Kerala High Court
Ayyappan Kesavan (Died Lrs Impleaded) vs Karthyayani, (Died Lhrs Impleaded) on 24 September, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2025 / 2ND ASWINA, 1947
RSA NO. 497 OF 2003
[AGAINST THE ORDER/JUDGMENT DATED 22.10.2002 IN AS NO.19 OF
1990 OF SUB COURT, KOTTARAKKARA ARISING OUT OF THE ORDER/JUDGMENT
DATED 10.01.1990 IN OS NO.316 OF 1984 OF MUNSIFF COURT,
KOTTARAKKARA]
APPELLANT/S:
1 AYYAPPAN KESAVAN (DIED LRS IMPLEADED)
POIKAVILA VEEDU, THUDANTHALA MURI, UMMANNOOR VILLAGE.
2 OMANA
AGED 62 YEARS
D/O. NANI, POIKAVILA VEEDU, THUDANTHALA MURI, UMMANNOOR
VILLAGE.
3 ADDL. A3 MANDAGINI (DIED, LHRS RECORDED)
W/O. LATE AYYAPPAN KESAVAN, POIKAVILA VEEDU,
THUNDATHALA MURI, UMMANNOOR VILLAGE. (APPELLANTS 4 TO 8
ARE RECORDED AS THE LEGAL HEIRS OF DECEASED 3RD
APPELLANT AS PER THE ORDER DATED 07/12/2018 ON VIDE
MEMO DATED 16.11.2018)
4 ADDL. A4 SADANANDAN
S/O. LATE AYYAPPAN KESAVAN, POIKAVILA VEEDU,
THUNDATHALA MURI, UMMANNOOR VILLAGE.
5 ADDL. A5 SULOCHANA
D/O. LATE AYYAPPAN KESAVAN, POIKAVILA VEEDU,
THUNDATHALA MURI, UMMANNOOR VILLAGE.
6 ADDL. A6 THULASI BAI
D/O. LATE AYYAPPAN KESAVAN, POIKAVILA VEEDU,
THUNDATHALA MURI, UMMANNOOR VILLAGE.
7 ADDL. A7 LEELAMANY
D/O. LATE AYYAPPAN KESAVAN, POIKAVILA VEEDU,
THUNDATHALA MURI, UMMANNOOR VILLAGE.
8 ADDL. A8 SATHI BAI
D/O. LATE AYYAPPAN KESAVAN, POIKAVILA VEEDU,
2025:KER:70384
RSA No.497 OF 2003 2
THUNDATHALA MURI, UMMANNOOR VILLAGE. (ADDTIONAL
APPELLANTS 3 TO 8 ARE IMPLEADED AS THE LEGAL
REPRESENTATIVES OF THE DECEASED FIRST APPELLANT AS
PER ORDER DATED 11.08.04 IN IA 1488/04)
BY ADVS.
SRI.P.R.VENKATESH
SRI.G.KEERTHIVAS
RESPONDENT/S:
1 KARTHYAYANI, (DIED LHRS IMPLEADED)
D/O. KURUMPA, SIVAMANDIRAM, THUDANTHALA MURI,
UMMANNOOR MURI AND VILLAGE.
2 ADDL.SADASIVAN
S/O.KARTHYAYANI, SIVAMANDIRAM, MUTTA P.O.,
ODANAVATTOM VILLAGE,KOTTARAKARA TALUK, KOLLAM-691
512.
3 ADDL.RAVINDRAN
S/O.KARTHYAYANI,RAVI VILASOM, MUTTA P.O., ODANAVATTOM
VILLAGE,KOTTARAKARA TALUK, KOLLAM-691 512.
4 ADDL.PRABHAKARAN
S/O.KARTHYAYANI,PRATHEESH NIVAS MUTTA P.O.,
ODANAVATTOM VILLAGE,KOTTARAKARA TALUK, KOLLAM-691
512.
5 ADDL.SUMINA,
D.O.THAMARAKSHI,KYLASAM,CHOORAPOIKA, KAZHANIKKAD
P.O., KOLLAM-691 509.
6 ADDL.SUNIL,
S/O.THAMARAKSHI,SUNIL MANDIRAM,CHOORAPOIKA,
KAZHANIKKAD P.O., KOLLAM-691 509. (ADDITIONAL
RESPONDENTS R2 TO R6 ARE IMPLEADED AS LEGAL HEIRS OF
DECEASED SOLE RESPONDENT AS PER ORDER DATED
16.06.2020 IN IA.3/2018.)
BY ADVS.
SRI.K.SIJU
SRI.REJI MATHEW KAVALAYIL
SHRI.S.ABHILASH
2025:KER:70384
RSA No.497 OF 2003 3
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
18.09.2025, THE COURT ON 24.09.2025 DELIVERED THE FOLLOWING:
2025:KER:70384
RSA No.497 OF 2003 4
JUDGMENT
This Regular Second Appeal is submitted originally by the defendants 2 and 3 in O.S.No.316/1984 on the files of the Munsiff Court, Kottarakkara, which was filed by the original respondent herein, who died during the pendency of the second appeal. The suit was decreed in favour of the plaintiff against which, A.S.No.19/1990 was filed which was dismissed by the Sub Court, Kottarakkara on 22.10.2002 confirming the judgment and decree passed by the Munsiff Court, Kottarakkara. This Second Appeal is submitted against the same. (The parties are hereinafter referred to as per their status in the Original Suit.)
2. The suit was filed by the plaintiff for declaration of title and possession of the plaintiff over the plaint schedule properties and also for fixation of boundary on the north-west of plaint A schedule properties separating the properties of the defendants and also on the south-west of 'B' schedule properties belonging to the plaintiff separating 2025:KER:70384 RSA No.497 OF 2003 5 the properties of the defendants. Consequential permanent prohibitory injunction was also sought.
3. The plaint averments were as follows:
The plaintiff and the 1st defendant are sisters and the 2 nd defendant is their brother. The 3 rd defendant is the daughter of the 1st defendant (The 3rd defendant was initially not in the party array and she was impleaded based on the pleading of the 1st defendant that the subject property is transferred by the 1st defendant in favour of the 3rd defendant). The plaintiff is in possession and enjoyment of the plaint schedule properties, which she secured by way of the partition deed No.66 dated 6.1.1971 executed between the parties. Out of 1 acre 20 cents of properties which includes plaint A schedule property, the property having an extent of 80 cents was sold by the plaintiff to a third party and the remaining property having an extent of 40 cents is in possession of the plaintiff, which is included in plaint A schedule. Apart from the above, 20.25 cents of land was also secured by the plaintiff as per the said 2025:KER:70384 RSA No.497 OF 2003 6 partition deed which is shown as plaint B schedule property. The western and northern side of the plaint A schedule properties are the properties of the 2 nd defendant and the 1st defendant respectively. The southern side of plaint B schedule property is the property of the 2 nd defendant and on the western side of the property is the property of the 1st defendant. It is averred that, there are survey stones separating the plaint schedule properties.
However, the defendants are obstructing the plaintiff from putting up boundary and they are attempting to trespass into the plaint schedule properties. The suit was filed in the said circumstances.
4. The 2nd defendant filed a written statement contending that the plaint schedule shown is not correct. The suit is bad for non-joinder of necessary parties, as the persons to whom the plaintiff sold her property is a necessary party to the suit. The 1 st defendant sold the property obtained by her as per the partition deed to her daughter and the 1st defendant has no property. The 2nd 2025:KER:70384 RSA No.497 OF 2003 7 defendant is in possession and enjoyment of 20.25 cents of land on the southern side of the plaint schedule property comprised in Survey No.7/1A obtained by her as per partition deed. The 2nd defendant is in possession and enjoyment of 82 cents and excess land in Survey No.7/1A/29 as per settlement deed No.5895 of the year 1119 of Malayalam Era and the said property is clearly separated by boundaries. According to the said defendant, the properties are well demarcated and the 2 nd defendant resisted the attempt of the plaintiff to start an Arrack Shop in the plaint A schedule property near to the residence of the said defendant and the said resistance instigated the plaintiff to file the suit. In such circumstances, dismissal of the suit was sought by the defendant.
5. The 2nd defendant filed an additional written statement as well, contending that, the property of the plaintiff is in Survey No.7/1A/8 and in Survey No.7/1A/51 and that the property in Survey No.7/1A/24 belongs to the 2nd defendant. The said additional statement was 2025:KER:70384 RSA No.497 OF 2003 8 necessitated as the amendment of the plaint was carried out by the plaintiff correcting the survey numbers of the plaint schedule properties. Since it was contended that, the 1st defendant sold the property to her daughter-3rd defendant, the said daughter of the 1st defendant was impleaded and she filed a separate written statement raising similar contentions to that of the 2nd defendant.
6. The evidence in this case consists of PWs. 1 to 3, DWs.1 to 3, Exhibits A1 to A3, B1 & B2, C1 to C3 and C4 to C6. After the trial, the suit was decreed, allowing all the reliefs sought by the plaintiff and the appeal filed by the defendants against the same was also dismissed, confirming the judgment and decree passed in the suit. This appeal is submitted in such circumstances.
7. The memorandum of Second Appeal was filed raising the following substantial questions of law:
"a) When the Commission report and plan submitted in the first instant were found unacceptable after considering the objections thereto and after considering the application to set aside the same and after examining that commissioner, were the courts below justified in relying upon the self same plan and report ?
b) Is not a second commissioner is issued only on 2025:KER:70384 RSA No.497 OF 2003 9 setting aside the first commission report and plan ?
c) When a second commission is issued and plan and report obtained on identical matter, when already an earlier commission has submitted a plan and report, is it not proof of the fact that the court had found that the earlier report is not liable to be accepted or acted upon ?
d) When a second commission is issued or permitted to be issued under law, when the document of title of plaintiff does not refer to an extent and a particular survey number and the same is found included in the title deed of the defendants, can be boundary of the property claimed by the plaintiff be fixed so as to include such property also ?
e) Were not the courts below found to consider the acceptability or otherwise Exhibits C4 to C6 ?"
Subsequently, two additional substantial questions of law was also raised which are incorporated as substantial questions of law 'f' and 'g' which reads as follows:
f) When a decree for declaration of title and possession is prayed on the strength of title deed can a decree be granted on a property other than covered by the title deed ?
g) If it is a case of misdescription of property in the title deed, will a suit lie without rectifying the deed, praying for declaration of title of property other than covered by the deed ?
8. This Court admitted the Second Appeal and issued notice on the substantial questions of law raised as 'f' and 'g'.
9. I have heard the learned counsel for the appellants 2025:KER:70384 RSA No.497 OF 2003 10 and the learned counsel for the respondents.
10. When it comes to the substantial questions of law in respect of which notices were already issued by this Court, the important aspect to be noticed is that, the said questions arise in this case, in view of the fact that there is a clear difference in the survey numbers mentioned in Ext.A1 title deed of the plaintiff, in respect of the properties in possession of the plaintiff and the survey numbers mentioned in respect of the said properties while including it in the plaint schedules. It is to be noted that, as per the recitals in the schedule of Ext.A1 title deed, the plaintiff obtained rights over an extent of 1 acre 20 cents of land comprised in Survey No.7/1A/11. According to the plaintiff, out of the same, 80 cents of property were sold and she is in possession of 40 cents of property, in which, 22 cents is comprised in Survey No.7/1A/8 and 18 cents is comprised in Survey No.7/1A/24. Similarly, as per the description of plaint B schedule property, it is a property having an extent of 20.25 cents comprised in Survey No.7/1A/55, whereas, 2025:KER:70384 RSA No.497 OF 2003 11 the said property is described in Ext.A1 title deed, as the property comprised in Survey No.7/1A/51. Thus, there is clear difference between the properties referred to in the title deed of the plaintiff and the properties described as plaint schedule properties.
11. It is pertinent to note in this regard that, the declaration of title and possession over the plaint schedule properties was sought by the plaintiff based on Ext.A1 title deed. Therefore, the question that arises here, is, when the description of properties in the title deed varies from that of the plaint schedule, can a decree for declaration be granted in favour of the plaintiff, based on such title deed. The learned counsel for the appellants places reliance upon the observations made by the Division Bench of this Court in Aliyar v. Raju V. Vayalat [2016(1) KHC 763(DB)], wherein, this issue was considered, after referring to section 26 of the Specific Relief Act, 1963. After elaborately considering the statutory provisions and the decisions in this regard, it was held that, when there is mistakes in 2025:KER:70384 RSA No.497 OF 2003 12 extent, survey number, boundaries and details of anterior title deeds, the deed will have to be rectified before claiming any relief for declaration and injunction. Thus, as observed above, if there are patent errors in the deed with regard to the identification of the property, the declaration of the plaintiff's title over the property or the building cannot be granted.
12. In this case, after carefully going through the evidence adduced and the documents produced, it can be seen that, there is a clear misdescription in the title deed which is relied on by the plaintiff for seeking a decree of declaration of his title. Thus, there is a serious dispute with regard to the identity of the property and, therefore, unless that identity is established through proper evidence, by the said plaintiff, the declaration as sought, cannot be granted. Even if the deed is not rectified by resorting to section 26 of the Specific Relief Act, the identity of the property must be clearly established by adducing evidence in this regard.
2025:KER:70384 RSA No.497 OF 2003 13
13. When going through the findings entered into by the trial court as well as the 1 st appellate court, it can be seen that, while passing the judgment and decree in favour of the plaintiff, the main document relied on was the Commission Report, Mahazar and Sketch produced as Exhibits C1 to C3. There is serious controversy with regard to the acceptability of the said commission report, as it is discernible from the Commission report itself that the Commissioner could not identify the property with the details furnished in the title deed. Therefore, the findings entered into by the trial court as well as the appellate court, which are mainly relied on the said Commission report cannot be accepted as such. Besides, it is discernible from the observations made by the judgments passed by both the courts that much emphasis is given to the fact that, when the 2nd defendant was examined as DW1, he did not dispute the boundaries as set out in Ext.A1. However, that also cannot be a reason accept the contention of the plaintiff, in the absence of other evidence, in view of the 2025:KER:70384 RSA No.497 OF 2003 14 fact that the description of the properties in Ext.A1 is completely different from that of the plaint schedule. Therefore, merely because, the boundaries mentioned in Ext.A1 were admitted by the 2nd defendant while being examined as a witness, cannot be a reason to accept the case of the plaintiff. This is because, as observed in Aliyar's case (supra) when there is a clear mis-description in the title deed and there is serious disputes with regard to the identity of the property, a declaration could not have been granted unless, such identification was clearly made by adducing evidence in this regard. In such circumstances, it has to be held that sufficient materials were not there to grant a declaration as sought for in the suit in favour of the plaintiff.
14. Yet another aspect that fortifies the aforesaid conclusion is that, the judgment and decree were passed mainly relying upon Exts.C2 Commission report. It is to be noted in this regard that, in this case, as against Ext.C2 serious objections were raised by the defendant and thereupon a second commission was appointed by the trial 2025:KER:70384 RSA No.497 OF 2003 15 court. Accordingly, a fresh inspection was conducted by another Advocate Commissioner and Ext.C4 report, C5 mahazar and C6 plan were submitted. However, neither in the judgment passed in the original suit nor in the judgment of the appellate court, there is any discussion with regard to Ext.C4 Commission Report. One of the specific challenges raised by the learned counsel for the appellants is that Ext.C2 Commission Report could not have been relied on when a second Commission report was placed on record. According to the appellants, the second Advocate Commissioner was appointed, in view of the fact that, the learned Munsiff found that the first Commission report was not satisfactory. The learned counsel for the appellants also places reliance upon the observations made by the Division Bench of this Court in Laly Joseph v. Francis [2023(2) KLT 516] wherein, it was observed that, it is open for the court to remit the Commission report for further inquiry, so also to appoint a fresh commission without setting aside the earlier commission report. This 2025:KER:70384 RSA No.497 OF 2003 16 observation is relevant in this case. Apparently, it is seen that no orders are passed by the learned Munsiff's court setting aside the Ext.C2 report and the second Commission was appointed without resorting to the said procedure. Thus, since, as held in the said decision, it was within the competence of the court to appoint a new commissioner without setting aside the earlier report, and such report is already on record, the courts should not have ignored the said commission report. This is particularly because, in this case, there is serious dispute with regard to the identity of the properties. It is also to be noted in this regard that, as far as the plaint A schedule property as described in the plaint is concerned, it consists of 22 cents comprised in Survey No.7/1A/8 and 18 cents comprised in Survey No.7/1A/24. The 2nd defendant had a specific case that his property is included in Survey No.7/1A/24 and as per the measurement in Ext.C4 Commission report, the extent of property in plaint schedule is only 22 cents. Thus the difference in the extent between the two commission 2025:KER:70384 RSA No.497 OF 2003 17 reports viz. Ext.C2 and C4, coupled with the difference in the description of the Ext.A1 title deed and the description of the properties in the plaint schedule would lead to an irresistible conclusion that, the issues were not properly decided by the trial court as well as the first appellate court, and the reliefs were granted without properly considering the evidence on record.
15. In light of the above discussions and findings, the substantial questions of law 'f' and 'g' are to be answered in favour of the appellants. This is because, since there is misdescription of the properties in the title deed, the declaration as sought for could not have been granted in favour of the plaintiff, unless the plaintiff is able to establish with clear evidence as to its identity. Here, as mentioned above, the identity is not established and there are conflicting reports of two advocate commissioners, which were not taken into account by the trial court as well as the first appellate court. Therefore matter requires reconsideration.
2025:KER:70384 RSA No.497 OF 2003 18 In such circumstances, this appeal is allowed by setting aside the judgment and decree dated 10.01.1990 passed by the Munsiff Court, Kottarakkara in O.S.No.316/1984 as well as the judgment and decree passed in A.S.No.19/1990 dated 22.10.2002 passed by the Sub Court, Kottarakkara and the matter is remanded to the Munsiff Court, Kottarakkara for fresh consideration. It is clarified that, it shall be open to both sides to adduce further evidence, as may be necessary to substantiate their respective contentions. It is further clarified that the learned Munsiff shall make every endeavour to dispose of the suit as expeditiously as possible taking into account the fact that the suit was filed as early as in the year, 1984.
Sd/-
ZIYAD RAHMAN A.A. JUDGE pkk