1. Plaintiff, in a suit for permanent prohibitory injunction and a declaration that the execution of sale deed in respect of the plaint schedule property is not binding upon him, has come up aggrieved by the concurrent findings against him by the Munsiff-Magistrate’s Court, Mannarkkad in OS No.91 of 2004 as affirmed by the Sub Court, Ottappalam in AS No.86 of 2010.

2. The brief facts necessary for the disposal of the appeal are as follows:

                  The plaint schedule property was originally held by the plaintiff's father, Abdu, along with the other properties on leasehold right, which was subsequently assigned in favour of the plaintiff's mother, Pathumma, by Deed No.4256/1975 of SRO, Mannarkkad. Thereafter, Jenmam right of the property was obtained by Pathumma from Land Tribunal, Mannarkkad as per Purchase Certificate No.164/94. Later, by gift deed No.1445/2004 of SRO, Mannarkkad, the mother of the plaintiff transferred the right title and interest over the plaint schedule property in favour of the plaintiff and thus he is in possession of the property. Defendants 1 to 3 are having properties on the eastern side of the plaint schedule property. On the northern side of the plaintiff's mother's property covered by the 1975 deed, there was a way and on the eastern side of the said property, there was a footpath. Later, the pathway and the footpath were developed into a road. Out of the 2.53 Acres of land covered by the plaintiff's mother's title deed, excluding the plaint schedule property, the remaining property was developed as a rubber plantation. The plaintiff further contended that his mother had left some property on the western side of the plaint schedule property and thus the present western side road was formed. The defendants unnecessarily raised a claim that the title of the plaintiff's mother covered by the 1975 deed extends only to the road lying on the western side of the plaint schedule property and therefore, they disputed the plaintiff's right over the plaint schedule property. On 11.7.2004, the defendants tried to trespass into the plaint schedule property and hence the suit. Later by I.A.No.911/2006, the suit was amended by stating that the 3rd defendant had executed a deed in favour of the 4th defendant in respect of the plaint schedule property as per sale deed No.1778/2004 of SRO, Alanallur and the same is not binding upon him. The defendants entered appearance and filed written statement contending that the property shown in the plaint schedule is not in existence, and the plaintiff's mother's property covered by the 1975 deed does not extend beyond the Panchayat road lying on the western side of the plaint schedule property. Going by the boundaries prescribed in the Purchase Certificate, the plaintiff does not have a title over the property. On behalf of the plaintiff, Exts.A1 to A9 documents were marked and PW1 and PW2 were examined. On behalf of the defendants, Exts.B1 to B5(b) documents were marked and DW1 was examined. Exts.C1 to C9 are the plans and reports etc. submitted by the Advocate Commissioner. Certified copy of document (Deed) No.1778/2004 of SRO, Alanallur dated 13.7.2004 was marked as Ext.A9. The trial court framed the following issues for consideration:

                  1)       Whether the suit is properly valued for the purpose of Court fee and jurisdiction?

                  2)       Whether the plaint scheduled property is identifiable? If so, what is the correct identity of plaint schedule property?

                  3)       Whether the plaintiff has got right and possession over plaint scheduled property?

                  4)       Whether the registered document bearing No.778/2004 of SRO, Alanallur is null and void one?

                  5)       Whether the plaintiff is entitled to get the relief prayed for?

                  6)       Relief and cost?

                  The Advocate Commissioner appointed by the court for local inspection identified the plaintiff's property and reported that the plaintiff's property and his mother's property are separated by a well- defined road. However, the trial court rejected the report of the Commissioner and found that the plaintiff failed to establish the title over the property. In holding so, the court found that Ext.A7 possession certificate is not proved by examining the person. Accordingly, the suit was dismissed. Aggrieved, the plaintiff preferred AS No.86/2010, which was dismissed by the Sub Court, Ottappalam by judgment dated 30.6.2015 and hence, the present appeal.

3. On 21.8.2015, this Court admitted the appeal on the following substantial questions of law:

                  (i) Whether the courts below committed grievous error in dismissing the suit especially when extent and boundaries of the plaint schedule property is tallied with Ext.A1 gift deed?

                  (ii) Whether the court below could dismiss the suit without touching the question regarding the title over the plaint schedule property and who possessed the same?

                  (iv) Whether the courts below erred in holding that the plaintiff has not succeeded in proving the identity of the property in spite of clear and cogent evidence to the contrary?”

4. Heard Sri.Santheep Ankarath, the learned counsel appearing for the appellant/plaintiff and Sri.K.M.Sathyanatha Menon, the learned counsel appearing for the respondents/defendants.

5. Sri.Santheep Ankarath, the learned counsel appearing for the appellant, contended that the findings of the courts below are nothing but perverse. He pointed out that when the extent and boundaries of the plaint schedule property tallied with Ext.A1 Deed, the trial court could not have dismissed the suit without touching the question regarding the title over the plaint schedule property and who possessed the same. Since the Advocate Commissioner appointed for local inspection had clearly identified the plaint schedule property and, in view of the fact that the defendants obstructed the Advocate Commissioner from measuring the property held by them, the courts below ought to have drawn an adverse inference. Further, the courts below also erred in not granting the relief for declaration, especially since the 3rd defendant had no title over the plaint schedule property to convey to the 4th defendant. Alternatively, the learned counsel for the appellant also pointed out that if, under any circumstances, this Court finds that a remand is required, necessarily, the property held by the 3rd defendant should also be measured out for identifying the extent involved in the hands of the 3rd defendant.

6. Per contra, Sri.K.M.Sathyanatha Menon, the learned counsel appearing for the respondents, countered the submissions of the learned counsel for the appellant and submitted that a remand as prayed for is not necessary in this case. He further pointed out that there is no illegality or perversity in the findings of the courts below. He would point out that going by the boundaries described in the Purchase Certificate, the plaintiff had no property towards the western side of the pathway. It is further pointed out that going by the title deed of plaintiff’s mother Pathumma, the eastern side is shown as the compound wall and hence there is no possibility of the plaintiff obtaining the plaint schedule property. Moreover, the boundaries mentioned in the Purchase Certificate do not tally with that of the prior deed of 1975. It is thus pointed out that when the property is identifiable with well-defined boundaries, necessarily, the same would prevail over the description. In support of his contention, relied on the decision of this Court in Krishnan Kartha v. Pariathu [1955 KHC 130].

7. Since the learned counsel for the respondents resisted the plea for a remand, it became inevitable for this Court to consider the substantial questions of law on merits and hence, this appeal was extensively heard.

8. On an anxious consideration of the rival submissions raised by both sides and on perusal of the records of this case, this Court is inclined to conclude that there are certain infirmities in the argument raised by learned Counsel for the respondents. The question whether the suit requires a fresh consideration will depend ultimately on how this Court concludes on the infirmities as pointed out above. The infirmities are summarized as follows:

                  i) 2.60 Acres of property is held by the 3rd defendant. For reasons best known, the 3rd defendant did not permit the Advocate Commissioner to identify the 2.60 Acres of land held by him under a valid title. His objection was that the entire 30 Acres of land which is the total extent covered by the parent deed should be identified to find out the exact location of 2.60 Acres of land. It passes one's comprehension as to why the entire 30 acres should be measured out for identifying 2.60 acres held by the 3rd defendant.

                  ii) Surprisingly, the 3rd defendant did not step into the box. The 1st defendant, who was examined on behalf of the 3rd defendant, categorically admitted in page 13 of his oral testimony that the entire 2.60 Acres of land held by the 3rd defendant has been sold out by him. No explanation is caused for not permitting the measurement of the property.

                  iii) As regards the possession of the plaintiff's predecessor, Ext.A4 report in the land ceiling case clearly shows that the property is in possession of the plaintiff's mother, Pathumma. Ext.A3 is the Purchase Certificate in her favour. Going by Section 72K of the Kerala Land Reforms Act, 1963, the Purchase Certificate constitutes as a conclusive proof regarding possession and title of the property.

                  iv) The argument raised on behalf of the learned counsel for the respondents is that the eastern boundary in Ext.A3 Purchase Certificate is shown as Panchayat way and, therefore, it is not possible for the mother of the plaintiff to have any property beyond that. But in Ext.C1 report of the Advocate Commissioner, it is clearly stated that the plaint schedule property was properly identified with reference to the document of title and the purchase certificate. At page 5 of the report, the advocate commissioner clearly notes as follows:

                  

                  The plan annexed along with the report also identifies the plaint schedule property. It appears that the objection to the said report was that the plaint schedule property was not properly identified by the Advocate Commissioner because originally the plaintiff's father had no title over the property in order to convey to his mother in the year 1975.

9. Having summarized the infirmities, this Court proceeds to consider whether the objection raised by the learned Counsel for the respondents is sustainable or not. It is important to note that irrespective of the conferment of right title and interest over the plaint schedule property in favour of the plaintiff's mother, the fact remains that the plaintiff's mother obtained a Purchase Certificate from the Land Tribunal, Mannarkkad, which itself is a conclusive proof regarding title and possession of the plaintiff's mother- Pathumma, over the property. This fact, coupled with the conscious silence on the part of the 3rd defendant in not adducing any further evidence by offering himself for cross-examination, persuades this Court to conclude that the 3rd defendant had something to conceal from the Court, which, if disclosed, would have been detrimental to his case. This Court cannot remain oblivious of the fact that the 1st defendant, who offered himself for cross-examination on behalf of the 3rd defendant, specifically admitted the fact that 2.60 Acres of land in possession of the 3rd defendant had been completely sold out by him, which would lead to an irresistible conclusion that the 3rd defendant had no property left in his possession to be conveyed to the 4th defendant and this clearly indicates that the plaintiff was justified in asking for a declaratory relief stating that document No.1778/2004 of SRO, Alanallur is not binding upon him.

10. The law as regards a claim for a declaratory relief qua a document executed by a person, who does not have any title over the property, is covered by the decision of the Supreme Court in Hussain Ahmed Choudhury & Ors. v. Habibur Rahman (Dead) Through LRs & Ors. [(2025 (3) KLT 180 (SC) = 2025 KLT OnLine 1822 (SC) = 2025 KHC OnLine 6381= 2025 SCC OnLine 892). Therefore, once the trial court held that the court fee paid on the suit is correct in terms of Section 25(b) of the Kerala Court Fees and Suit Valuation Act, 1959, the consequential decree for declaratory relief ought to have been granted by the trial court.

11. Equally so, this Court finds it difficult to subscribe to the argument of Sri.K.M.Sathyanatha Menon, the learned counsel appearing for the respondents, that going by the boundaries prescribed in Ext.A2, there is no property left with Pathumma beyond the eastern side, because of the report of the Advocate Commissioner. Since there was some objection to Exts.C1 and C2, another inspection was carried out by the Advocate Commissioner and Ext.C5 report and Ext.C6 plan were filed. A cursory glance at the report would clearly show the existence of the road dividing the property into two. Apart from Exts.C5 and C6, a final report and plan were also solicited in the form of Exts.C8 and C9. Ext.C8 would also equally support the claim of the plaintiff. In Ext.C8 the Advocate Commissioner found that an extent of 19.10 cents was lost for the formation of the road and then, based on that the Advocate Commissioner identified the plaint schedule property and concluded that an extent of 39.45 cents constitutes the plaint schedule property in survey No.3/6B part and 1 Acre 85 Cents is still in possession of the plaintiff's mother in the same survey number. This clearly indicates that the total extent of the property is separated by a road, which gets connected with the Panchayat road on the southern side.

12. Moreover, the claim of the defendants is solely based on the contention that, going by Ext.A2, the plaintiff's mother did not have any property beyond the eastern side. But then, no explanation is caused as to why the 3rd defendant did not permit the Advocate Commissioner to identify the 2.60 Acres of land, which is sold by him to third persons. At any rate, the execution of Ext.A9 document was on 13.7.2004 and that too on the same date of filing of the suit. Moreover, it has come out in evidence that on 15.5.2004, the plaintiff had filed a caveat before the Munsiff-Magistrate Court, Mannarkkad and it is after receipt of the caveat petition, the 3rd defendant proceeded to transfer the property, which included the plaintiff's property, in favour of the 4th defendant. Therefore, the plaintiff was certainly entitled to the declaratory relief as well. In the light of unimpeachable evidence adduced by the plaintiff and also in the light of the report of the Advocate Commissioner and also the failure of the 3rd defendant to tender evidence, this Court finds that the objection raised by the learned counsel for the respondents is not tenable. Moreover, the decision in Krishnan Kartha (supra) does not apply to the facts of the present case and thus is clearly distinguishable.

13. As a result of the above discussion, this Court is inclined to answer the substantial questions of law in favour of the appellant/plaintiff as follows:

                  (i)       The courts below committed serious error in dismissing the suit, especially when the extended boundary of the plaint schedule property tallied with Ext.A1 Deed.

                  (ii)      The courts below could not have dismissed the suit, especially in the light of the fact that the Commissioner has clearly identified the property and also in the absence of any contra evidence to show that the 3rd defendant had property remaining in possession after the sale of entire 2.60 Acres of land which is clearly mentioned by the 1st defendant.

                  (iii)     The plaintiff has thus succeeded in proving the identity of the property and therefore, the courts below erred in holding that the plaintiff has not succeeded in proving the identity of the property.

                  Resultantly, this Court holds that the appellant/plaintiff is entitled to succeed and accordingly, the judgment and decree dated 30.6.2015 in AS No.86/2010 of the Sub Court, Ottappalam and the judgment and decree dated 31.7.2010 in OS No.91/2004 of the Munsiff-Magistrate's Court, Mannarkkad are set aside. OS No.91/2004 on the files of the Munsiff-Magistrate's Court, Mannarkkad will stand decreed and the plaintiff is granted an injunction restraining the defendants from trespassing into the plaint schedule property, and it is further declared that document No.1778/2004 is null and void and not binding on the plaintiff. The plaintiff will be entitled to costs throughout the proceedings.