Kerala High Court
Salim C.S vs Subaida Beevi on 23 May, 2025
RSA No.153 of 2025 1 2025:KER:35690
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 23RD DAY OF MAY 2025 / 2ND JYAISHTA, 1947
RSA NO. 153 OF 2025
AGAINST THE JUDGMENT AND DECREE DATED 22.10.2024 IN AS NO.2
OF 2021 OF ASSISTANT SESSIONS COURT,PUNALUR, KOLLAM ARISING OUT OF
THE JUDGMENT DATED 21.12.2019 IN OS NO.6 OF 2010 OF MUNSIFF COURT,
PUNALUR
APPELLANT(S)/APPELLANTS/PLAINTIFFS:
1 SALIM C.S.
AGED 70 YEARS, S/O.SULAIMAN RAWTHER,
SHAMEER MANZIL, MANKODU, PATHIRIKKAL MURI,
PATHANAPURAM VILLAGE, KOLLAM DISTRICT,
PIN - 691015
2 JAMEELA BEEGUM
AGED 68 YEARS
W/O.SALIM C.S. SHAMEER MANZIL, MANKODU,
PATHIRIKKAL MURI, PATHANAPURAM VILLAGE,
KOLLAM DISTRICT., PIN - 691015
BY ADVS.
T.R.HARIKUMAR
ARJUN RAGHAVAN
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
1 SUBAIDA BEEVI
D/O.MUHAMMED BEEVI,
NEDUMPARAMBU MELETHIL VEEDU,
PATHIRIKKAL MURI, PATHANAPURAM VILLAGE,
KOLLAM DISTRICT, PIN - 691015
2 UMMER KASIM
NEDUMPARAMBU MELETHIL VEEDU,
PATHIRIKKAL MURI, PATHANAPURAM VILLAGE,
KOLLAM DISTRICT., PIN - 691015
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
23.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA No.153 of 2025 2 2025:KER:35690
EASWARAN S., J.
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R.S.A. No.153 of 2025
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Dated this the 23rd day of May, 2025
JUDGMENT
The appellants herein are the plaintiffs in O.S. No.6 of 2010
on the files of the Munsiff Court, Punalur, which was instituted for
declaration and injunction. According to the appellants/plaintiffs,
the plaint schedule property having an extent of 15½ was sold by
the father of the 1st plaintiff by virtue of dhehandavilayadharam in
the year 1995. The father of the 1 st plaintiff received Rs.20,000/-
for the purpose of the marriage of his daughter Nabeesathu Beevi
and, it was on the basis of the consideration that the
dhehandavilayadharam was executed. The plaintiff contended that
paddy field having an extent of 56 cents at the eastern side of the
plaint schedule property was given to the 1st defendant by
Sulaiman Rawther, the father of the 1st plaintiff by virtue of
settlement deed No.1437/1990. There exists well defined
boundaries separating the plaint schedule property and the
property of the defendants. In the written statement preferred by
the defendants, they raised a counterclaim regarding the 56 cents
of property which they have derived by the partition deed and
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scheduled the aforesaid property and sought for a decree against
the plaintiffs from trespassing into the counter claim property. An
advocate commissioner was appointed to identify the property for
local inspection and after local inspection, the advocate
commissioner submitted his report and plan wherein both the
properties of the plaintiffs as well as the defendants were
demarcated. Based on the material evidence, the trial court framed
the following issues:
1. Whether the plaintiffs have got title and
possession over plaint schedule property as
claimed?
2. Whether the suit is maintainable?
3. Whether the plaint schedule property forms part
of counter claim schedule property as alleged?
4. Whether the plaintiffs are entitled to get declared
their title and possession as claimed?
5. Whether the plaintiffs are entitled to a permanent
prohibitory injunction as prayed for?
6. Whether the defendants are entitled to a
permanent prohibitory injunction as prayed for in
the counter claim ?
7. Reliefs and costs?
2. On appreciation of the evidence, the trial court found that
the plaintiffs/appellants were not successful in proving the title
over the property. Simultaneously, the trial court also found that
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the plaintiffs could not establish the possession over the plaint
schedule property. Considering the report of the advocate
commissioner and also the evidence on record, the trial court found
that the defendants had established right, title and interest over
the counter claimed schedule property and accordingly granted a
decree in favour of the defendants by allowing the counter claim
restraining the plaintiffs from trespassing into the plaint schedule
property. Aggrieved by the same, the plaintiffs preferred the appeal
which was also dismissed.
3. Heard Sri. T.R. Harikumar, the learned counsel appearing
for the appellant/plaintiffs.
4. The learned counsel for the appellants/plaintiffs pointed
out that inasmuch as the defendants had limited their claim in the
written statement when the counterclaim was preferred that they
have the right, title and interest over the 56 cents of land, the trial
court erred egregiously in decreeing the suit. The effect of the
decree passed by the trial court is that the counter claim
petitioners would be entitled to a decree for more than an extent
of 56 cents, which was scheduled in the counterclaim. Such a
recourse ought not have been taken by the trial court. The report
of the advocate commissioner was not properly appreciated by the
trial court as well as by the 1st appellate court.
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5. Having considered the submissions raised on behalf of the
appellants, this Court finds that there are no substantial questions
of law raised in the appeal.
6. Admittedly, the appellants/plaintiffs failed to prove the
right, title, and interest over the property, much less the possession
over the plaint schedule property. Merely because the advocate
commissioner had demarcated both the plaint schedule property
and the counterclaim property, that by itself will not entitle the
plaintiffs to claim a decree for declaration of title and mandatory
injunction. Ext.A1, by which the appellants/plaintiffs claimed title
over the property, is an unregistered document. It is now settled
law that an unregistered document cannot confer title over the
immovable property. Therefore, the irresistible conclusion is that
the plaintiff failed to prove the right, title, and possession of the
property. Both courts have rightly declined the prayer for
declaration of title and injunction.
Resultantly, the finding is that no substantial question of law
arises for consideration in this appeal. Accordingly, the appeal fails
and is dismissed. No costs.
Sd/-
EASWARAN S.
JUDGE
NS
