IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE EASWARAN S.

FRIDAY, THE 30^TH DAY OF MAY 2025 / 9TH JYAISHTA, 1947 RSA NO. 629 OF 2021 AGAINST THE ORDER/JUDGMENT DATED 10.10.2014 IN AS NO.38 OF 2010 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -

II, MANJERI / II ADDITIONAL MACT, MANJERI ARISING OUT OF THE ORDER/JUDGMENT DATED 30.03.2010 IN OS NO.35 OF 2007 OF MUNSIFF MAGISTRATE COURT,PERINTHALMANNA APPELLANT-DEFENDANT:

KUNCHU AGED 77 YEARS SON OF KUTTANCHEERI CHAMI, KUTTANCHEERI THODI, PULMANTHOLE P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT PIN 679 323 BY ADV SRI.R.RAJESH KORMATH RESPONDENTS-PLAINTIFFS:

1 RADHA,(DIED) LHS IMPLEADED AGED 64 YEARS, WIFE OF BALAKRISHNAN VAIDYAR, MULLAKKAL HOUSE, NEDUNGOTTUR, SHORNUR P.O., PALAKKAD DISTRICT PIN 679 121

2 ADDL.PRASANTH BALAKRISHNAN AGED 49 YEARS SON OF BALAKRISHNAN VAIDHYAR, MULLAKKAL HOUSE, NEDUNGOTTUR P.O., SHORNUR, NOW RESIDING AT #8, 6TH CROSS, 3RD MAIN, FM KARIAPPA ROAD, 18 SASTRI NAGAR, HAL BANGALORE,560017.

3 ADDL.PRAJESH.M.B.

AGED 46 YEARS SON OF BALAKRISHNAN VAIDHYAR, MULLAKKAL HOUSE, NEDUNGOTTUR P.O. , SHORNUR, NOW RESIDING AT MULLAKKAL HOUSE, VADAKKUMMURI, MUNDAYA, GANESHGIRI P. O. , SHORNUR, PALAKKAD DISTRICT,PIN-679123.

4 ADDL.PRAVEEN BALAKRISHNAN , AGED 44 YEARS SON OF BALAKRISHNAN VAIDHYAR, MULLAKKAL HOUSE, NEDUNGOTTUR P. O. , SHORNUR, NOW RESIDING AT AH HOMES QUARTERS, HOUSE NO.5, KANAYAM ROAD, KULAPPULLI, SHORNUR, PALAKKAD DISTRICT, (IT IS RECORDED THAT ADDL.R2 TO R4 ARE THE LEGAL HEIRS OF DECEASED SOLE RESPONDENT AS PER ORDER DATED

12.08.2024 IN IN.NO.1/2024)

BY ADV SRI.K.RAKESH THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

EASWARAN S., J -------------------------------------------------------------

RSA No.629 of 2021 -------------------------------------------------------------

Dated this the 30^th day of May, 2025

JUDGMENT

The defendant in the suit for recovery of possession is the appellant.

2. The original plaintiff filed the suit for recovery of possession. During the pendency of the litigation, the original plaintiff died and the legal heirs are contesting the lis. Going by the plaint averment, the plaint A schedule property originally belonged to one Govindan Vaidhyar, who is the grandfather of the plaintiff. Later, the property devolved to them, and a partition deed was executed by deed No. 4126 of 1986 of SRO, Perinthalmanna, between the plaintiff and her sister’s, which is described as Ext.A1. Item A schedule property consists of 14 and a half cents with well defined boundaries. Item B consists of 3.75 cents of land, which is alleged to have been trespassed by the defendant. Therefore, the suit was filed for recovery of B schedule property which forms part of A schedule property. The defendant entered an appearance and contested the suit.

3. According to the defendant, the title of the plaintiff over A schedule property is disputed. According to the defendant, he derived title over the B schedule property by virtue of document No. 1342 of 1934, which is included as Item No.22, Exhibit B3. It is further contended that the property is lying contiguous on the northern side. Initially, the sister of the plaintiff filed OS No.39 of 2005 for a prohibitory as well as mandatory injunction which was dismissed by the court on the ground that the property could not be identified. It is further contended that even if the plaintiff had any right over B schedule property the same is lost by adverse possession.

4. Before the trial court, the plaintiff produced Exts. A1 to A5, and the defendant produced Exts. B1 to B8(a). Exts. C1, C2 and C3 are the reports submitted by the Advocate Commissioner. PW1 was examined on behalf of the plaintiff and Dws 1 to 3 were examined on behalf of the defendant. The trial court, based on the pleadings, framed the following issues:

1) Whether suit is barred by res judicata ?

2) Whether plaintiff has title over plaint schedule property ?

3) Whether plai