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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941
RFA.No.536 OF 2011
AS 303/09 TRANSFERRED FROM DISTRICT COURT, KOLLAM, AS PER ORDER
DATED 22.03.11 IN RFA 581/09
-----
APPELLANTS/PLAINTIFFS:
1
DR.P.K.RAJAN,
AGED 70 YEARS, S/O KUNJU PILLAI, SWAPNA,
M.C. 767, VADAKKUMBHAGOM STREET, KOLLAM EAST VILLAGE.
(DIED)
2
K. SAVITHRI,
AGED 65 YEARS, HOUSEWIFE, W/O P.K RAJAN,
SWAPNA, M.C. 767, VADAKKUMBHAGOM STREET,
KOLLAM EAST VILLAGE.
* ADDL. A3 IMPLEADED
ADDL.A 3
S.R. SREEJA,
AGED 45 YRS, D/O LATE P.K RAJAN, R/AT, 'SWAPNA' ,
VRA -169, VADAKKUMBHAGOM, KOLLAM -1.
* [THE LEGAL HEIR OF THE DECEASED 1ST APPALLENT IS IMPLEADED AS
ADDL A3 VIDE ORDER DTD 19/7/13 IN IA 1259/13]
BY ADVS.
SRI.T.KRISHNAN UNNI (SR.)
SRI.A.B.MOHANAKUMAR
RESPONDENTS/DEFENDANTS:
1
BABURAJAN, AGED 52 YEARS, S/O SANKARAN THAMBURU,
THEKKEVILA STREET.
2
JYOTHI, AGED 44 YEARS, TEACHER,
W/O BABURAJAN,
-DO-
RFA.No.536 OF 2011
-2-
** ADDL. R3 & R4 IMPLEADED
ADDL.R 3
S.R.SREERAJ,
S/O LATE P.K RAJAN,
R/AT, 'SWAPNA', VRA -169, VADAKKUMBHAGOM, KOLLAM -1.
ADDL.R 4
MANOJA,
D/O LATE P.K RAJAN, R/AT, 'SWAPNA', VRA -169,
VADAKKUMBHAGOM, KOLLAM -1.
** [THE LEGAL HEIRS OF THE DECEASED 1ST APPALLENT ARE IMPLEADED AS
ADDL R3 & R4 VIDE ORDER DTD 19/7/13 IN IA 1259/13]
R1 BY ADV. SRI.P.JACOB VARGHESE (SR.)
R1 BY ADV. SMT.P.LISSY JOSE.
R1 BY ADV. SRI.S.SANTHOSH KUMAR
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
20.08.2019, ALONG WITH RFA.581/2009, RFA.502/2011, THE COURT ON
26.08.2019 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941
RFA.No.581 OF 2009
AGAINST THE JUDGMENT DATED 30.07.09 IN OS 44/2003 OF ADDITIONAL
SUB COURT, KOLLAM
-----
APPELLANTS/PLAINTIFFS:
1
P.K.RAJAN,
S/O.KUNJUPILLAI, SWAPNA, VADAKKUMBHAGOM, KOLLAM.
[DIED]
2
K.SAVITHRI, W/O.P.K.RAJAN,
SWAPNA, VADAKKUMBHAGOM, KOLLAM.
* ADDL. A3 IMPLEADED
ADDL. A3
S.R. SREEJA, AGED 45, D/O THE LATE P.K.RAJAN,
R/A 'SWAPNA', VRA - 169, VADAKKUMBHAGOM,
KOLLAM-1.
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SRI.A.B.MOHANAKUMAR
RESPONDENTS/DEFENDANTS:
1
BABURAJAN,
THAMBURU,
MUNDAKKAL,
KOLLAM.
2
JYOTHI, W/O.BABURAJAN,
THAMBURU, MUNDAKKAL, KOLLAM.
3
S.R.SREEJITH,
SWAPNA, VADAKKUMBHAGOM, KOLLAM,
PRESENT ADDRESS ASHOK NAGAR PO, KARNATAKA.
RFA.No.581 OF 2009 -2-
* ADDL. R4 AND R5 IMPLEADED
ADDL. R4
S.R.SREERAJ, R/A 'SWAPNA', VRA - 169, VADAKKUMBHAGOM,
KOLLAM-1.
ADDL. R5
MANOJA, R/A 'SWAPNA', VRA - 169, VADAKKUMBHAGOM,
KOLLAM-1
* [LEGAL HEIRS OF THE DECEASED 1ST APPELLANT ARE IMPLEADED AS
ADDL. A3 AND ADDL. R4 & ADDL. R5 VIDE ORDER DATED 19.07.2013 IN IA
1100/2013].
R1 BY ADV. SRI.P.JACOB VARGHESE (SR.)
R1 BY ADV. SMT.P.LISSY JOSE.
R1 BY ADV. SRI.S.SANTHOSH KUMAR
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
20.08.2019, ALONG WITH RFA.502/2011, RFA.536/2011, THE COURT ON
26.08.2019, DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941
RFA.No.502 OF 2011
AS 284/09 TRANSFERRED FROM DISTRICT COURT, KOLLAM, AS PER ORDER
DATED 22.03.11 IN RFA 581/09
-----
APPELLANTS (ADDL. DEFENDANTS 1 & 2 IN OS 82/06):
1
P.K.RAJAN,
AGED 70 YEARS,
S/O.KUNJU PILLAI, RESIDING AT “SWAPNA”
VADAKKUMBHAGAM, KOLLAM (DIED)
IT IS RECORDED THAT THE 1ST APPELLANT IS NO MORE,
VIDE ORDER DATED 20.02.13.
2
SAVITHRI,
AGED 65 YEARS,
W/O.P.K.RAJAN, “SWAPNA”, VADAKKUMBHAGAM, KOLLAM.
* ADDL. A3 IMPLEADED
3
S.R.SREEJA,
AGED 45 YEARS,
D/O. LATE P.K.RAJAN, RESIDING AT “SWAPNA”, VRA - 169,
VADAKKUMBHAGAM, KOLLAM-1
* [LEGAL REPRESENTATIVE OF DECEASED 1ST APPELLANT IS IMPLEADED AS
ADDITIONAL 3RD APPELLANT AS PER ORDER DATED 19.07.13 IN IA
1270/13]
BY ADVS.
SRI.T.KRISHNAN UNNI (SR.)
SRI.A.B.MOHANAKUMAR
RESPONDENTS (PLAINTIFFS 1 & 2 IN OS 82/06):
1
BABU RAJAN,
AGED 59 YEARS,
S/O.SANKARAN, THAMBURU, THEKKEVILA CHERI,
MUNDAKKAL VILLAGE, KOLLAM TALUK.
RFA.No.502 OF 2011 -2-
2
SMT.JYOTHI,
AGED 52 YEARS,
W/O.BABURAJAN, THAMBURU, THEKKEVILA CHERI,
MUNDAKKAL VILLAGE, KOLLAM TALUK.
3
S.R.SREERAJ,
S/O.DR.P.K.RAJAN, ORIGINALLY BELONGING TO
M.C.767/XVI, SWAPNA, VADAKKUMBHAGAM, KOLLAM.
NOW ON EMPLOYMENT AND RESIDING AT FLAT NO.E.702,
KRISHNA APARTMENTS, PLOT NO.10, SECTOR-36, KANOTHE,
NAVI MUMBAI-410209.
** ADDL. R4 IMPLEADED
ADDL. R4
MANOJA, D/O DR.P.K.RAJAN,
R/A 'SWAPNA', VRA-169, VADAKKUMBHAGOM, KOLLAM-1
** [LEGAL REPRESENTATIVE OF DECEASED 1ST APPELLANT IS IMPLEADED AS
ADDITIONAL 4TH RESPONDENT AS PER ORDER DATED 19.07.13 IN IA
1270/13]
R1-2 BY ADV. SMT.P.LISSY JOSE.
R1-2 BY ADV. SRI.S.SANTHOSH KUMAR
R1-2 BY ADV. SRI.P.JACOB VARGHESE (SR.)
R3 BY ADV. SRI.P.RADHAKRISHNAN
R3 BY ADV. SRI.MADHU RADHAKRISHNAN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
20.08.2019, ALONG WITH RFA.581/2009, RFA.536/2011, THE COURT ON
26.08.2019 DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = =
RFA Nos.536, 502 of 2011 &
581 of 2009
= = = = = = = = = = = = = = = = = =
Dated this the 26th day of August, 2019
Three suits were jointly tried and disposed of
by a common judgment. The same is assailed in these
appeals. The following are the suits and the
appeals therefrom:-
Sl.
No.
Number of
suit
Plaintiffs
Defendants
Relief claimed
Proceedings
before this
Court
1
O.S.44/03
1. P.K.Rajan
2. K.Savithri
1. Baburajan
2. Jyothi
3. S.R.Sreejith
Declaration of
title
and Injunction
RFA 581/09
2
O.S.420/03 1. P.K.Rajan
2. K.Savithri
1. Baburajan
2. Jyothi
Injunction
against forceful
eviction
RFA 536/11
3
O.S.82/06
1. Baburajan
2. Jyothi
1. S.R.Sreejith
2. P.K.Rajan
3. K.Savithri
Recovery of
arrears of rent
RFA 502/11
2. The subject matter involved in these
litigations is 3 Ares and 18 square metres
equivalent to 8.5 cents with the residential
building situated thereon. The property admittedly
belonged to P.K.Rajan and Savithri (hereinafter
RFA Nos.536, 502 of 2011 &
581 of 2009
:- 2 :-
referred to as the “plaintiffs”). They executed
Ext.A10 Sale Deed No.3961/96 in favour of Baburajan
and Jyothi (hereinafter referred to as the
“defendants”). O.S.44/03 is filed by the plaintiffs
contending that, they had borrowed amounts from
defendants and from strangers, and to shield the
property from creditors and to secure the debt
payable to the plaintiffs, Ext.A10 Sale Deed was
executed in favour of the plaintiffs. Ext.A10 was
in fact a sham document. It was agreed that, when
the debt due to the defendants are repaid, a
document will be registered in favour of the
plaintiffs cancelling Ext.A10. According to the
plaintiffs, the suit O.S.44 of 2003 seeking
declaration of their title is necessitated since
the defendants assert title over the property on
the strength of Ext.A10. Sreejith, the third
defendant impleaded therein as the son of the said
Rajan and Savithri.
3. In OS 420/03, the plaintiffs seek for a
prohibitory injunction against defendants, from
RFA Nos.536, 502 of 2011 &
581 of 2009
:- 3 :-
forcefully evicting them from the plaint schedule
property.
4. According to the defendants, Ext.A10 is an
outright sale in its true sense. On conveyance of
the property to them under Ext.A10, the defendants
sought for some time to vacate the premises and
accordingly they were permitted to reside in the
building under Ext.B4 rent deed in favour of
Sreejith, the son of the plaintiffs. Since they
failed to vacate the building, rent control
proceeding was initiated as RCP 11/99. In execution
of the order of eviction, the plaintiffs and their
son were evicted therefrom. The suit O.S.82/06 is
filed by the defendants (Baburajan and Jyothi),
against the plaintiffs and their son Sreejith for
recovery of arrears of rent.
5. The trial court upheld Ext.A10 sale deed. It
was held that the suit O.S.44/03 is barred by
limitation. O.S.44/03 and O.S.420/03 were dismissed
and O.S.82/06 was decreed, against which these
appeals by the plaintiffs (P.K.Rajan and Savithri).
RFA Nos.536, 502 of 2011 &
581 of 2009
:- 4 :-
6. Heard learned Senior Counsel Sri.T.Krishnanunni
and Sri.A.B.Mohanakumar on behalf of the appellants
and Sri.S.Santhosh Kumar on behalf of the
respondents.
7. O.S.44/03 which is a suit for declaration of
title is the main suit. The relief claimed therein
is for declaration of the plaintiffs' title on
finding that Ext.A10 is only a security document.
They have also prayed for a decree for prohibitory
injunction against alienation. The trial court held
that the suit being one for declaration, Article 58
of the Limitation Act applies, and the suit filed
beyond three years from the date of accrual of the
cause of action is barred by limitation. In terms
of Article 58 of the Limitation Act, time begins to
run from the date on which the right to sue first
accrues.
8. Learned counsel Sri.Mohanakumar would
vehemently contend that the suit is not one for a
mere declaration but contains a prayer for
injunction also, and the cause of action arises
RFA Nos.536, 502 of 2011 &
581 of 2009
:- 5 :-
only on i
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