2025:KER:28062 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947 RSA NO. 989 OF 2011 AGAINST THE JUDGMENT AND DECREE DATED 10.02.2011 IN AS NO.19 OF 2008 OF DISTRICT COURT,THRISSUR ARISING OUT OF THE JUDGMENT AND DECREE DATED 23.07.2007 IN OS NO.1371 OF 2000 OF MUNSIFF COURT, CHAVAKKAD APPELLANTS/DEFENDANTS 1 AND 3: 1 BHANUMATHY, W/O.LATE ASHOKAN, KOTTUKKAL PALAKKAL HOUSE, NATTIKA P.O.,, THRIPRAYAR DESOM, NATTIKA VILLAGE, CHAVAKKAD TALUK, PIN - 680 566. 2 BALAKRISHNAN S/O.LATE ASHOKAN RESIDING AT DO. DO. BY ADV SRI.P.RAMACHANDRAN RESPONDENTS/RESPONDENTS/PLAINTIFFS AND DEFENDANTS: 1 SREE NARAYANA TRUST, KOLLAM REPRESENTED BY SECRETARY, V.K.NADESAN, VELLAPPALLIL VEETTIL, KANICHUKULANGARA DESOM, CHERTHALA TALUK, 688 582 2 NATTIKA SREENARAYANA COLLEGE REPRESENTED BY PRINCIPAL, N.AYYAPPA DAS, S.N.COLLEGE, NATTIKA P.O., THRISSUR DISTRICT, PIN 680 566. 3 RAMACHANDRAN,S/O.BHANUMATHY & LATE ASHOKAN, KOTTUKAL PALAKKAL HOUSE,, NATTIKA P.O., THRIPRAYAR DESOM,NATTIKA VILLAGE, CHAVAKKAD TALUK, PIN 680 566. 2025:KER:28062 RSA No. 989 of 2011 : 2 : 4 RAHNA D/O.MARAT RAMACHANDRAN THRIPRAYAR DESOM, NATTIKA P.O., THRISSUR DISTRICT PIN 680 566. DELETED FROM THE PARTY ARRAY OF THE APPEAL AT THE RISK OF THE APPELLANT AS PER ORDER DATED 26.02.2019 IN I.A.02/2019. 5 NIRMALA, W/O.PUTHUR CHANDRANGADHAN, THRIPRAYAR DESOM, NATTIKA P.O., THRISSUR DISTRICT, PIN 680 566. 6 SHIBU S/O. DO. RESIDING AT DO. DO. 7 SHAJU S/O. DO. RESIDING AT DO. DO. BY ADVS. SRI.P.K.SAJEEV SRI.P.GOPALAKRISHNAN SRI.A.N.RAJAN BABU SRI.P.R.SHAJI THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:28062 RSA No. 989 of 2011 : 3 : M.A.ABDUL HAKHIM, J. =========================== RSA No. 989 of 2011 ============================ Dated this the 2nd day of April, 2025 JUDGMENT 1. The Regular Second Appeal is filed by the defendants 1 and 3 in the suit. The suit was one for recovery of possession and also for mandatory and prohibitory injunctions. The first plaintiff is a Trust by name ‘Sree Narayana Trust’ and the 2nd plaintiff is Nattika Sreenarayana College run by the 1st plaintiff. The plaint A schedule property is 67 cents of land situated in Survey No.284/9 of Nattika Village. The plaintiffs claimed title over the plaint schedule property as per Ext.A1 title deed dated 02.05.1967 executed by one Raghavan. 2. As per plaint allegations, the plaint A schedule property originally belonged to one Velayi as per document No.559/1948. Velayi executed Ext.A7 document of the year 1950 with respect to 50 cents in favour of one Unnoolikutty creating a possessory mortgage in her favour. Remaining property was retained by Velayi. Later, as per Ext.A2 document of the year 1966, Velayi assigned the 17 cents of land in favour 2025:KER:28062 RSA No. 989 of 2011 : 4 : of Raghavan with right of redemption of 50 cents of land from Unnoolikutty. Thereafter, Unnoolikkutty executed Ext.A3 document of the year 1966 releasing the mortgage in favour of Raghavan. Raghavan executed Ext.A1 document of the year 1967 with respect to plaint schedule property in favour of the 1st plaintiff and thus, plaintiffs got title and possession of the plaint A schedule property. The defendants 1 to 3 are the legal heirs of Unnoolikutty. They trespassed into the plaint A schedule property in July 2000. The 4th defendant constructed plaint B schedule shed and plaint C schedule shed without roof. The 5th defendant constructed plaint D schedule shed. Defendants 1 to 3 have been residing in plaint E schedule property, which is a part of the plaint A schedule property, with the permission of the plaintiff. The plaintiffs sought for recovery of plaint A schedule property except plaint E schedule property based on title, stating that the plaintiffs will be taking separate steps to evict the defendants 1 to 3 from plaint E schedule property. Consequential prohibitory and mandatory injunctions were also sought. 3. The defendants 1 and 3 filed joined Written Statement contending,inter alia, that the plaintiffs and their predecessors 2025:KER:28062 RSA No. 989 of 2011 : 5 : had no title over the plaint schedule properties. The defendants’ predecessor Unnoolikutty obtained 50 cents as per Ext.A7 document. Unnoolikuty obtained the remaining 17 cents as per varam arrangement in the year 1951. On the death of Unnoolikutty, his son Asokan who was the husband of the 1st defendant and father of the defendants 2 &3 obtained possession of the plaint A schedule property, and on the death of Asokan, the defendants 1 to 3 are in possession of the plaint schedule properties. Raghavan was never in possession of the plaint schedule properties. Ext.A3 Release Deed executed by Unnoolikutty is not valid. Since the defendants 1 to 3 and their predecessors have been in possession of the plaint schedule properties since the year 1966, the plaintiffs have lost their title by adverse possession and limitation 4. The 2nd defendant filed Written Statement adopting the written statement of 1st and 3rd defendants. 5. The fourth defendant filed separate Written Statement contending that he had obtained 17 cents of land as per the document executed by the defendants 1 to 3. 2025:KER:28062 RSA No. 989 of 2011 : 6 : 6. The defendants 6 to 8 who are the legal heirs of the 5th defendant also filed Written Statement supporting the written statement filed by the defendants 1 and 2. 7. The Trial Court decreed the suit finding that the plaintiff is having title over the plaint A schedule property and directing the defendants 1 to 4 and the defendants 6 to 8 to surrender vacant possession of plaint A schedule property except plaint E schedule property and directing them to demolish plaint B to D schedule properties, directing them to demolish the concrete posts and iron rod fence in the plaint A schedule property and further restraining them by way of a permanent prohibitory injunction from committing any act of waste in the plaint A schedule property. 8. The defendants 1 and 3 filed appeal before the First Appellate Court, and the same was dismissed, confirming the judgment and decree passed by the Trial Court. This Court admitted the Regular Second Appeal on the following substantial questions of law. (1) When the defendants pleaded in the written statement that Ext.A3 release deed was executed without any intention to transfer the right and it is only a sham and nominal document, 2025:KER:28062 RSA No. 989 of 2011 : 7 : whether the trial court was justified in not framing an issue and considering whether Ext.A3 is a sham and nominal document and thereby Raghavan, the assignor obtained possession of the mortgaged property. (2) Whether on the evidence courts below were justified in holding that the plaint schedule properties are properly identified. 9. I heard the learned counsel for the appellant Sri.P.Ramachandran, the learned counsel for the 1st respondent Sri.A.N.Rajan Babu and the learned counsel for the 2nd respondent Sri.P.R.Shaji. 10. The learned counsel for the appellant contended that the Trial Court ought to have formulated an issue whether Ext.A3 is a sham and nominal document when such contention was specifically raised by the defendants in their Written Statement and adjudicated the said issue. The learned counsel relied on the decision of the Hon’ble Supreme Court in Chebrol Sriramalu v. Vakalapudi Satyanarayana [2013 (9) SCC 404] to support the said contention. The learned counsel further contended that the property is not properly identified by the plaintiff. Only an ex-parte commission was taken at the 2025:KER:28062 RSA No. 989 of 2011 : 8 : time of filing of the suit and Ext.C1 and C2 were obtained. Ext.C2 is only a Rough sketch on the basis of which the decree could not be given. The learned counsel relied on the decision of the Hon'ble Supreme Court in P. Chandrasekharan and others v. S.Kanakarajan and others [2007 KHC 3567], in this regard. The learned counsel further cited the decision of this Court in Naduvatheyath Sulochana v. Syndicate Bank Branch Manager [2022 (2) KHC 253] to substantiate the point that when the defendants raised a contention that particular document is sham, it is permissible to adduce extrinsic evidence about the nature and possession of the property after the purchase, motive, if any, for making the sham transaction and the position of the parties and the relationship, if any, between the claimant and the alleged ‘shammer’. When this extrinsic evidence is available in the present case to hold Ext.A3 as a sham transaction, the Trial Court ought to have found that Ext.A3 is sham document. The learned counsel further contended that admittedly the documents relating to the plaint schedule property produced by the plaintiffs is in Survey No. 284/11, but the plaintiff 2025:KER:28062 RSA No. 989 of 2011 : 9 : contended that the actual Survey No. is 284/9. The said fact is not proved by the plaintiff. 11. On the other hand, the learned counsel for the respondents contended that the substantial questions of law formulated in the appeal do not amount to substantial question of law as laid down by the test in the decision of the Hon'ble Supreme court in Government of Kerala v. Joseph [ 2023 (5) KLT 74 (SC)] Question of law shall be having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. The learned counsel further contended that the substantial questions of law formulated in the present appeal do not arise from the facts and circumstances of the case. There is no dispute with regard to the identity of the property. Even though the defendants claimed that Ext.A3 document is sham and nominal document, no evidence in this regard is produced to support the said contention. If they had any grievance with respect to non framing of any particular issue, they should have prayed to the Trial Court to frame issue in this regard. 12. I have considered the rival contentions. 2025:KER:28062 RSA No. 989 of 2011 : 10 : 13. The first substantial question of law is with respect to the non-framing of the issue regarding the validity of the Ext.A3 release deed. Both sides admit that the plaint schedule property of 67 cents originally belonged to one Velayi and 50 cents out of the same was mortgaged to Unnoolikutty, predecessors of the defendants 1 to 3. The execution of Ext.A3 Release Deed by Unnoolikutty is admitted by the defendants. If Ext.A3 Release Deed is invalid, the plaintiff’s will not get title as the mortgage in favour of Unnoolikutty is not released. With respect to the remaining 17 cents not covered by mortgage, though the defendants 1 to 3 claimed varam arrangement, there is no document to prove the same. So, the defendants cannot claim any right over the remaining 17 cents, and the same belonged to Velayi and came into the ownership of the plaintiffs as per Exts.A1 and A2 Sale Deeds. 14. It is true the defendants had raised a contention in the Written Statement that Ext.A3 is a sham and nominal document. According to the Counsel for the appellant, the 1st plaintiff represented to Unnoolikutty that 30 acres of land is required for starting a college for the plaintiffs, and on the basis of such representation, Ext.A3 document was 2025:KER:28062 RSA No. 989 of 2011 : 11 : executed only to show that the 1st plaintiff is having 30 acres of land. It is true that the Trial court did not frame an issue in this regard. But that does not in any way curtail the right of the plaintiff to file an application to frame an issue in this regard. No such application was filed by the defendants before the Trial Court by the defendants. It appears from the evidence that the defendants were not serious enough to prosecute the said contention. No evidence whatsoever was adduced in support of their contention that Ext.A3 is only a sham and nominal document. They relied on Exts.B1 to B13 documents to show that in spite of executing Ext. A3 document, their possession continued after the date of Ext.A3. True, it appears that cause of action claimed by the plaintiff that defendants trespassed into the plaint schedule property in July 2000 may not be correct. Exts. B1 to B8 documents are subsequent to 1966, which is the date of Ext.A3 document. It would show that the defendants have been continuing possession of the plaint schedule property after Ext.A3. But when the title of the plaintiffs is proved by the title document, the plaintiff is entitled to recover plaint schedule property on the strength of the title. The subsequent documents showing the continuance of 2025:KER:28062 RSA No. 989 of 2011 : 12 : possession will not be enough to hold that Ext.A3 document is a document executed with an intention not to implement the same. Even though the defendants contended that Ext.A3 was executed for showing that plaintiffs are having enough property for the college, no evidence is produced by the defendants. Hence, I am of the view that the nonframing of the issue regarding the validity of the Ext.A3 release deed is relevant or material in the facts and circumstances of the present case. Hence, I answer the substantial question of law No.1 in the affirmative and against the appellant. 15. The substantial question of law No.2 relates to the identity of the plaint schedule property. The defendants raised contention that the plaintiff did not prove the correct survey number of the plaint schedule property. Even though the plaintiff claimed that correct survey number of the property is Survey No.284/9 and the title document showed that Survey No. is 284/11. As rightly found by the Trial Court, in Ext.A5 Reply Notice, the 2nd defendant has admitted that there is a mistake in the survey number and that the correct Survey No. is 284/9 on the report of the authorities. The contention of the learned counsel for the appellant is that Ext.A5 is a Reply sent 2025:KER:28062 RSA No. 989 of 2011 : 13 : by the 2nd defendant and the appeal is filed by the defendants 1 and 3 who filed separate Written Statement in the suit. It is seen that defendants 1 to 3 are claiming title under the very same person. According to them, they are the legal heirs of Unnoolikutty who obtained mortgage of the plaint schedule property from Velayi. They advanced identical contentions and the defended the suit through very same counsel. Hence Ext.A5 Reply Notice sent by the 2nd defendant is to be treated as binding on the defendants 1 & 3 also. Hence the contention of that the plaintiff did not prove the correct survey number of the plaint schedule property is not sustainable. 16. The plaintiff is seeking recovery of possession of 67 cents included in plaint A schedule property excluding plaint E schedule property. Plaint E schedule property is shown as tiled building No.IV/233 situated in Survey No.285/9. The first question to be considered whether the plaintiff has identified the plaint schedule property in accordance with the title deed by which they obtained the property. The learned counsel for the appellant pointed out that the descriptions of the plaint schedule property in the plaint and in Ext.A2 document do not tally. The northern boundary shown as item No.3 in Ext.A1. 2025:KER:28062 RSA No. 989 of 2011 : 14 : But in the plaint schedule property it is the property belonged to one Anandan. That apart, the location of E schedule property is not shown in Ext.C2 Rough sketch. The plaint A schedule property having an extent of 67 cents of land should have been identified by the plaintiff with reference to the title deeds relied by them. Even though the defendants have not filed any objection for the commission report, it is the burden of the plaintiffs to identify plaint schedule property with a survey commission. That was not done in the case on hand. Plaint E schedule property is a building. If plaint E schedule property is to be excluded from Plaint A schedule property, necessarily the land on which the building is situated and the land for access are to be identified for excluding the same from plaint A schedule property. These things are not available in Ext.C2 Sketch. The decree granting recovery of possession as per Ext.C2 Rough Sketch is not sustainable. I am of the view that for identifying plaint A schedule property and plaint E schedule property by a survey commission, the matter is liable to be remanded back to the Trial Court. 17. In view of the answer to the substantial question of law Number 2, I find that the matter liable to be remanded to the 2025:KER:28062 RSA No. 989 of 2011 : 15 : Trial Court for the limited purpose of identifying the plaint A schedule property excluding plaint E schedule property with a Survey Commission. All other findings in the impugned judgments and decrees are confirmed. Accordingly, I set aside the judgment and decree passed by the Trial Court as well as the First Appellate Court and remanded the matter back to the Trial Court for a limited purpose of identifying the plaint A schedule property excluding plaint E schedule property with a Survey Commission. 18. The parties are directed to appear before the Trial Court on 30.05.2025. Sd/- M.A.ABDUL HAKHIM JUDGE nk