Kerala High Court
Jom.C.Michael vs P.M.Joseph on 6 October, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:72974
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 6TH DAY OF OCTOBER 2025 / 14TH ASWINA, 1947
RFA NO. 343 OF 2017
AGAINST THE JUDGMENT AND DECREE DATED 21.06.2017 IN OS
NO.45 OF 2015 OF SUB COURT, THODUPUZHA
APPELLANT/PLAINTIFF:
JOM.C.MICHAEL
AGED 44 YEARS, S/O MICHAEL, RESIDING AT
CHAMAKALAYIL HOUSE, MUTTOM VILLAGE, THODUPUZHA
TALUK, IDUKKI DISTRICT-685587
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.P.M.NEELAKANDAN
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
RESPONDENTS/DEFENDANTS:
1 P.M.JOSEPH
AGED ABOUT 74 YEARS, KANATHUMKALLIL HOUSE, MUTTOM
VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT
CHAMAKALAYIL HOUSE, OLAMATTOM KARA, THODUPUZHA
VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT-685587.
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R.F.A. No.343 of 2017
-: 2 :-
2 ANICE
W/O P.M.JOSEPH, AGED 67 YEARS, KANATHUMKALLIL
HOUSE, MUTTOM VILLAGE, THODUPUZHA TALUK, NOW
RESIDING AT CHAMKALAYIL HOUSE, OLAMATTOM KARA,
THODUPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI
DISTRICT - 685587
3 REENA MINI
AGED 42 YEARS, D/O P.M.JOSEPH, KANATHUMKALLIL
HOUSE, MUTTOM VILLAGE, THODUPUZHA TALUK, NOW
RESIDING AT CHAMAKALAYIL HOUSE, OLAMTTOM KARA,
THODUPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI
DISTRICT - 685587
4 MATHEW MABIE
S/O P.M.JOSEPH, KANNATHUMKALLIL HOUSE, MUTTOM
VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT
CHAMAKALAYIL HOUSE, OLAMATTOM KARA, THODUPUZHA
VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT-
685587.
BY ADVS.
SRI.K.C.CHARLES
SMT.DEEPA NARAYANAN
SHRI.K.JAYESH MOHANKUMAR
SRI.M.POLY MATHAI
SRI.PUSHPARAJAN KODOTH
SMT.PREETHI. P.V.
SRI.T.SETHUMADHAVAN (SR.)
SRI.VIMAL K.CHARLES
SMT.VANDANA MENON
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
06.10.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.343 of 2017
= = = = = = = = = = = = = = = = = =
Dated this the 6th day of October, 2025
JUDGMENT
Sathish Ninan, J.
The suit for declaration of title, recovery of
possession, and other reliefs were dismissed by the trial
court. The plaintiff is in appeal.
2. The plaint consists of two schedules; the plaint A
schedule is an extent of 4.374 cents with a building
thereon, and the plaint B schedule is an extent of 31.638
cents. The plaint B schedule surrounds the plaint A
schedule. According to the plaintiff, the properties
belonged to the plaintiff and his father-in-law, Sri.Mathew,
under Exts.A1 and A2 Sale Deeds of the year 2003 and 2005
respectively. Subsequently, the said Mathew conveyed his
rights over the property to the plaintiff under Ext.A3 Sale
Deed of the year 2008.
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3. It is the plaintiff's case that the building
situated in the plaint A schedule was leased out to the 1 st
defendant by the predecessor-in-interest of the plaintiff in
the year 1989. Defendants 2 to 4 are the wife and the
children of the 1st defendant. The plaintiff was unsuccessful
in a rent control proceeding initiated against the 1 st
defendant for eviction, on the defence plea of being in
possession of 30 cents of property including the building
described in the plaint A schedule, under an agreement for
sale with the predecessor of the plaintiff in the year 1974.
4. Though subsequently the 1st defendant had filed a
suit against the plaintiff as O.S.No.139 of 2009 for
specific performance of the alleged agreement for sale, the
suit was dismissed for default in the year 2011. It is
thereafter that the present suit has been filed in the year
2015, seeking declaration of title over the plaint A and B
schedule properties, for recovery of possession of the
plaint A schedule property, for prohibitory injunction
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against trespass into the plaint B schedule property and for
damages for use and occupation.
5. The 1st defendant filed a written statement denying
the alleged lease arrangement. He claimed to be in
possession and enjoyment of 30 cents of land with the
residential building therein, under an oral agreement for
sale. He also raised a plea of adverse possession and
limitation.
6. Defendants 2 to 4 jointly filed a separate written
statement. They set up an oral agreement for sale with the
predecessor-in-interest of the plaintiff, which allegedly
was not honoured by the plaintiff's predecessor. Thereupon,
the 2nd defendant trespassed into the plaint schedule
property in the year 1968 and started residing in the
building thereon. They also raised a plea of adverse
possession and limitation. It was also contended that the
suit is not maintainable in view of the dismissal for
default of the earlier suit filed by the plaintiff as
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O.S.No.132 of 2006, against the defendants, for prohibitory
injunction against trespass. They also disputed the identity
of the plaint schedule property.
7. The trial court turned down the plea of adverse
possession and limitation. The plea of bar of suit under
Order II Rule 2 of the Code of Civil Procedure was also held
against. However, holding that the plaintiff has failed to
prove the identity of the property, the suit was dismissed.
8. We have heard Shri.P.B. Subramanian, the learned
counsel for the appellant-plaintiff and Shri.T.
Sethumadhavan, the learned Senior Counsel for the
respondents-defendants.
9. The points that arise for determination in this
appeal are:
(i) Is the challenge raised by the defendants regarding the identity of
the property, of substance?
(ii) Is the plaint schedule property identifiable?
(iii) Does the decree and judgment of the trial court warrant any
interference?
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10. Shri.P.B. Subramanian, the learned counsel
appearing for the appellant, argued that, on the facts and
circumstances of the case, the trial court ought to have
found that there could be no dispute with regard to the
identity of the property. The very claim of the defendants
is one of an agreement for sale with the predecessor of the
plaintiff. There were previous litigations between the
parties. The parties are very much aware of the identity and
the challenge on identity lack merits.
11. Shri.T. Sethumadhavan, the learned Senior Counsel
appearing for the respondents, relying upon a host of
decisions including, Union of India v. Vasavi Cooperative Housing
Society Ltd. [(2014) 2 SCC 269], contended that in a suit for
declaration of title and possession, the plaintiff has to
succeed on the strength of his own title and not on the
weakness of the defence. Further, relying on the judgment of
this Court in Aliyar v. Raju v. Vayalat [2016 (1) KHC 763], the learned
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senior counsel argued that, when even according to the
plaintiff there is mistake in the boundary descriptions in
his title deed, without rectification of the same, the
relief of declaration of title could not be granted.
12. The legal proposition that in a suit for
declaration of title the plaintiff cannot march a victory by
relying on the weakness of defence but has to succeed on the
strength of his own title, is too well established. Here,
the plaintiff claims title over the property under Ext.A3
Sale Deed. Exts.A1 and A2 are the prior title deeds. The
suit was dismissed by the trial court on the sole finding
that the plaintiff failed to prove the identity of the
plaint schedule property.
13. At paragraph No.9A of the plaint it is
specifically pleaded that there is mistake in the eastern
and western boundary descriptions of the property. The
correct boundary descriptions were also narrated. The
plaintiff had earlier initiated a rent control proceedings
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as R.C.P.No.2 of 2000, seeking eviction of the 1st defendant
from the building situated in the plaint A schedule
property. Therein, the contention of the 1st defendant was
that he had an oral agreement for sale in respect of 30
cents of property including the building in question. Hence
it is evident that the 1 st defendant acknowledged the title
of the plaintiff and that there was no dispute regarding the
identity of the property. The plea of the 1 st defendant was
upheld by this Court as per Ext.A18 judgment in R.C.R.No.83
of 2008.
14. The rent control proceeding was followed by a suit
by the 1st defendant herein against the plaintiff and his
predecessors, as O.S.No.139 of 2009, seeking the relief for
specific performance in respect of the property. On
04.06.2011, the suit was dismissed for default. Ext.A14 is
the judgment.
15. Even in the present case, the plea of the 1 st
defendant is based on the alleged oral agreement for sale in
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respect of the building and the property. Though defendants
2 to 4 have set up another oral agreement for sale, still,
it is again another alleged agreement for sale in respect of
the property, under the predecessors of the plaintiff. It is
their pleading that since the predecessors of the plaintiff
failed to honour the agreement the 2nd defendant trespassed
into the property. However such case is given up by DW1. In
cross examination it was deposed thus,
"പത കയ ൽ 2 ആ പത അനത വസ
ഉടമകളമ യ വസത റവ ങനതസ ബദ ച
ഒര കര റ ൽഏർത$ടഎനപറയനതശര
. (Q) അല. കര യ
ർഉണ
ണ+യ. (A)
ല
ആ കര ർ ന ട ക തതക ണഅമയ സണ2 ദരങള
പണ വ ശ ച ത മസ ചഎനപത
. (Q) അല
കയ. ൽപറയനതശര
ക ര9ങൾ യ ണ+
മനസ ല ക തതപറഞത
. (A)." +
16. The following deposition of DW1 elicited in cross
examination reveals that there cannot be any dispute
regarding the identity of the property. The relevant
deposition reads:
"വ ദ . അന9
ണയ അന9 യപട യ A പട അറ ക
കവസകള യ വ ടഇര കനസല
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അതല (Q) അതത (A). RCP 2/2000 ട ത ക .
ട ട ഒഴ $കനത നണലതക ട ത
(Q) അതത (A). ഞങൾ അവക . അത ഈയcase ൽത$ട
ശത$ടനവസഅറ
വസകൾ ആ+. ആ വസകള ൽ ഞ .
ങൾഎത ർകകവശ വക ശ ഉനയ കന
അത ഈ case ത ലവ ദ തകത തരയ ണ+ .(A)" .......
. (Q) വ ദ തകത തരയ +
"അമ ക ക P.M.സമയ
വശ എട Francis, Mathew Michle എനവരതട
. അവര
ഉടമസതയ ൽആയ രന ൽ ന (Q) ദഅറ
ന അതലവ ല.ട യത
കതയറക
(A)" .... "ഈ case ൽത $ ട വ സ കൾആ+എനആധ രങൾവ യ ചണ$
മനസല യ." ...... "AB പട ക വ സകളതടഏതഭ
(Q) മദ9ഭ
ഗ ഗ +തകട
. ട
(A) ത ക ട ട തKന(Q)
ലവശവ
അറബ
യ ലകവസകൾആണ+
. (A)"
17. Thus, there is an unambiguous acknowledgment of the
title of the plaintiff and his predecessors and on the
identity of the property. It is very important to note that,
admittedly, the defendants do not own or hold or possess any
property apart from the property of the plaintiff, adjoining
or near the plaint schedule property. After having claimed
right over the property based on an agreement for sale and
by adverse possession, the challenge of the defendants
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against the identity of the property lacks bonafides and
merit. Though defendants 2 to 4 raised a plea of collusion
between the plaintiff and the 1 st defendant, but for the bald
plea, the same remained unsubstantiated. On the contrary,
there is a categoric admission by DW1 during cross
examination that the 1st defendant is still residing with the
other defendants. The deposition reads thus,
"പ ത വഞങളതടഒ$
." ആ+ത മസ
Therefore, evidently, the contention lacks bonafides.
Neither the father nor the mother, namely defendants 1 and
2, mounted the witness box.
18. For the reasons as above, we find that there is no
scope for any dispute/challenge on the identity of the
property, between the parties. It is the property in the
possession of the defendants which is the disputed property.
There being no claim of holding/possessing any other
property adjoining the property in question, the dispute on
identity is found to be baseless. The finding of the trial
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court to the contrary is liable to be set aside and we do
so.
19. With regard to the contention raised relying on
the decision in George v. Annakutty [2016 (2) KLT 656] that without
rectification of the erroneous boundary description in the
title deed the suit for declaration of title cannot be
maintained, it is to be noted that, that was a suit between
the parties to the document. It was under such circumstance
that this Court, on the facts of that case held that the
mistake in document is to be got rectified. The said
decision has no application to the facts of the case.
20. With regard to the possession of the property, PW2
is the person, who has done agricultural works, etc., in the
property. He has deposed that the works were done under the
plaintiff. On a reading of his evidence, we do not find any
reason to disbelieve his version. Ext.A4 series starting
from the year 1985 are the land tax receipt and Ext.A5
series starting from the year 1982 are the building tax
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receipts issued by the local authority. Both are in the
plaintiff's name. The evidence of PWs1 and 2, coupled with
Ext.A4 series land tax receipts and Ext.A5 series building
tax receipts corroborate the claim of the possession of the
property by the plaintiff. Further, the following deposition
of DW1 in cross examination fortifies the conclusion
regarding possession of the plaintiff:
"വ ദ യ ത ട കകവശ ഇര കനവസവ ൽഉളവ9കങ
ന ങതളയ മറ criminal
പത കള ക case ഉണ യ രനതല(Q) ഉണ യ രന. (A)
അത ൽഞങതളശ കച Petition തക ട
. Revision ടണ."...."വസവ ൽഉള
ക +ർഞങൾഉണ
. ണരഖയ
കയതല.+
വർഷങൾകമൻപ ഉണ കയത +. ആ
സമയത വസവ തKഉടമആര. യ(Q)
രനP.M. Francis ഉ Mathai
Michael ഉ .(A)" ......... "വ ദ യ തടണപര ൽത റ ധ ര നണശഷ വ
ത ക ട ട തKകരവ വ(Q)
ദ യതലതക
ഒന പറയട നരനത
.ല(A)"
21. It is not in dispute that the building in the
property does not exist now. There is no evidence as to when
it got destroyed. There is also no evidence with regard to
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the claim for damages. In the circumstances, the claim for
damages can only be disallowed, and we do so.
22. No other contentions are urged. On the above
discussions, apart from the relief of damages, the plaintiff
is entitled for the other reliefs claimed.
In the result, the appeal is allowed. The decree and
judgment of the trial court are set aside. The plaintiff is
granted a decree declaring his title over the plaint A and B
schedule properties and for recovery of possession of the
plaint A schedule property from the defendants. The
defendants are restrained by a decree of prohibitory
injunction from trespassing into the plaint B schedule
property. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
yd
