A. BALAN, S/O. ARUMUGHAN, KAMMANTHARA, VADAKKENCHERRY AMSOM, ALATHUR TALUK PALAKKAD DISTRICT; A. MANI, S/O. ARUMUGHAN; RAMAKRISHNAN, S/O. VELLA ASARI; SIVANARAYANAN, S/O. VELLA ASARI v. RAMAN, S/O. KANDAN; DAIVANY, W/O. CHELLAN; MANI, S/O. CHELLAN; THANKAMMAL, W/O.MANI

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 11TH DAY OF JUNE 2013/21ST JYAISHTA 1935** ## **RSA.No. 442 of 2006 ( )** **-----------------------AGAINST THE JUDGMENT IN AS 164/2000 of COURT OF DISTRICT JUDGE, PALAKKAD** **AGAINST THE JUDGMENT IN OS 415/1996 of MUNSIFF COURT, ALATHUR ===========================** ## **APPELLANTS/RESPONDENTS 4 TO 7/DEFENDANTS 4 TO 7:** **--------------------------------------------------------------------------------------** **1. A. BALAN, S/O. ARUMUGHAN, KAMMANTHARA, VADAKKENCHERRY AMSOM, ALATHUR TALUK PALAKKAD DISTRICT.** ## **2. A. MANI, S/O. ARUMUGHAN,** **KAMMANTHARA, VADAKKANCHERRY AMSOM, ALATHUR TALUK PALAKKAD DISTRICT.** **3. RAMAKRISHNAN, S/O. VELLA ASARI, KAMMANTHARA, VADAKKANCHERRY AMSOM, ALATHUR TALUK PALAKKAD DISTRICT.** ## **4. SIVANARAYANAN, S/O. VELLA ASARI,** - **KAMMANTHARA, VADAKKANCHERRY AMSOM, ALATHUR TALUK PALAKKAD DISTRICT.** ## **BY ADV. SRI.O.RAMACHANDRAN NAMBIAR** ## **RESPONDENTS/APPELLANT AND RESPONDENTS 1 TO 3/ PLAINTIFF AND DEENDANTS 1 TO 3:** **---------------------------------------------------------------------------------** ## **1. RAMAN, S/O. KANDAN,** **KAMMANTHARA, VADAKKANCHERRY AMSOM AND DESOM ALATHUR TALUK, PALAKKAD DISTRICT.** ## **2. DAIVANY, W/O. CHELLAN, KAMMANTHARA, VADAKKANCHERRY AMSOM, ALATHUR TALUK PALAKKAD DISTRICT.** **3. MANI, S/O. CHELLAN, KAMMANTHARA, VADAKKANCHERRY AMSOM, ALATHUR TALUK PALAKKAD DISTRICT.** ## **4. THANKAMMAL, W/O.MANI,** **KAMMANTHARA, VADAKKANCHERRY AMSOM, ALATHUR TALUK PALAKKAD DISTRICT.** **R,R2,3,4 BY ADV. SRI.BINU.B. R,R1 BY ADV. SRI.G.SHRIKUMAR R,R1 BY ADV. SRI.SREEJITH S.NAIR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-062013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SD** N.K. BALAKRISHNAN, J. --------------------------------------R.S.A.No. 442 OF 2006 --------------------------------------Dated this the 11[th] day of June, 2013. ## JUDGMENT Defendants 4 to 7 in a suit for recovery of possession are the appellants herein. The plaintiff contended that the plaint schedule property originally belonged to his grandfather, who obtained it in a partition deed of 1917 and ultimately it came to the hands of the plaintiff. It was also contended that landlord's right in the said property was purchased by him through the Land Tribunal for which 'pattayam' was issued. It is contended that the defendants attempted to trespass into the said property and so O.S.No.20/1980 was filed for injunction against defendants 1 to 3. That suit was dismissed finding that the plaintiff was not in possession of the property. The appeal filed against the same was also dismissed. Thereafter, the present suit was filed for recovery of possession on the strength of title. 2. Defendants 1 to 3 denied the plaintiff's title. It was also contended that they were residing in the house situated in the **2** _R.S.A.No.442/2006_ plaint schedule property. Further, it was contended that the plaintiff and his mother orally sold the property to the 1[st] defendant for a consideration of Rs.75/- and as such, the plaintiff has no title to the property. It was further contended that the plaintiff's title, if any, is lost by adverse possession and limitation. 3. During the pendancy of the suit, defendants 1 to 3 sold the property to defendants 4 to 7. They also reiterated the contentions raised by defendants 1 to 3. It was also contended that they put up substantial constructions in the suit property and that they are bona fide purchasers. 4. Before the trial court, PW1 was examined and Exts.A1 to A5 were marked. On the side of the defendants, DW1 was examined and Exts.B1 to B10 were marked. 5. The trial court dismissed the suit as against which the plaintiff filed appeal. Learned Additional District Judge, after elaborately discussing the entire evidence, found that the plea of adverse possession and limitation set up by the defendants is untenable. It was held by the appellate court that the defendants had contended that they obtained ownership of the property as **3** _R.S.A.No.442/2006_ per an oral sale and so their possession cannot be in denial of the plaintiff's title to the property. Though the suit filed by the plaintiff in 1980 was dismissed and the present suit O.S.No.415/1996 was filed only in 1996, holding that the defendants' possession could not be proved to be adverse to that of the plaintiff, the plea raised by the defendants was turned down and thus a decree for recovery of possession was passed. 6. The learned counsel for the appellants, who are actually the subsequent purchasers (defendants 4 to 7) has argued at length pointing out that the appellate court misdirected itself in considering the two pleas. The plea originally raised by the defendants is one of oral sale and the other is of adverse possession from the date of filing of the first suit ie; from 15.02.1980. The learned counsel submits that the fact that the defendants can raise alternate pleas of oral sale and the other regarding adverse possession asserting hostile title against the true owner, was not properly considered by the courts below. 7. Hence, the following substantial question of law can be re-framed. “Is it not legal and possible for the defendants to **4** _R.S.A.No.442/2006_ contend that they have prescribed title by adverse possession and limitation, though an alternate plea of oral sale was also set up?”. 8. Regarding the plea of adverse possession, it is trite law that a person who claims title to a property by adverse possession must definitely allege and prove as to how and when the adverse possession commenced and what was the nature of his possession and whether the fact of his adverse possession was known to the real owner. If the original owner does not come forward and assert his title by the process of law within the period prescribed, his right is extinguished and the possessory owner acquires the absolute title. 9. It is also argued by the learned counsel for the appellants that before the lower appellate court the appellants could not enter appearance since no notice was actually served on them. But the learned counsel submits that the defendants who were the respondents in appeal have actually avoided the service of notice. But however the lower appellate court has found that the notice sent to the respondents in the appeal was actually refused **5** _R.S.A.No.442/2006_ by them. The learned senior counsel appearing for the plaintiff/respondents herein submits that though the appellants were treated ex parte, the learned Additional District Judge has elaborately dealt with the entire matter from all angles and it was not a one sided approach. Therefore, though the appellants herein were set ex parte by the lower appellate court, no prejudice was caused to them. The lower appellate court has considered all the points. 10. When the plaintiff established title to the suit property, he is entitled to a decree for possession, unless his right to the suit property was extinguished, by reason of the defendant being in adverse possession for a period of twelve years prior to the suit [see **L.N. Aswathama and another v. P. Prakash [2009 (13)SCC 229** ]. In that case, one plea raised by the defendants was that they were in adverse possession of the property. The other plea was that they came into possession under a sale agreement. It was contended that since the defendants claim to be in possession of the property under a sale agreement, he has to disclaim his right thereunder and assert his independent **6** _R.S.A.No.442/2006_ hostile adverse possession to the knowledge of the transferor or his successor in title. Since the defendants set up claims under Section 53-A of Transfer of Property Act, 1882, they admit by implication that they came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit. ## 11. Considering the two inconsistent pleas, it was held by the apex court in the case cited supra thus: “As the defendant therein admitted that he came into possession lawfully under an agreement of sale and continued to remain in such possession, there was no adverse possession. This case is different, as the defendant did not contend that he entered possession under or through the plaintiffs. His case was that he was in possession as a tenant under Gowramma from 1962 and he became the owner by purchasing the plot from Gowramma in 1985. He alternatively contended that if Gowramma did not have title and consequently his claim based on title was rejected, then having regard to the fact that he had been in possession by setting up title in Gowramma and later in himself, his possession was hostile to the true owner; and if he was able to make out such hostile possession continued for more than 12 years, he could claim to have perfected his title by adverse possession. There is considerable force in he contention of the defendant provided he is able to establish adverse possession for more than 12 years. When a person is in **7** _R.S.A.No.442/2006_ possession asserting to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts.” Therefore, the learned counsel for the appellants submits that though case of oral sale was set up, the consistent case of the appellants was that from the filing of the earlier suit in 1980, their possession of the suit property was adverse to that of the plaintiff and that they had the required animus poussidendi. Though alternate plea may be available still considering the entire evidence and circumstances, the courts below found that the plea of adverse possession and limitation set up by the appellants must fall to the ground since there is no acceptable evidence to show that their possession was adverse to that of the plaintiff. 12. It is vehemently argued by the learned counsel that when a suit for injunction was filed against the defendants and when they resisted the suit, it is only reasonable to think that they were asserting possession of the suit property in denial of the plaintiff's right over the same and as finally, the court found **8** _R.S.A.No.442/2006_ in the injunction suit that the plaintiff was not in possession and the defendants were actually in possession of the property. It must certainly be held that the said possession which commenced atleast from the date of filing of the first suit (for injunction) was adverse to that of the plaintiff. Since such a possession was open and continuous and was adverse to that of the plaintiff, it must certainly be found that the defendants' possession was in denial of the plaintiff's title, it is further argued. It is also contended that defendants 1 to 3 had put up certain constructions and subsequently defendants 4 to 7 also put up such constructions in the said property. Though such acts are also be considered as acts done by the defendants in assertion of their title and in denial of the plaintiff's title, these aspects, according to the learned counsel, were not duly considered by the lower court. 13. The learned counsel for the respondent would submit that since the defendants set up oral sale so as to claim right over the property, their possession cannot be adverse to that of the plaintiff and that howsoever long the period of possession **9** _R.S.A.No.442/2006_ may be, still it cannot be said to be adverse to that of the plaintiff. The learned senior counsel further submits that though mutually inconsistent pleas can be raised still when the party proceeds for trial, he must opt to have one of the pleas, for otherwise, the two pleas would be mutually inconsistent and destructive. According to the learned senior counsel, to prescribe title by adverse possession, the possession must commence from wrong, whereas, in this case the defendants by setting up an oral sale, asserted possession by lawful means which cannot be in derogation of the true owner's title. It is not specifically stated by the defendants as to when did they give up the plea of oral sale or when did they actually commence their possession adverse to that of the plaintiff. If from the very beginning, the plea raised by the defendants was one of adverse possession then the plaintiffs' position would have been different since the suit for injunction filed in 1980 was dismissed and the appeal was also dismissed on the very same ground but by setting up a mutually destructive plea, the defendants cannot contend that their possession was in denial of the plaintiffs' title. It is also **10** _R.S.A.No.442/2006_ pointed out that the defendants, who set up adverse title against the plaintiff, have also contended that they had obtained purchase certificate from the Land Tribunal which would make the position of the defendants pejorative because when they contend that they are cultivating tenants under the plaintiff and they obtained purchase certificate from the Land Tribunal, they are admitting that their possession was not adverse to that of the plaintiff. So much so, their possession cannot be in denial of the plaintiffs' title. So on this ground also the plea raised by the defendants that they have prescribed title by adverse possession and limitation cannot be sustained. 14. The learned counsel for the appellants herein submits that the defendants 4 to 7, who are the subsequent purchasers, are landless poor persons and they had constructed small houses in the said property and effected other improvements as well. Considering all the circumstances, it cannot be said that the appellants are trespassers so as to deny the value of improvements/constructions effected by them in the suit property. Therefore, during the stage of execution, the value of **11** _R.S.A.No.442/2006_ improvements has to be ascertained and the plaintiff should be directed to pay to the appellants the value of improvements. In the result, this R.S.A. is dismissed, but the value of improvements effected by the defendants/appellants in the suit property shall be ascertained during execution proceedings for which Commission can be issued, if applied for, by the appellants. The appellants are also at liberty to produce documents, if any, with regard to the improvements effected by them in the said property. The decree holder/respondent has to pay to the appellants the value so determined. The defendants were in possession of the property for quite long time. Hence, during execution, the execution court will try to explore the possibility of settlement as well. Sd/N.K. BALAKRISHNAN JUDGE sd