the plaintiff.
7. This Court admitted this Regular Second Appeal formulating
substantial questions of law.
8. I heard the learned counsel for the appellant, Sri. Shinod G.P. and the
learned counsel for the respondents 1 to 3, Sri. N.C.Joseph.
9. The learned counsel for the appellant contended that the plaint
schedule property having an extent of 5 cents is the C schedule
property in Ext.A2 decree in O.S.No.461/1971. A schedule property
therein covers the entire area of 1 Acre 20 cents. B schedule property
therein having an extent of 23 cents is redeemed and the delivery
was obtained by executing decree in O.S.No.315/1970 as per Exts.B4
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and B5. As per Ext.A2 plaint D schedule therein having 92 cents is
allowed to be recovered by the plaintiff therein. There is no quarrel
that the delivery of the said D Schedule property was obtained in
execution of the said decree. With respect to the C schedule therein,
there is no decree for recovery and there is nothing on record to show
that it is redeemed by the Jenmee. As such, even though Nanu
Panicker Vijayan executed Ext.B6 in favour of jenmee Raman
Ramachandran with respect to 1 Acre 20 cents, the jenmee has
derived only 1 Acre 15 cents i.e., excluding the plaint schedule
property of 5 cents. The Advocate Commissioner has correctly
identified the plaint schedule property as per plaint descriptions in
Ext.C1 (a) as situated on the immediate northern side of the 10 cents
belonged to Allosious. The existence of the well is also found in the
plaint schedule property. The defendants did not file any Objection
to the Commission Report and Plan and hence the defendants
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cannot dispute the identity of the plaint schedule property. The
defendants did not adduce any oral evidence in support of their
contentions. Hence, the Trial Court rightly decreed the suit. The First
Appellate Court ought not to have interfered with the well-
considered judgment and decree passed by the Trial Court. The
learned counsel concluded by praying to allow the Regular Second
Appeal answering all the formulated Substantial Questions of Law in
favour of the appellant.
10. On the other hand, the learned counsel for the respondents
contended that the plaint schedule property is not correctly
identified by the Advocate Commissioner in Ext.C1(a). In order to get
a declaration, the plaintiff has to prove his title over the plaint
schedule property identified by the Advocate Commissioner. Though
the plaintiff claims that the plaint schedule property is the C
schedule property in Ext.A2, no attempt was made to identify the
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entire extent of A schedule therein having an extent of 1 Acre 20
cents to find out the location of C schedule therein. The vendor in
Ext.A1 Sale deed in favour of the plaintiff is a party to Ext.A2 decree
and he did not have any claim that C schedule is not redeemed. The
prayer for recovery of C schedule was not included in Ext.A2 decree
since C schedule was already recovered from the mortgagees.
Ext.B6 document executed by Nanu Panicker Vijayan in favour of
Raman Ramachandran would reveal that the entire 1 Acre 20 cents
which was outstanding on mortgage was redeemed by him. The First
Appellate Court correctly appreciated the pleadings and evidence
before it and arrived at the right conclusion. The plaintiff is claiming
5 cents inside the property of the defendants. The Advocate
commissioner did not identify the entire A schedule property in Ext.
A2 to find out the location of C schedule therein. The formulated
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Substantial Questions of Law do not arise in the matter and hence
the Regular Second Appeal is liable to be dismissed.
11. In view of the arguments addressed by either side, the first question
to be considered in this Appeal is whether the Advocate
Commissioner has correctly identified the plaint C schedule
property in Ext.A2 decree which the plaintiff claims as the plaint
schedule property. Admittedly, 1 Acre 20 cents of land belonged to
Raman Ramachandran and the entire property was outstanding on
mortgage. It is the case of the defendants that the entire sub-
mortgage was redeemed by Nanu Panicker Vijayan who obtained the
mortgage right as per Ext.B3 and released the same in favour of
Raman Ramachandran as per Ext.B6. Ext.B3 is of the year 1968 and
Ext.B6 is of the year 1984 Both covers the entire 1 Acre 20 cents of
land. The claim of the plaintiff is based on Ext.A2 decree in
O.S.No.461/1971 filed by Nanu Panicker Vijayan for recovery of
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plaint D schedule property having an extent of 92 cents. Ext.A2
decree is only for the plaint D schedule property therein having an
extent of 92 cents. Ext.B4 and B5 prove the delivery of the plaint B
schedule of 23 cents in Ext.A2. Since the C schedule is not included
either in O.S.No.315/2017 or in O.S.No.461/1971, the claim of the
plaintiff is that the said extent is not redeemed. It is true that there is
no document to show that the said extent was redeemed or not. But
in Ext.B6, the said extent is also included. Ext.B6 is in the year 1984.
Ext.A1 executed by the fourth defendant in Ext.A2 in favour of the
plaintiff is of the year 1997, just immediately before the suit. The
identification of location of C schedule property cannot be made
with reference to the recitals in Ext.A1, which is executed
immediately before the suit as the defendants are having specific
case that the said document is fraudulently created by a person who
is not having any right over the property in favour of the plaintiff to
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stake a false claim. It is not clear whether the C schedule in Ext.A2
and the 5 cents described in Ext.A1 are one and the same, as per the
descriptions. No attempt was made by the plaintiff to identify the
plaint A schedule property in Exts.A2 and to identify the location of
B, C and D schedule therein which are part of plaint A schedule
property having an extent of 1 Acre 20 cents, in order to identify the
correct location of C Schedule property therein. In Ext.C1 (a), the
Advocate Commissioner has identified the property covered by
Exts.B1 and B2 as having an extent of 70 ½ cents of land and the
north and east of the property of Allosious. The total extent identified
is 80 ½ cents of land which includes the property of Allosious and
the property covered by Exts.B1 and B2. The location of the property
of Allosious is admitted by the parties as situated on the south-
western corner of the entire 1 acre 20 cents. As per Ext.B2, the 1 st
defendant is having 20 ½ cents on the immediate north of the
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property of Allosious. As per Ext.B1, the 1st defendant is having 50
cents on the eastern side of the property of Allosious and Ext.B2
property. Exts.B1 and B2 properties were correctly identified by the
Advocate Commissioner in Ext.C1(a). Raman Ramachandran sold
Ext.B2 property on 03.08.1995. The plaintiff or his predecessor did
not have a claim that Ext.B7 covers his property. Ext. B1 is dated
23.12.1996 and Ext.B2 is dated 26.12.1996. Ext.A1 is dated
13.01.1997. The immediate execution of Ext.A1 after the execution
of Exts.B1 and B2 would probabilise that Ext.A1 was executed to
make a false claim over 5 cents inside the property of the 1st
defendant. The 5 cents as per Ext.A1 is identified by the Advocate
Commissioner by the location of the well. There is no other
document except Ext.A1 that would show that Plaint C schedule
property in Ext.A2 is having the well. Plaint C schedule property in
Ext.A2 could not be identified by the location of the well. It is quite
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hard to believe that the mortgagor would keep 5 cents of land inside
the entire extent of the mortgaged property of 1 acre 20 cents,
without redemption. The inclusion of the entire extent of 1 acre 20
cents in Ext.B6 of the year 1984 would probabilize that the mortgage
over the entire mortgage was redeemed. Nobody would purchase 70
½ cents of land if another person is having right over 5 cents in the
middle of it. The Advocate Commissioner could not find any trace
for distinguishing the plaint schedule property from the surrounding
properties. The way included in the plaint also could not be found.
Hence, I am of the view that the pleadings and evidence in the case
would probabilize that the mortgage over plaint C schedule in Ext.A2
is also redeemed before the execution of Ext.B6 of the year 1984.
12. The Plaint schedule property having an extent of 5 cents was
identified with reference to the description in Ext.A1. Since the
Advocate Commissioner has not identified the entire 1 acre 20
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cents, it is not clear whether the C schedule in Ext.A2 decree is
located in the remaining land out of 1 acre 20 cents which is not
covered in Ext.C1(a). Without identifying the entire 1 acre 20 cents
and the location of plaint C schedule in Ext.A2, the Trial Court should
not have granted a decree in favour of the plaintiff. As rightly found
by the First Appellate Court, the C schedule in Ext.A2 is a western
plot, whereas the plaint schedule property identified in Ext.C1(a) is
not the western plot. It would indicate that the plaint schedule
property is not the C schedule property in Ext.A2. In such a case, the
specific claim of the plaintiff that plaint schedule property is the C
schedule property in Ext.A2 would fail. The First Appellate Court
rightly set aside the judgment and decree passed by the Trial Court.
The substantial questions of law formulated in this appeal do not
arise for consideration as it is not proved that the plaint schedule
property identified in Ext.C1 (a) as per the plaint description is the
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plaint C schedule in Ext.A2 decree and that the evidence would
prove redemption of plaint C schedule property in Ext.A2.
13. Accordingly, the Regular Second Appeal is dismissed with costs.
Sd/=
M.A.ABDUL HAKHIM
JUDGE
Jma/shg
