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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.ANIL KUMAR WEDNESDAY, THE 17TH DAY OF NOVEMBER, 2021 / 26TH KARTHIKA, 1943 RSA NO. 809 OF 2013 [AGAINST THE JUDGMENT & DECREE DTD.15.2.2013 IN AS
180/2007 OF SUB COURT, PERUMBAVOOR, ERNAKULAM ARISING FROM THE JUDGMENT AND DECREE DTD.10.10.2002 IN OS 44/1997 OF MUNSIFF COURT, PERUMBAVOOR, ERNAKULAM]
APPELLANTS/APPELLANTS 1 AND 3 TO 5/FIRST PLAINTIFF AND THE LEGAL REPRESENTATIVES OF THE DECEASED SECOND PLAINTIFF:
1 RAVEENDRAN NAIR, AGED 66 YEARS, S/O NARAYANAN NAIR, KARIPPURATH HOUSE, ELAMBAKAPPILLY KARA, VENGOOR WEST VILLAGE
683575
2 RAJESH, AGED 41 YEARS, S/O RAVEENDRAN NAIR, KARIPPURATH HOUSE, ELEMBAKAPPILLY KARA, VENGOOR WEST VILLAGE, 683575
3 MEERA, AGED 43 YEARS, D/O RAVEENDRAN NAIR, KARIPURATH HOUSE, ELEMBAKAPPILLY KARA, VENGOOR WEST VILLAGE, 683575
4 THARA, AGED 38 YEARS, D/O RAVEENDRAN NAIR, KARIPPURATH HOUSE, ELAMBAKAPPILLY KARA, VENGOOR WEST VILLAGE
683575 BY ADVS.SRI.AJITH VISWANATHAN SRI.P.VISWANATHAN (SR.)
RESPONDENTS/RESPONDENT/DEFENDANT:
1 RAJAPPAN NAIR, (DIED) (LRS IMPLEADED)
AGED 77 YEARS NEPHEW OF NARAYANAN NAIR, PERINCHERY MADATHIL PUTHEN HOUSE, KURICHILAKODE KARA, KODANAD VILLAGE, 683575 (AS PER ORDER DATED 29.09.2016 IN MEMO VIDE CF.397/2016 DATED 13.01.2016 THAT THE DEATH OF THE SOLE RESPONDENT IS RECORDED)
ADDL.R2 LATHA RAJU, AGED 48, D/O.RAJAPPAN NAIR, PERINCHERY PUTHEN VEEDU, KODANADU P.O., KURICHELAKODE, PIN CODE-683 544.
ADDL.R3 SANAL KUMAR, AGED 42, S/O.RAJAPPAN NAIR, PERINCHERIL PUTHEN VEEDU, VALLIYOORKAVU, MANAMTHAVADI, WAYANAD.
(LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 2 AND 3 AS PER THE ORDER DATED 19.03.2018 IN IA.421/2018.)
BY ADV SRI.V.RAJENDRAN (PERUMBAVOOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2021, ALONG WITH RSA.810/2013, THE COURT ON 17.11.2021 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.ANIL KUMAR WEDNESDAY, THE 17TH DAY OF NOVEMBER 2021 / 26TH KARTHIKA, 1943 RSA NO. 810 OF 2013 [AGAINST THE JUDGMENT & DECREE DTD.15.2.2013 IN AS
181/2007 OF SUB COURT, PERUMBAVOOR, ERNAKULAM ARISING FROM THE JUDGMENT AND DECREE DTD.10.10.2002 IN OS 112/1997 OF MUNSIFF COURT, PERUMBAVOOR, ERNAKULAM]
APPELLANTS/FIRST RESPONDENT/FIRST DEFENDANT:
1 RAVEENDRAN NAIR, (DIED) (LHRS IMPLEADED)
AGED 69 YEARS S/O NARAYANAN NAIR, KARIPPURATH HOUSE, ELAMBAKAPPILLY KARA, VENGOOR WEST VILLAGE, PIN CODE-683575 ADDL.A2 RAJESH, AGED 44 YEARS, S/O.LATE RAVEENDRAN NAIR, KARIPPURATH HOUSE, ELAMBAKAPPILLY KARA, VENGOOR WEST VILLAGE, PIN CODE-683575 ADDL.A3 MEERA, AGED 46 YEARS, D/O.LATE RAVEENDRAN NAIR, KARIPPURATH HOUSE, ELAMBAKAPPILLY KARA, VENGOOR WEST VILLAGE, PIN CODE-683 575.
ADDL.A4 THARA, AGED 41 YEARS D/O.LATE RAVEENDRAN NAIR, KARIPPURATH HOUSE, ELAMBAKAPPILLY KARA, VENGOOR WEST VILLAGE, PIN CODE-683 575.
(LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER THE ORDER DATED
10.04.2017 IN IA.2620/2016.)
BY ADVS.
P.VISWANATHAN (SR.)
SRI.AJITH VISWANATHAN RESPONDENTS/APPELLANT AND 2ND RESPONDENT/PLAINTIFF AND
2ND DEFENDANT:
1 RAJAPPAN NAIR, (DIED)
AGED 77 YEARS NEPHEW OF NARAYANAN NAIR, PERINCHERRY MADATHIL PUTHEN HOUSE, KURICHILAKODE KARA, KODANAD VILLAGE,PIN- 683 575.
LRS IMPLEADED AS ADDL.RESPONDENTS 3 AND 4
2 NARAYANAN NAIR AGED 70 YEARS NEPHEW OF NARAYANAN NAIR, PERINCHERRY MADATHIL PUTHEN HOUSE, KURICHILAKODE KARA, KODANAD VILLAGE 683575 ADDL.R3 LATHA RAJU, AGED 48, D/O.RAJAPPAN NAIR, PERINCHERRY PUTHEN VEEDU, KURICHELAKODE, PIN-683 544.
ADDL.R4 SANAL KUMAR, AGED 42, S/O.RAJAPPAN NAIR, PERINCHERIL PUTHEN VEEDU, VALLIYOORKAVU, MANAMTHAVADI, WAYANAD.
(LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 3 AND 4 AS PER THE ORDER DATED 01.02.2018 IN IA.878/2017)
BY ADVS.
SRI.V.RAJENDRAN (PERUMBAVOOR)(CAVEATOR)
SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN TRIPUNITHURA SRI.V.RAJENDRAN PERUMBAVOOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2021, ALONG WITH RSA.809/2013, THE COURT ON 17.11.2021 DELIVERED THE FOLLOWING:
J U D G M E N T ('C.R')
The present regular second appeals are directed against the impugned common judgment and decree dated 15.02.2013 in A.S.Nos.180/2007 and 181/2007 of the Sub Court, Perumbavoor (hereinafter referred to as 'the first appellate court') arising from the judgment and decree dated 10.10.2002 in O.S.Nos. 44/1997 and 112/1997 of the Munsiff's Court, Perumbavoor (hereinafter referred to as 'the trial court').
2. O.S.No.112/1997 was filed by the plaintiff praying for a decree for cancellation of Ext.A2 sale deed No.1480/1991 executed by the second defendant in favour of the first defendant and for recovery of possession of 62 cents of land devolved upon the plaintiff and the second defendant equally and other consequential reliefs. O.S.No.44/1997 was filed by the first defendant in O.S.No.112/1997 seeking damages and consequential permanent prohibitory injunction, restraining the plaintiff in O.S.No.112/1997 from interfering with his possession over the plaint schedule property.
3. Both the suits were tried together treating O.S.No.112/1997 as the leading case. The parties are hereinafter referred to as referred in O.S.No.112/1997 unless otherwise stated.
4. The trial court found that the evidence available on record are not sufficient to prove the damages alleged in O.S.No.44/1997 and that the plaintiffs have failed to locate the exact boundaries, lie and extent of the plaint schedule property in O.S.No.44/1997. Thus, the trial court dismissed the suit for permanent prohibitory injunction and damages. At the same time, the trial court found that the plaintiff in O.S.No.112/1997 was aware of the execution of Exts.A2, B3 and B4, when he came back to his native place in the year 1993. The trial court further held that the dispute with respect to the property including the plaint schedule property was settled in mediation and on the basis of such settlement, Ext.B1 partition deed was executed. The trial court took the view that the plaintiff has relinquished his claim over the plaint schedule property by accepting Exts.A2, B3 and B4.
5. Assailing the common judgment and decree passed in O.S.Nos. 44/1997 and 112/1997, the plaintiff and the defendants filed A.S.Nos. 181/2007 and 180/2007 respectively before the first appellate court. The first appellate court held that the execution of Ext.A2 sale deed without taking recourse through the due process of law is void and the same cannot confer any title upon the first defendant. Hence, the first appellate court passed a decree setting aside Ext.A2 sale deed. Consequential recovery of possession of the plaint schedule property was also granted. Accordingly, the decree passed by the trial court in O.S.No. 112/97 was set aside. A.S.No.181/2007 was allowed and A.S.No.180/2007 was dismissed.
6. The plaintiff's case was that he was the owner to the extent of one-half share of the land in dispute along with his brother- the second defendant. The plaintiff was not in station for a long time. He was residing at Mananthavady. In 1993, when he visited his native place, in order to get share over his property, he came to know that the second defendant had already executed Ext.A2 sale deed in favour of the first defendant. In Ext.A2, it is stated that when the whereabouts of the plaintiff have not been known for several years, he is presumed to be dead. According to the plaintiff, he had never sold the land. The sum and substance of his contention is that the sale to the extent of his share did not confer any right on the first defendant. Hence, O.S.No.112/1997 was filed for cancellation of Ext.A2 sale deed executed by the second defendant in favour of the first defendant and consequential recovery of possession of 62 cents of land devolved upon the plaintiff and second defendant jointly.
7. The main contention of the first defendant is that he purchased the plaint schedule property from the second defendant for valuable consideration and he was a bona fide purchaser for the value. The
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