Kerala High Court
Stephen vs Jana on 29 June, 2026
R.S.A Nos.201, 202 and 204 of 2026 1 2026:KER:46452
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 29TH DAY OF JUNE 2026 / 8TH ASHADHA, 1948
RSA NO. 204 OF 2026
AGAINST THE JUDGMENT AND DECREE DATED 30.10.2025 IN AS NO.8 OF
2020 OF ADDITIONAL DISTRICT COURT II, NORTH PARAVUR ARISING OUT OF
THE JUDGMENT AND DECREE DATED 16.11.2019 IN OS NO.213 OF 2012 OF
MUNSIFF COURT, ALUVA
APPELLANT(S)/APPELLANT/PLAINTIFF :
1 STEPHEN
AGED 89 YEARS, S/O. PAULO,
GOPURATHINKAL HOUSE,
KARAYAMPARAMBU KARA, KARUKUTTY VILLAGE,
ALUVA TALUK, PIN - 683101
2 PREM STEPHEN
AGED 50 YEARS, S/O STEPHEN,
GOPURATHINKAL HOUSE, KARAYAMPARAMBU KARA,
KARUKUTTY VILLAGE, ALUVA TALUK, PIN - 683101
BY ADV SMT.JEENA JOSEPH
RESPONDENT(S)/RESPONDENTS/DEFENDANTS :
1 ANGAMALY MUNICIPALITY
REPRESENTED BY ITS SECRETARY,
ANGAMALY MUNICIPALITY, ANGAMALY P.O,
PIN - 683572
2 JANA, AGED 79 YEARS
W/O. LATE JOHNY, GOPURATHINKAL HOUSE,
NJALOOKKARA, KARAYAMPARAMBU KARA,
KARUKUTTY VILLAGE, ALUVA TALUK,
PIN - 683101
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
29.06.2026, ALONG WITH RSA NOS.201/2026 AND 202/2026, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A Nos.201, 202 and 204 of 2026 2 2026:KER:46452
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 29TH DAY OF JUNE 2026 / 8TH ASHADHA, 1948
RSA NO. 201 OF 2026
AGAINST THE JUDGMENT AND DATED 30.10.2025 IN AS NO.7 OF 2020
OF ADDITIONAL DISTRICT COURT - II, NORTH PARAVUR ARISING OUT OF THE
JUDGMENT AND DECREE DATED 16.11.2019 IN OS NO.169 OF 2013 OF MUNSIFF
COURT, ALUVA
APPELLANT(S)/APPELLANT/PLAINTIFF :
1 STEPHEN
AGED 89 YEARS
S/O. PAULO, GOPURATHINKAL HOUSE,
KARAYAMPARAMBU KARA, KARUKUTTY VILLAGE,
ALUVA TALUK, PIN - 683101
2 PREM STEPHEN
AGED 50 YEARS, S/O STEPHEN,
GOPURATHINKAL HOUSE, KARAYAMPARAMBU KARA,
KARUKUTTY VILLAGE, ALUVA TALUK,
PIN - 683101
BY ADV SMT.JEENA JOSEPH
RESPONDENT(S)/RESPONDENT/DEFENDANT :
1 JANA
AGED 79 YEARS, W/O. LATE JOHNY,
GOPURATHINKAL HOUSE, NJALOOKKARA,
KARAYAMPARAMBU KARA, KARUKUTTY VILLAGE,
ALUVA TALUK., PIN - 683101
2 DALIYA
AGED 51 YEARS, D/O. JOHNY,
GOPURATHINKAL HOUSE, AZHAKAM KARA,
KARUKUTTY VILLAGE, ALUVA TALUK
R.S.A Nos.201, 202 and 204 of 2026 3 2026:KER:46452
(REPRESENTED BY POWER OF ATTORNEY HOLDER JOY,
AGED 79, S/O. PAULO, GOPURATHINKAL HOUSE,
AZHAKAM KARA, KARUKUTTY VILLAGE, ALUVA TALUK
(4TH DEFENDANT), PIN - 683101
3 DINESH
AGED 49 YEARS
S/O. JOHNY, GOPURATHINKAL HOUSE,
KARAYAMPARAMBU KARA, KARUKUTTY VILLAGE,
ALUVA TALUK, (REPRESENTED BY POWER OF ATTORNEY HOLDER
JOY, S/O. PAULO, GOPURATHINKAL HOUSE, AZHAKAM KARA,
KARUKUTTY VILLAGE, ALUVA TALUK, (4TH DEFENDANT)),
PIN - 683101
4 G.P. JOY, AGED 79 YEARS
S/O. PAULO, GOPURATHINKAL HOUSE,
AZHAKAM KARA, KARUKUTTY VILLAGE,
ALUVA TALUK, PIN - 683101
5 ANGAMALY MUNICIPALITY
REPRESENTED BY ITS SECRETARY,
ANGAMALY MUNICIPALITY, ANGAMALY P.O.,
PIN - 683572
BY ADVS. SRI.M.P.ASHOK KUMAR
SMT.BINDU SREEDHAR
SHRI.ASIF N
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
29.06.2026, ALONG WITH RSA NO.204/2026 AND NO.202/2026, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A Nos.201, 202 and 204 of 2026 4 2026:KER:46452
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 29TH DAY OF JUNE 2026 / 8TH ASHADHA, 1948
RSA NO. 202 OF 2026
AGAINST THE JUDGMENT AND DECREE DATED 30.10.2025 IN AS NO.6 OF
2020 OF ADDITIONAL DISTRICT COURT - II, NORTH PARAVUR ARISING OUT OF
THE JUDGMENT AND DECREE DATED 16.11.2019 IN OS NO.459 OF 2005 OF
MUNSIFF COURT,ALUVA
APPELLANT(S)/APPELLANT/PLAINTIFF :
1 STEPHEN
AGED 89 YEARS
S/O. PAULO, GOPURATHINKAL HOUSE,
KARAYAMPARAMBU KARA, KARUKUTTY VILLAGE,
ALUVA TALUK, PIN - 683101
2 PREM STEPHEN
AGED 50 YEARS, S/O. STEPHEN,
GOPURATHINKAL HOUSE, KARAYAMPARAMBU KARA,
KARUKUTTY VILLAGE, ALUVA TALUK.,
PIN - 683101
BY ADV SMT.JEENA JOSEPH
RESPONDENT(S)/RESPONDENT/DEFENDANT :
1 JOHNY
AGED 74 YEARS
S/O. PAULO, GOPURATHINKAL HOUSE,
KARAYAMPARAMBU KARA, KARUKUTTY VILLAGE,
ALUVA TALUK., PIN - 683101
2 PHILOMINA
AGED 71 YEARS, D/O. DEASSY.
KUNNAPPILLY, KARAYAMPARAMBU KARA,
KARUKUTTY VILLAGE, ALUVA TALUK.,
PIN - 683101
R.S.A Nos.201, 202 and 204 of 2026 5 2026:KER:46452
3 DALIYA
AGED 51 YEARS, D/O. JOHNY,
GOPURATHINKAL HOUSE, KARAYAMPARAMBU KARA,
KARUKUTTY VILLAGE, ALUVA TALUK,
PIN - 683101
4 DINESH
AGED 49 YEARS, S/O. JOHNY,
GOPURATHINKAL HOUSE, KARAYAMPARAMBU KARA,
KARUKUTTY VILLAGE, ALUVA TALUK,
PIN - 683101
5 JOY
AGED 79 YEARS, S/O. PAULO,
GOPURATHINKAL HOUSE, KARAYAMPARAMBU KARA,
KARUKUTTY VILLAGE, ALUVA TALUK,
PIN - 683101
6 JANA
AGED 79 YEARS, W/O. JOHNY,
GOPURATHINKAL HOUSE, KARAYAMPARAMBU KARA,
KARUKUTTY VILLAGE, ALUVA TALUK,
PIN - 683101
BY ADVS. SRI.M.P.ASHOK KUMAR
SMT.BINDU SREEDHAR
SHRI.ASIF N
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
29.06.2026, ALONG WITH RSA NO.204/2026 AND RSA NO.201/2026, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A Nos.201, 202 and 204 of 2026 6 2026:KER:46452
EASWARAN S., J.
-----------------------------
R.S.A. Nos.201, 202, and 204 of 2026
-------------------------------------
Dated this the 29th day of June, 2026
JUDGMENT
These appeals have been filed by the plaintiffs in three suits, who
were concurrently nonsuited by the courts below. Three suits, O.S.
Nos.459 of 2005, 213 of 2012, and 169 of 2013, were tried together by the
Munsiff Court, Aluva. O.S. Nos.459 of 2005 and O.S. No.213 of 2012 are
instituted for a permanent prohibitory injunction. O.S. No.169 of 2013 is
for fixation of boundary and cancellation of a document dated 18.8.1995,
which is a sale deed executed by the defendants. The dispute centres
around whether the plaintiffs had retained a certain extent of property
after the execution of Ext.A4 sale deed in favour of the defendants. The
title to the plaint schedule property, which comprises 34 cents, is traced
to sale deed No.980 of 1989 dated 10.06.1982 (Ext.A3). It stated that on
8.1.1986, the 1st plaintiff had transferred 25 cents to the defendants. Later,
the remaining extents of the property were also sold by the plaintiff.
However, the 1st plaintiff asserted that he retained 34 cents out of the
larger extent of property covered by Ext.A3, and while executing Ext.A4
R.S.A Nos.201, 202 and 204 of 2026 7 2026:KER:46452
sale deed, the 1st plaintiff had transferred only 25 cents of the plaint
schedule property (Exts.A4 and A5 (a) series). However, the plaintiffs
allege that when the defendants executed a sale deed in the year 1995,
[Ext.A12 dated 18.8.1995], a larger extent of property was included
therein, which includes the balance extent of property that the 1st plaintiff
retained under Ext.A3. Initially, in the year 1995, the plaintiffs had filed a
suit as O.S. No.475 of 1995. Subsequently, the suit was dismissed as
withdrawn with liberty to file a fresh suit on the same cause of action.
Later, O.S. No.238 of 2001 was filed. During the pendency of the suit, it is
stated that the properties were measured out with the help of the Taluk
Surveyor, and since there was a defect in the plaint schedule property, the
said suit was also withdrawn with liberty to file a fresh suit. Hence, O.S.
No.459 of 2005 has been instituted by the plaintiffs. Initially, the relief
sought for in O.S. No.459 of 2005 was only for an injunction restraining
the defendants from trespassing into the plaint schedule property.
However, during the pendency of the suit, the other two suits happened
to be filed wherein, the plaintiffs sought a prayer for fixation of the
boundary as well as cancellation of the sale deed executed in the year 1995.
In the suit, initially, a commission was taken out, and the commission
report was filed on 27.7.2012. Later, four (4) other reports were submitted
R.S.A Nos.201, 202 and 204 of 2026 8 2026:KER:46452
on 16.3.2013, 24.6.2013, 5.4.2018, and 2.11.2019. The commissioner
identified the plaint schedule property with the help of a surveyor. Both
the commissioner and surveyor were examined before the trial court. The
trial court, on appreciation of the oral and documentary evidence,
concluded that though liberty was granted to the plaintiffs in O.S. No.238
of 2001, the relief sought for qua the cancellation of the deed is barred by
limitation. To arrive at this conclusion, the trial court relied on the
statement made by the 1st plaintiff during his cross-examination, wherein
he clearly admitted that he was aware of the execution of Ext.A12 deed.
Resultantly, all the three suits were dismissed. Aggrieved, the plaintiffs
preferred A.S. Nos.6,7 and 8 of 2020 before the Additional District
Court-III, North Paravur, which were dismissed on 30.10.2025. Hence,
the present appeals.
2. Heard Smt. Jeena Joseph, the learned counsel appearing for the
appellants and Sri. M.P. Ashok Kumar, the learned counsel appearing for
respondents 2 to 4 in R.S.A. No.201 of 2026, who are respondent Nos.3 to
5 in R.S.A. No.202 of 2026.
3. Smt. Jeena Joseph, the learned counsel appearing for the
appellants, asserted that since the commissioner clearly identified the
plaint schedule property, which is in possession of the 1st plaintiff and
R.S.A Nos.201, 202 and 204 of 2026 9 2026:KER:46452
retained by him under Ext.A3 deed, the relief sought for was sustainable.
She further pointed out that although the prayer for declaration of title
was deleted, since there is no cloud on the title of the plaintiffs, even
without seeking for a declaratory relief, the prayer for fixation of boundary
and consequential injunction was maintainable. The learned counsel
further pointed out that since the title of the defendants is confined to 25
cents covered by Ext.A12 deed, the defendants cannot raise a plea that
they are entitled to transfer more extent of property than what is covered
by the parent documents.
4. Per contra, Sri. M.P. Ashok Kumar, the learned counsel,
submitted that the concurrent findings rendered by the courts below
touching upon the issue as to whether there exists any excess land with
the plaintiffs after execution of Exts.A4 and A5 series cannot be
adjudicated in this appeal since both the courts below have concurrently
found on the basis of appreciation of the evidence that there exists no such
extent of land. That apart, the relief for cancellation of Ext.A12 sale deed
is certainly barred by limitation inasmuch as the suit is filed beyond the
period of limitation mentioned under Article 59 of the Limitation Act,
1963.
5. I have considered the submissions raised across the Bar, perused
R.S.A Nos.201, 202 and 204 of 2026 10 2026:KER:46452
the judgments of the courts below, and the records of the case.
6. The primary question which arises for consideration of this Court
is whether any substantial question of law arises for consideration in these
appeals based on the rival submissions raised across the bar. In order to
sustain their plea, the plaintiffs must establish that the suit is filed within
the prescribed period of limitation. O.S. No.475 of 1995 was filed for
injunction, which was withdrawn with liberty to file a fresh suit on the
same cause of action, and accordingly, O.S. No.238 of 2001 was filed. In
none of these suits, the plaintiffs/appellants herein deemed it appropriate
to seek a relief for cancellation of the deed executed by the defendants in
the year 1995. The question is whether the plaintiffs were aware of the said
transaction.
7. Admittedly, Ext.A12 is a registered deed. Therefore, the plaintiffs
cannot plead ignorance of the execution of the deed because the principles
of constructive notice enshrined under Section 3 of the Transfer of
Property Act, 1882 will certainly apply. That apart, in O.S. No.238 of
2001, the plaintiff had included 19 cents of the plaint schedule property,
whereas in the present case, it was changed to 34 cents. No supporting
documents have been produced before the courts below to sustain the plea
that the plaintiffs held excess land after the sale of the respective extents
R.S.A Nos.201, 202 and 204 of 2026 11 2026:KER:46452
covered by Exts.A4 and A5 series.
8. Still further, the clear admission of the 1st plaintiff, while being
cross-examined by the defendants, that he was aware of the execution of
Ext.A12 deed is a clear indication that the present suit seeking cancellation
of the deed is barred by limitation.
9. Yet another aspect which this Court must consider is whether in
the absence of any prayer for a declaration of title, the consequential relief
in the form of an injunction and fixation of boundary will sustain. Though
it is asserted before this Court that the plaintiffs have balance extent of
property under Ext.A3, the evidence speaks otherwise. The courts below
relied on the evidence of PW2, the commissioner, and PW3, the surveyor,
to conclude that the plaintiffs have sold the entire property covered by
Ext.A3. Moreover, the reports were closely analysed by the courts below,
and the reports were accepted while concluding that there is no balance
extent of property available. Since these findings are rendered based on
the appreciation of evidence, this Court, while exercising the powers
under Section 100 of the Code of Civil Procedure, will be slow to
reappreciate the said evidence and come to a different conclusion.
Moreover, the defendants had specifically disputed the availability of the
balance extent of property at the hands of the plaintiffs covered by Ext.A3.
R.S.A Nos.201, 202 and 204 of 2026 12 2026:KER:46452
That be so, the conscious relinquishment of the claim by the plaintiffs qua
the relief for declaration of title is detrimental to the cause projected.
Resultantly, this Court is of the view that no substantial question of
law arises for consideration in these appeals. Accordingly, the appeals fail
and are dismissed.
Sd/-
EASWARAN S.
JUDGE
NS
