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.
2025:KER:72974
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:
2025:KER:72974
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
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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.
2025:KER:72974 R.F.A. No.343 of 2017 -: 2 :-
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 2025:KER:72974 R.F.A. No.343 of 2017 -: 3 :- 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 2025:KER:72974 R.F.A. No.343 of 2017 -: 4 :- 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?
2025:KER:72974 R.F.A. No.343 of 2017 -: 5 :-
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 2025:KER:72974 R.F.A. No.343 of 2017 -: 6 :- 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 2025:KER:72974 R.F.A. No.343 of 2017 -: 7 :- 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 2025:KER:72974 R.F.A. No.343 of 2017 -: 8 :- 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
2025:KER:72974
R.F.A. No.343 of 2017
-: 9 :-
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 2025:KER:72974 R.F.A. No.343 of 2017 -: 10 :- 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 2025:KER:72974 R.F.A. No.343 of 2017 -: 11 :- 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 2025:KER:72974 R.F.A. No.343 of 2017 -: 12 :- 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 2025:KER:72974 R.F.A. No.343 of 2017 -: 13 :- 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