Kerala High Court
Maheswari vs Girija Sankaranarayana Pillai on 14 March, 2025
RSA No.493/2024
1
2025:KER:22558
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 14TH DAY OF MARCH 2025 / 23RD PHALGUNA, 1946
RSA NO. 493 OF 2024
AGAINST THE JUDGMENT&DECREE DATED 08.02.2024 IN AS NO.329 OF 2010
OF ADDITIONAL DISTRICT COURT V, KOLLAM ARISING OUT OF THE JUDGMENT&DECREE
DATED 18.01.2008 IN OS NO.33 OF 2005 OF MUNSIFF COURT, KARUNAGAPPALLY
APPELLANT/ADDL.2ND APPELLANT/LEGAL HEIR OF PLAINTIFF:
MAHESWARI,
AGED 42 YEARS
D/O.AMBIKABAI ANTHARJANAM, RESIDING AT NARAYANEEYAM, COLLEGE
NAGAR, T.K.M.C.P.O., KOTTANKARA, KOLLAM-691005 FROM
VADASSERI ILLAM, CLAPPANA SOUTH, CLAPPANA VILLAGE, KOLLAM
DISTRICT., PIN - 690525
BY ADVS.
B.KRISHNA MANI
N.V.SANDHYA
DHANUJA M.S
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 GIRIJA SANKARANARAYANA PILLAI,
AGED 66 YEARS
S/O.KESAVA PILLAI, RESIDING AT KOLADATHU THARAYIL, CLAPPANA
SOUTH, CLAPPANA VILLAGE, KOLLAM., PIN - 690525
2 RAJENDRAN PILLAI,
AGED 68 YEARS
S/O.SREEDHARAN NAIR, RESIDING AT HOUSE NO.66, S.N.V. GARDEN,
NANCHUNDAPURAM, COIMBATORE CORPORATION, TAMIL NADU-641024,
FROM LEELA SADANAM, CLAPPANA SOUTH, CLAPPANA VILLAGE,
KOLLAM., PIN - 690525
3 ANANDAM,
D/O.SOUDAMINI AMMA, RESIDING AT KOTTACKAKATHU
RSA No.493/2024
2
2025:KER:22558
KIZHAKKEEPUTHEN VEEDU, CLAPPANA SOUTH, CLAPPANA VILLAGE,
KOLLAM., PIN - 690525
BY ADVS.
PRASANTH S R
S.RAJAN
SIDHARTHAN V.K.(K/281/1987)
K.J.VALSALA KUMARI(K/462/1981)
BHANU THILAK(K/001355/2016)
FATHIMA RINSHA T.P.(K/003510/2024)
VISHNU.R(K/908/2014)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
14.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA No.493/2024
3
2025:KER:22558
JUDGMENT
1. The legal heir of the plaintiff is the appellant. Originally, the suit
was one for fixation of boundary. Later, the suit was amended
including declaration of title and recovery of possession.
2. As per the Plaint as amended, the Plaint A schedule property has
an extent of 35 cents, which is derived by the plaintiff as per item
No.2 of Ext.A1 document of the year 1973. Plaint B schedule
property has an extent of 4 cents which is stated to be the area
taken for the road. The balance extent of plaint A schedule
property having 31 cents is included in plaint C schedule property.
The road is situated on the eastern side of the Plaint C schedule
property. The property of the 2nd defendant is situated on the
northern side, and the property of the 3rd defendant is situated on
the western side. After the suit was dismissed by the Trial Court
on 23.12.2005 the defendant No.1 took possession of plaint D
schedule property having an extent of 7.750 cents and defendant
No.3 took possession of plaint E schedule property having an
2025:KER:22558
extent of 4 cents. The plaintiff is the title holder of plaint D and E
schedule property. The plaintiff sought a decree for fixing the
eastern northern and western boundaries of the plaint C schedule
property, for declaration of title over the plaint D and E schedule
properties, and to allow recovery of the possession of the D and E
schedule properties on the strength of the title.
3. Defendants 1 and 3 filed written statements opposing the suit
prayers, contending that the suit is not maintainable. The suit is
filed without including the property owners on the southern side.
The allegation that the defendant destroyed the ridges of the
property is false. The property of the 3rd defendant is situated on
the western side and the said property is demarcated by
boundaries. Even if any portion of the property of defendants 1
and 3 is found to be under the title of the plaint, his title is lost by
adverse possession and limitation. Resurvey of the properties are
finalized. The properties could not be measured through the old
plan.
2025:KER:22558
4. The 2 nd
defendant filed Written statements opposing the suit
prayers contending that the plaintiff is not having possession of
the property as described in the plaint schedule. Ochira-Vallikavu
Road passes through the plaint schedule property. Some portion
of the plaint schedule property is acquired for the said road. The
plaintiff does not have the entire property scheduled in the Plaint.
There was a ridge separating the properties of the plaintiff and
defendant No.2, which was destroyed when the property was
reclaimed. The Resurvey is completed. The plaintiff did not file an
appeal. There is no prayer to correct and modify the resurvey. The
2nd defendant did not commit any trespass into the property of the
plaintiff. Plaintiff has constructed fencing on the northern side of
his property and the property of the defendant is situated on the
further northern side of the said fencing.
5. The suit was decreed ex parte on 15.01.2000. Thereafter, the ex
parte decree was set aside in CMA 153/2000 filed by the 2nd
defendant, and thereafter, the suit was dismissed after trial. The
2025:KER:22558
plaintiff filed A.S No.122/2006 before the First Appellate Court,
and the same was allowed as per judgment and decree dated
28.02.2007, setting aside the judgment and decree of the Trial
Court and remanding the matter back to the Trial Court directing
the Trial Court decide the question of possession over the plaint
schedule property. Thereafter the suit was dismissed again as per
judgment and decree dated 18.01.2008. A.S No.329/2010, filed by
the plaintiff with an application to condone the delay of 994 days,
was dismissed on the refusal to condone the delay. The plaintiff
filed R.S.A NO.321/2012 and this Court allowed the RSA setting
aside the judgment and decree passed by the First Appellate
Court and directed the First Appellate Court to dispose of the
appeal. Thereafter, the First Appellate Court passed judgment
dated 30.08.2014 remanding the matter back to the Trial Court.
The defendants 1 and 3 together and the 2nd defendant separately
filed FAO(RO) Nos. 23&30/2015 before this Court and this Court
by judgment dated 05.09.2018 remanded the matter back to the
2025:KER:22558
First Appellate Court permitting the plaintiff to file an application
for amendment and permitting to adduce fresh evidence to justify
the amended reliefs. It is ordered that the party shall be given the
opportunity to produce additional evidence and take out a
commission, if necessary, to identify the property. Thereafter, the
impugned judgment was passed by the First Appellate Court
dismissing the appeal. It is the said judgment dated 08.02.2024
of the First Appellate Court which is challenged by the legal heir of
the plaintiff in this Regular Second Appeal.
6. I heard the learned Counsel for the appellant, Sri.B Krishna Mani,
the learned Counsel for the 2nd respondent, Sri.S Rajan, and the
learned counsel for the respondents 1 and 3, Sri S. R.Prasanth.
7. The suit was filed on 16.01.1995. The plaintiff had several
opportunities to identify the plaint schedule properties. During
the pendency of the suit Re survey was finalized. The plaintiff did
not challenge the resurvey. In FAO (R.O) No.23&30/2015, this
Court remanded the matter back to the First Appellate Court,
2025:KER:22558
finding that despite giving opportunities, the plaintiff did not take
any step at the appropriate time to amend the plaint or to get the
properties properly identified. It is found that a portion of plaint
schedule property was acquired for the formation of a public road,
and hence, identification of the property is essential for an
effective decision in the case. Considering the fact that the
litigation started in the year 1995, the matter was remanded to the
First Appellate Court instead of remanding the matter to the Trial
Court. Going by the judgment of this Court in FAO (R.O)
No.23&30/2015, it is clear that the properties are not properly
identified before the Trial Court. After remand as per the judgment
in FAO (R.O) No.23&30/2015, the property was measured again
and Ext.C3 Report, C3 (a) and C3(b) Plans were obtained.
Ext.C3(a) Plan was prepared as per the old survey. Ext. C3(b) plan
was prepared as per Re survey. It is in Ext.C3 (a) plan alone the
Plaint schedule properties have been identified. But in Ext.C3
report and C3(a) Plan, there is no report that plaint D and E
2025:KER:22558
schedule property identified therein are part of the property of the
plaintiff. PW7, who is the Surveyor assisted PW6 Advocate
Commissioner admitted in Cross examination that he did not
verify the title deeds of defendants 1, 2 and 3 and did not measure
their properties. The defendants' properties were not plotted in
Ext.C3(a) Plan. Ext.C3 Report and C3(a) Plan do not give any
indication that the properties fall under the title of the plaintiff. The
First Appellate Court found that the defendants' properties were
not scheduled, which violated the mandate of Order 7 Rule 3 CPC
as per the law laid down by this Court in Nandakumara Varma v.
Usha Varma 2015 (1) KLJ 73. In a suit for declaration of title and
recovery of possession the entire burden is on the plaintiff to
identify the properties claimed by the plaintiff and to prove his title
over the same. The plaintiff failed to discharge his burden to
identify plaint D and E schedule properties, and he could not
obtain sufficient evidence for fixation of boundaries, in spite of
granting several opportunities to the plaintiff. The First Appellate
2025:KER:22558
Court rightly held that the plaintiff failed to prove his title over
plaint D and E schedule properties. There is no perversity in the
finding of the First Appellate Court. There is no substantial
question of law involved in the matter.
8. Accordingly, the Regular Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Jma/
2025:KER:22558
PETITIONER EXHIBITS
Receipt Receipt issued by Kerala Legal Services
Authority, dated 21-11-2024
