Kerala High Court
Geethakumari vs V.Viji on 29 January, 2026
R.S.A. No.1222 of 2014 1 2026:KER:7057
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 29TH DAY OF JANUARY 2026 / 9TH MAGHA, 1947
RSA NO. 1222 OF 2014
AGAINST THE JUDGMENT AND DECREE DATED 07.07.2014 IN AS NO.204
OF 2011 OF ADDITIONAL DISTRICT COURT- III, THIRUVANANTHAPURAM
ARISING OUT OF THE JUDGMENT AND DECREE DATED 23.12.2010 IN OS NO.1496
OF 2002 OF PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM
APPELLANTS/APPELLANTS/PLAINTIFFS :
1 GEETHAKUMARI
AGED 46 YEARS, T.C.10/4,
W/O.VIJAYAKUMAR, SINDHOORAM,
PIPINMOODU, SASTHAMANGALAM,
THIRUVANANTHAPURAM.
2 VIJAYAKUMAR B.S.
AGED 52 YEARS
T.C.10/4, SINDHOORAM, PIPINMOODU,
SASTHAMANGALAM, THIRUVANANTHAPURAM.
BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.)
SHRI.P.B.KRISHNAN (SR.)
SRI.P.B.SUBRAMANYAN
SRI.MAHESH ANANDAKUTTAN
SMT.M.A.ZOHRA
SRI.SABU GEORGE
SRI.MANU VYASAN PETER
RESPONDENTS/RESPONDENTS/DEFENDANTS :
1 V.VIJI
W/O.K.SHAJI KUMAR, T.C.10/4,
SINDHOORAM, PIPINMOODU, SASTHAMANGALAM,
THIRUVANANTHAPURAM-695003.
2 K.SHAJI KUMAR
T.C.10/4, SINDHOORAM, PIPINMOODU,
SASTHAMANGALAM, THIRUVANANTHAPURAM-695003.
R.S.A. No.1222 of 2014 2 2026:KER:7057
3 K.SREEKANTAN NAIR
C/O.V.VIJI, T.C.10/4, SINDHOORAM,
PIPINMOODU, SASTHAMANGALAM,
THIRUVANANTHAPURAM-695003.
BY ADVS.
SMT.KAVERY S THAMPI
SRI.K.M.SATHYANATHA MENON
SHRI.A.SANTHOSHKUMAR
THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
7.1.2026, THE COURT ON 29.01.2026 DELIVERED THE FOLLOWING:
R.S.A. No.1222 of 2014 3 2026:KER:7057
EASWARAN S., J.
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R.S.A. No.1222 of 2014
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Dated this the 29th day of January, 2026
JUDGMENT
The plaintiffs in a suit for declaration of title and recovery of possession by demolishing the illegal construction have come up in the present appeal, aggrieved by the concurrent findings rendered by the courts below.
2. The brief facts necessary for the disposal of the appeal are as follows:
The 1st plaintiff derived the right, title and interest over the plaint A schedule property by a settlement deed of 2131 of 1978. The total extent of property mentioned therein is twelve (12) cents. The plaint B schedule property consists of two (2) cents, and plaint C schedule property consists of 523 square links. The building situated in plaint A schedule property, was leased out to a tenant, and during the period of absence of the tenant, an attempt was made by the defendants to trespass into the plaint B schedule property. It is contended that the defendants later started construction of a building on their property in violation of the provisions R.S.A. No.1222 of 2014 4 2026:KER:7057 of the Kerala building rules and regulations, and, on complaint, the Thiruvananthapuram Corporation had directed the defendants 1 and 2 to remove the portion of the illegal construction. In the guise of effecting the changes as directed by the local authority, the compound wall was demolished. Thereafter, they constructed a new granite retaining wall and also extended the portion of their building protruding into the plaint B schedule property, which is included as C schedule. It is contended that the plaint A schedule property had a definite demarcating boundary, and the northern boundary lies on a higher level to a height of 3½ feet, and there is an old compound wall constructed of granite. The illegal attempt made by the defendants to demolish the compound wall and construct a new compound wall led to the filing of the suit. The defendants resisted the suit by contending that the plaint B schedule property does not form an integral part of plaint A schedule property. All the averments in the plaint were thus denied. It was further contended that defendants 1 and 2 had constructed the building strictly in accordance with the provisions of the Kerala building rules and regulations, and since the defendants' property is lying at a height of 3½ feet from the property of the plaintiffs, there should have been a new filling by earth, which is not available in the present case. On behalf of the plaintiffs, Exts.A1 to A33 documents were R.S.A. No.1222 of 2014 5 2026:KER:7057 produced, and on behalf of the defendants Exts.B1 to B14 documents were produced. PW1 and PW2 were examined on behalf of the plaintiffs, and DW1 was examined on behalf of the defendants. Exts.CW1 and CW2 are the court witnesses. Exts.C1, C2 and C3 are the reports of the Advocate Commissioner and Exts.C2(a) and C3(a) are the plans. The trial court, on appreciation of the oral and documentary evidence, came to the conclusion that the plaintiffs do not have a title over the plaint schedule property and therefore dismissed the suit. Aggrieved, the plaintiffs preferred A.S. No.204 of 2011 before the Additional District Court-III, Thiruvananthapuram, which was disposed of on 7.7.2014 by confirming the judgment and decree of the trial court and hence the present appeal.
3. The appeal was admitted to file by this Court on 16.10.2025 on the substantial questions of law framed in the memorandum of appeal, which reads as under:
i) Has not the courts below erred in dismissing the suit on assumptions and presumptions instead of properly considering the evidence adduced and the title deeds produced by the parties, apart from the Commission reports submitted with survey plan after conducting 3 inspections in the years 2002, 2005 and 2009 as directed by the court?
ii) It is not erroneous to dig into unexisting facts on the basis of R.S.A. No.1222 of 2014 6 2026:KER:7057 presumptions contended by the defendant in the suit rather than clear evidence adduced by the plaintiffs with regard to their title and which establish encroachment, to allow the suit as prayed for?
iii) Once, in a suit for declaration, the plaintiff has established her title and possession and enjoyment of 12 cents of the plaint schedule property, which is trespassed into by the defendants and added on to the defendant's property, as supported by independent evidence, has not the courts below erred in dismissing the suit assuming plaint schedule property can only be 9 cents whereas transfer effected by Krishna Pillai can be for more property than he holds?
v) Is it not erroneous to presume transfer by anyone of more extent than he has and can such transfer be considered valid? Can the courts presume defendant's predecessors to transfer 26 cents in their favour when their own documents Ext.B15 and Ext.A7 reveals that their predecessor had only 22 cents of property in Survey No.908/2? Is not such presumptions perverse leading to injustice to the plaintiff whose title is clearly with regard to transfer of 12 cents in her favour purchased by her predecessors-in-interest?
4. Heard Sri. S.V. Balakrishna Iyer, the learned Senior Counsel appearing for the appellants/plaintiffs, assisted by Sri. P.B. Subramanyan, the learned counsel appearing for the appellants and Sri. K.M. Sathyanatha Menon, the learned counsel appearing for the respondents.
R.S.A. No.1222 of 2014 7 2026:KER:7057
5. Sri. S.V. Balakrishna Iyer, learned Senior Counsel appearing for the appellants, contended that in the nature of the relief sought for in the suit, it was not possible for the courts below to have entered into a finding regarding the title of the plaintiffs, especially when the same is not under dispute. The devolution of title as found from the evidence is not supported by any pleadings by the defendants, and therefore, in the absence of any counterclaim by the defendants setting up an independent title should not have been adjudicated by the courts below. It is further contended that even assuming that the courts below are entitled to appreciate the said fact, the said appreciation is clearly perverse inasmuch as the predecessor of the defendants had only twenty-two (22) cents, which was covered by Ext.A7 document. It is only when the predecessor of the defendants transferred the property by document No.1304/1123 (M.E.), that there was an erroneous description of the property having an extent of Twenty Six (26) cents. Therefore, it is contended that the devolution of the title as found by the courts below is completely wrong and perverse.
6. On the other hand, Sri. K.M. Sathyanatha Menon, the learned counsel appearing for the respondents, supported the findings rendered by the courts below and contended that no substantial question of law R.S.A. No.1222 of 2014 8 2026:KER:7057 arises for consideration in the appeal inasmuch as the findings are recorded purely on the appreciation of facts. It is submitted that the findings recorded by the courts below, based on the report of the Advocate Commissioner, are perfectly correct and do not call for any interference by this Court in the exercise of the powers under Section 100 of the Code of Civil Procedure. It is thus pointed out that the findings rendered by the Advocate Commissioner in his report are without any basis and therefore were rightly rejected by the courts below.
7. I have considered the rival submissions raised across the Bar, perused the judgments of the courts below and the records of the case.
8. Though more than one substantial question of law is raised in this appeal, and this Court having not framed any specific substantial question of law, it is felt expedient to reframe the substantial questions of law as follows:
i) In a suit for declaration, when the plaintiff has established her title and possession of the plaint schedule property which is trespassed into by the defendants, have not the courts below erred in dismissing the suit, assuming the plaint schedule property can only be 9 cents?
ii) Does the predecessor of the defendant retain any balance extent of the property under the R.S.A. No.1222 of 2014 9 2026:KER:7057 "otti"(mortgage) when, admittedly in a suit for recovery of mortgage money by a subsequent mortgagee, the property was sold and the entire extent was delivered to him?
iii) Since the defendants' predecessor had only right over 22 cents, is the subsequent document executed by him mentioning the extent as 26 cents valid in the eye of the law by anyone of more extent than he has and can such transfer be considered valid?
iv) Is the finding of the courts below perverse?
9. On a conspectus reading of the judgments of the courts below, it is evident that an unnecessary task was undertaken by the courts below in order to find whether the appellants have title over the B schedule property. Perhaps, because of the nature of the reliefs sought for by the appellants, the trial court would have been persuaded to test the veracity of the claim of the appellants for a declaration of title qua B schedule property. But, however, it is pertinent to mention that both parties have extensively adduced evidence without any supporting pleadings.
10. In Union of India Vs Ibrahim Uddin & Another [(2012) 8 SCC 148], the Supreme Court held that no evidence is permissible to be taken on record without any specific pleading regarding the same.
R.S.A. No.1222 of 2014 10 2026:KER:7057
11. Moreover, going by Order VI Rule 9 of the Code of Civil Procedure, 1908, wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible. Turning to Order VIII Rule 3 of the Code of Civil Procedure, 1908, it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiff and the denial must be specific.
12. On a perusal of the written statement, it is clear that, except for a vague statement that plaint B Schedule does not form part of the Plaint A schedule, no other statement is made by the defendants. Therefore, no amount of documentary evidence will suffice the cause.
13. In Shivaji Balaram Haibatti Vs Avinash Maruthi Pawar [(2018) 11 SCC 652], the Supreme Court held that the parties cannot travel beyond the pleadings and the court cannot record any finding which are not based on the pleadings.
14. Applying the ratio decidendi culled out from the above decisions, and testing the findings of the courts below based on the principles therein, it is imperative to note that the findings are not only perverse but without any basis at all. Moreover, it is pertinent to note that the defendants did not dispute the title of the appellants but, raised a vague claim that B schedule property does not form an integral part of A R.S.A. No.1222 of 2014 11 2026:KER:7057 schedule property. Therefore, once the plaintiffs were successful in identifying the plaint A schedule and B schedule properties with the help of the Advocate Commissioner and the Taluk Surveyor, the courts below should have stopped the exercise there.
15. A cursory glance at the reports of the Advocate Commissioner, especially Exts.C1, C2 and C3 including Exts.C2(a) and C3(b) plans would undoubtedly establish the unauthorised construction made by the defendants protruding into the plaint B schedule property, which is specifically mentioned in the plaint C schedule. No plausible explanation is forthcoming from the defendants to substantiate as to how they were able to make constructions in the B schedule property over which they do not have any title. Therefore, once Exts.C2(a) and C3(a) plans were drawn and the plaintiffs were successful in establishing the fact that B schedule property forms an integral part of A schedule, the consequential decree must have followed.
16. Be that as it may, it is beyond cavil that the trial court and the first appellate court went on a completely wrong tangent altogether in order to test the devolution of title of the plaintiffs. Though it is not imperative for this Court to deal with the said findings, for the sake of completion, this Court will deal with those findings because the R.S.A. No.1222 of 2014 12 2026:KER:7057 appellants have a definite case that the findings are perverse.
17. The plaintiffs claimed title based on a settlement deed of the year 1978, which consists of 12 cents of land. As regards the devolution of title of the respondents/defendants are concerned, the facts as disclosed from the evidence adduced by the parties reveal that an extent of 22 cents was acquired by one Krishna Pillai on 21.3.1120 (M.E.) from Sri. Narayana Kurukkal. Later, by Ext.A4 document, Krishna Pillai settled the property in favour of one Saradamma and Kamalamma through a settlement deed. The devolution of title as stated in Ext.A4 document, shows that late Krishna Pillai, while transferring the rights over the property derived by him under Ext.A7, chose to describe the property as having an extent of twenty-six (26) cents. Therefore, the pertinent question before this Court is whether late Krishna Pillai could have conferred right, title and interest over twenty-six (26) cents. It is in this context that the derivation of title assumes significance, which persuaded this Court to analyse the findings to test the perversity in those findings rendered by the courts below.
18. The specific case of the defendants, though not pleaded as borne out from the evidence on record (Ext.B8), is that late Krishna Pillai held twenty-six (26) cents as a mortgage. It perhaps would have been possible R.S.A. No.1222 of 2014 13 2026:KER:7057 for them to have sustained the plea, but for the intervening circumstances under Ext.A7 document. A conspectus reading of Ext.A7 document would reveal that the entire property was under mortgage with Subramanyaru. He, in turn, mortgaged property to Narayana Kurukkal, who instituted the suit for recovery of money, in which the entire thirty-
five (35) cents was sold and a sale sanad (certificate of sale) was issued to him.
19. The executing court ordered delivery of the property covered by the sale certificate. The occupants in the property were evicted, and the entire thirty-five (35) cents was delivered to Narayana Kurukkal. Narayana Kurukkal, in turn, sold the twenty-two (22) cents to Krishna Pillai by Ext.A7 document. The finding of the courts below is that though Krishna Pillai derived title over twenty-two (22) cents, the original mortgage in his favour under Ext.B8 document had become barred by limitation and therefore, it was irredeemable and thus the remaining four (4) cents was in possession of Krishna Pillai, and therefore, he had title over the property.
20. Had, Krishna Pillai retained any portion of 26 cents, the same would have found a mention when Ext.A4 was executed. It is pertinent to note that, going by Ext.A4, all the occupants of 35 cents of property R.S.A. No.1222 of 2014 14 2026:KER:7057 were evicted in execution proceedings, which includes Krishna Pillai. Since the defendants had no case that dehors the sale certificate in favour of Narayana Kurukkal, Krishna Pillai had possession of 4 cents, it is unfathomable to hold that Krishna Pillai had four (4) cents of property in his possession. Therefore, the finding of the courts below that Krishna Pillai retained the possession of four cents is not only without any pleadings, but it is against the evidence on record, thus clearly perverse.
21. It has come out in evidence that once Krishna Pillai was given twenty-two (22) cents, Narayana Kurukkal retained the balance of thirteen (13) cents. The documents produced by the plaintiffs would show that on 10.4.1954, the legal heirs of Narayana Kurukkal mortgaged twelve (12) cents to one Chellamma, who in turn created a mortgage or mortgage rights in favour of Chellappan by a document called Chit Otii (mortgage of mortgage rights) on 6.9.1956 (Ext.A10). Later, Chellappan reassigned the property in favour of Chellamma by document No.3766 of 1961. On redemption of the mortgage by the legal heirs of Narayana Kurukkal, on 16.7.1963 (Ext.A5), the Jenman rights of the legal heirs of the Narayana Kurukkal were transferred in favour of Chellappan, the father of the plaintiffs, who in turn settled the property on 27.7.1978 (Ext.A1) in favour of the plaintiffs.
R.S.A. No.1222 of 2014 15 2026:KER:7057
22. Certainly, the appreciation of evidence being vitiated by perverseness and non-application of mind, amounts to a substantial question of law and notwithstanding the concurrent finding, this Court gets the power to exercise its powers under Section 100 of the Code of Civil Procedure 1908.
23. When the findings of the courts below are tested in the nature of devolution of tile in favour of the defendants, it is not possible for this Court to hold that late Krishna Pillai retained four (4) cents of land under Ext.B8 mortgage in his favour because, once the second mortgagee had brought the suit for recovery of money and in pursuance to execution of the decree, the entire property was sold and all the occupants were evicted, the first mortgagee loses the right, tile and interest over the property. That apart, late Krishna Pillai was conscious about his right and notwithstanding Ext.B8, proceeded to go ahead and purchase the right, title and interest vested with Narayana Kurukkal in terms of Ext.A7 document. Therefore, once Krishna Pillai purchased the right sold in favour of Narayana Kurukkal through court auction, Krishna Pillai lost his entire right under Ext.B8 mortgage. This aspect has been completely lost sight of by the courts below. It is true that these facts are not borne out by any pleadings, and this Court has endeavoured to test those R.S.A. No.1222 of 2014 16 2026:KER:7057 findings only because of the extensive findings rendered by the courts below dehors the pleadings. Therefore, in the light of what is discussed above, it is inevitable for this Court to conclude that the findings rendered by the courts below are nothing but perverse.
24. Before concluding, this Court must note the extent of perversity in the findings of the courts below when it holds that Krishna Pillai was in possession of twenty-six (26) cents for more than fifty (50) years. On what basis the trial court concluded thus remains a mystery, especially when a reading of Ext.A7 document shows that all the occupants of the entire thirty-five (35) cents were evicted in the proceedings before the jurisdictional civil court in a suit instituted by Narayana Kurukkal for recovery of the amount due to him under the mortgage.
25. As regards the identity of the property, no arguments are advanced before this Court to disprove the findings rendered by the Advocate Commissioner in Exts.C2(a) and C3(a) plans. A cursory glance at Ext.C3(a) plan would show that the Advocate Commissioner has clearly identified the line separating the plaint schedule property with that of the defendants' property. Admittedly, the defendants have the right title and interest over ten (10) cents of land by virtue of the gift executed by Vasanthakumari in their favour. Vasanthakumari is none R.S.A. No.1222 of 2014 17 2026:KER:7057 other than the daughter of Kamalamma, who derived the title under Ext.A4 settlement deed. That be so, in the absence of any contra evidence to show that the defendants had got title over the B schedule property, the courts below were not justified in rejecting the claim of the appellants/plaintiffs.
26. Resultantly, this Court is inclined to answer the substantial questions of law in favour of the appellants as follows:
a) Since the plaintiffs have established right title and interest over 12 cents of land, and that, it has come out in evidence that the defendants have trespassed into B Schedule property having 2 cents, the court below erred in assuming that plaint A schedule property is having only 9 cents especially since even defendants did not have such a case in written statement.'
b) In view of the categoric statement in Ext.A7 document by which the predecessor of the defendants derived title, that the entire 35 cents was delivered to the vendor in execution of a decree, it is impossible to assume that the predecessor of the defendants retained the balance 4 cents under the Ext.B8 mortgage.
c) Since Krishna Pillai had derived only 22 cents under Ext.A7, he could not have mentioned 26 cents when he executed the settlement R.S.A. No.1222 of 2014 18 2026:KER:7057 deed. The subsequent document executed by mentioning 26 cents is not valid in the eyes of law to that extent.
d) The finding of the court below, dismissing the suit is clearly perverse.
27. In fine, the appeal is allowed by reversing the judgment and decree in O.S. No.1496 of 2002 on the files of the Principal Munsiff Court, Thiruvannathapuram, as affirmed in A.S. No.204 of 2011 by the Additional District Court-III, Thiruvananthapuram. The suit will stand decreed as prayed for. The defendants are directed to demolish the construction made protruding into the plaint B schedule property as evidenced under C schedule within a period of one month from the date of receipt of a copy of this judgment and decree, failing which, the plaintiffs may execute the same through process of court and recover the expenses for the same from the defendants. The plaintiffs will be entitled to the costs of this proceeding.
Sd/-
EASWARAN S. JUDGE NS