Kerala High Court
Thankamani vs Vijayadharan on 19 June, 2025
2025:KER:43837
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 19TH DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
RSA NO. 578 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2023 IN
AS NO.38 OF 2022 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT - III, ALAPPUZHA ARISING OUT OF THE JUDGMENT AND
DECREE DATED 21.06.2016 IN OS NO.12 OF 2015 OF SUB COURT,
CHERTHALA
APPELLANTS/APPELLANTS/DEFENDANTS:
1 THANKAMANI
AGED 61 YEARS
W/O. LATE SOMANATHAN,
'RAJALEKSHMI MANDIRAM',
PATTANAKKAD VILLAGE, ALAPPUZHA,
PIN - 688 531.
2 RAJALEKSHMI
AGED 32
D/O. SOMANATHAN, RAJALEKSHMI MANDIRAM',
PATTANAKKAD VILLAGE,
ALAPPUZHA,
PIN - 688 531.
3 DHANALEKSHMI
AGED 27
D/O. SOMANATHAN, RAJALEKSHMI MANDIRAM',
PATTANAKKAD VILLAGE, ALAPPUZHA,
PIN - 688 531.
BY ADVS.
SRI. DINOOP P.D.
SRI. V.VENUGOPALAN NAIR
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RSA NO.578 OF 2024
2
RESPONDENT/RESPONDENT/PLAINTIFF:
VIJAYADHARAN
S/O. GANGADHARAN,AGED 73 YEARS
'VELIYIL HOUSE', PATTANAKKAD VILLAGE,
CHERTHALA, ALAPPUZHA, PIN - 688 531.
BY ADVS.
SMT. M.S.LETHA
SRI. K.R.VINOD
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 19.06.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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RSA NO.578 OF 2024
3
EASWARAN S., J
-----------------------------
R.S.A No.578 of 2024
-------------------------------
Dated this the 19th day of June, 2025
JUDGMENT
This appeal arises out of the concurrent findings in
OS No.12 of 2015 on the files of the Sub Court, Cherthala
as well as AS No.38 of 2022 on the files of the Additional
District and Sessions Court - III, Alappuzha.
2. The brief facts necessary for the disposal of the
appeal are as follows:-
The plaintiff under a contract of sale approached the
Sub Court, Cherthala in OS No.12 of 2015 seeking for
return of advance money. The case treated by the plaintiff
is that when an agreement of sale was entered between
him and the defendants on 25.10.2014, a clog on title of
the defendants by Ext.A4 partition dated 03.11.1953 was
disclosed to him. It was contended that while entering
into an agreement of sale, the partition deed
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No.1857/2006 dated 18.12.2006 alone was given and not
the prior deed. Based on the agreement of sale, an
amount of Rs.12 Lakhs was advanced to the defendants
towards the advance sale consideration. Later, when the
plaintiff verified the prior deed No.3529 of 1953, it was
found that the portion of the property to be sold was set
apart for the construction of a temple, and there were no
alienable right over the property. However, ignoring the
abovesaid clause, Ext.A1 partition deed was executed.
After taking legal opinion as regards the title of the
defendants, the plaintiff felt that there is no alienable
right conferred on the defendants based on Ext.A1
document and therefore, he expressed his intention to
withdraw from the agreement of sale and issued a notice
to the defendants calling for return of the advance sale
consideration.
3. The defendants entered appearance and
contested the suit by stating that the clog on title stated
to have been there as per Ext.A4 partition deed is no
longer available inasmuch as the parties to Ext.A4
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themselves have executed Ext.A1 partition deed and
therefore, the finding is only a ruse not to perform the
contract of sale. However, the defendants did not adduce
any oral or documentary evidence. On behalf of the
plaintiff, Exts.A1 to A6 were produced and the plaintiff
was examined as PW1.
4. The trial court on the basis of the pleadings
framed the following issues:-
"1. Whether the plaintiff stepped back from
performing his part of agreement?
2. Whether the defendants are not having any
right over the plaint schedule property?
3. Whether the plaintiff is entitled to get back
the amount as prayed for?
4. Relief and costs?"
5. On consideration of the oral and documentary
evidence, the trial court decreed the suit finding that the
plaintiff was entitled to withdraw from the sale inasmuch
as there is a clog on title of the plaintiff by virtue of the
conditions under Ext.A4 partition deed, accordingly
decreeing the suit.
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6. Aggrieved by the judgment and decree, the
defendants preferred AS No.38 of 2022 which was also
dismissed by judgment dated 22.07.2023 and hence the
present appeal.
7. Heard Sri.V.Venugopalan Nair, the learned
counsel appearing for the appellants and Sri.K.R.Vinod,
the learned counsel appearing for the
respondent/plaintiff.
8. The learned counsel for the
appellants/defendants pointed out that the findings of the
trial court that the defendants failed to adduce any oral or
documentary evidence is immaterial, since it is for the
plaintiff to prove this case. It is further pointed out that,
even going by the documentary evidence produced by
the plaintiff, it is clear that the apprehension expressed
by the plaintiff is baseless. The fact that the parties to
Ext.A4 themselves executed Ext.A1 partition deed would
belie the case set up by the plaintiff.
9. Sri.K.R.Vinod, the learned counsel appearing on
behalf of the respondent would point out that both courts
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have found concurrently on appreciation of Ext.A4 that
there is a clog on title of the defendants. The concurrent
finding of fact cannot be interfered by this Court in an
appeal under Section 100 of the Code of Civil Procedure,
1908, unless it is shown that the appreciation of such
evidence is perverse.
10. I have considered the rival submissions raised
across the Bar.
11. The prime consideration for this Court has to
bestow upon, is as regards the finding of the trial court on
the possible clog on the title of the defendants. It is in
this context that the submission of the learned counsel
for the appellants must be taken note of. According to
the appellants, the parties to Ext.A4 themselves had
executed Ext.A1 and therefore, the restriction imposed
under Ext.A4 is no longer available.
12. However, it is pertinent to note that the
defendants did not adduce any oral or documentary
evidence. The failure on the part of the defendants to
step into the box and tender evidence is taken note by
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the trial court and is considered, to a factor, to hold
against him. The question as to whether the appellants
have a valid right, title and interest over the property is
not a substantial question of law which arises for
consideration because the trial court has analysed the
clauses in Ext.A4 and found that there is a clog on the
title of the appellant. The relevant findings of the trial
court is extracted as under:-
"8. Admittedly Ext.A2 agreement is dated 25.10.14
which is an unregistered agreement. The learned
counsel for defendants would content that the
document cannot be accepted in evidence since it is
an unregistered one. After the amendment to Sec. 17
of the Registration Act the agreement for sale should
be registered one. But it is to be noted that there is
no corresponding amendment to Sec.49 of the
Registration Act. It is true that this is not a suit for
specific performance of agreement dated 25.10.14
but the suit for realisation of advance amount. Either
the execution of the agreement or any of the terms of
the same are not disputed. Entire terms of the
agreement is specifically alleged in the plaint and
none of the allegations in the plaint with respect to
the execution of agreement dated 25.10.14, total
consideration fixed, with respect to the property,
advance amount paid etc., are not disputed by
defendants. The case of the plaintiff is that on
perusal of Ext.A4 partition deed he came to know
that defendants are not having absolute right over
the plaint schedule property. But defendants would
content that they are having absolute right, title and
possession over the same and due to lack of funds
the plaintiff stepped back from preforming his part of
agreement. Ext.A4 is prior partition deed of the
family of the Somanadhan who is the predecessor of
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the defendants. On going through Ext.A4 and A1
documents it is clear that the plaint schedule
property or the property mentioned in Ext.A1 is the
item No.2 of B' schedule. With respect to the above
mentioned property in Ext.A4 there is a registration
for transferring or alienating the same. The
respective parties can pay the tax and that properly
is set apart to the family temple namely Kandakarna
temple. The above mentioned restriction of alienation
and transfer is not seen in Ext.A1 partition deed
executed by Somanadhan who is the predecessor of
the defendants and his brothers. According to
plaintiff on the basis of Ext.A1 partition deed he
prepared Ext.A2 agreement and for preparing the
same he obtained the prior deed of Ext.A1 which is
marked as Ext.A4 and he consulted with advocate
and he came to know that the predecessor of the
defendants have no absolute right to assign the
plaint schedule property. In this juncture it will be
beneficial to go through the relevant recital contained
in page 3 and 4 of Ext.A4. It says as follows
ബി പട്ടികകളും സി പട്ടികകളും ഡി പട്ടികകളും നമ്പരുകളായി
ചേർത്തിരിക്കുന്ന കാവക്കാട്ടു ഉപകരി പുരയിടങ്ങൾ നമ്മളുടെ
കുടുംബസ്ഥലമാകയാൽ ടി ഉപകരികളെ സംബന്ധിച്ച്
കരണങ്ങൾ ചെയ്യുന്നതിനോ അന്യാധീനം ചെയ്യുന്നതിനോ ടീ
ഉപകരികൾ അവകാശപ്പെടുത്തിയിട്ടുള്ള ഭാഗക്കാർക്ക്
അധികാരമില്ലാത്തതും കാവക്കാട് പുരയിടത്തിൽ ഇരുപ്പ്
കണ്ടാകർണ്ണക്ഷേത്രത്തിന്റെ ഇരുവശവും തുല്ല്യമായി വരുന്നതും
അഞ്ചു കമ്പ് വീതിയിൽ ബി.സി.ഡി പട്ടികകളിൽപ്പെട്ട നെൽ
വയൽ എത്തി കിടക്കുന്നതുമായ സ്ഥലം ടി
കണ്ടാകർണ്ണക്ഷേത്രത്തിന്റെയും മറ്റു കുടുംബ
പതിവടിയന്തിരത്തിന്റെയും ആവശ്യത്തിലേക്ക്
ഉപയോഗിക്കേണ്ടതിനാൽ ടി സ്ഥലത്തു ദേഹണ്ണങ്ങൾ
ചെയ്യുന്നതിനാർക്കും അവകാശമില്ലാത്തതുമാകുന്നു. On going
through Ext.A1 and A2 it is dear that A1, A2 property
including item No.2 of B schedule is in Ext.A4."
13. It is in this context, this Court must consider the
failure of the defendants to mount the box to tender
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evidence and establish otherwise. In the absence of any
such attempt made by the defendants, the findings of
both the courts cannot be interfered by this Court in
exercise of the powers under Section 100 of the Code of
Civil Procedure.
14. In the aforesaid circumstances, this Court, finds
that no substantial question of law arises for
consideration in the present appeal.
Resultantly, the said appeal fails and the same is
dismissed. No order as to cost.
Sd/-
EASWARAN S.
JUDGE
SPR
