A. H. BAPPU and SULEKHA v. R. P. ZAINABA and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **MONDAY, THE 29TH DAY OF OCTOBER 2012/7TH KARTHIKA 1934** ## **SA.No. 66 of 2001 ( )** **--------------------AS.NO.31/1997 of I ADDL.DISTRICT COURT, THRISSUR O.S.NO.365/1991 OF 1 ADDL.SUB COURT, THRISSUR** **------------------------** ## **APPELLANT(S)/RESPONDENTS IN A.S.NO.31/97/DEFENDANTS IN O.S.NO.365/91:** **---------------------------------------------------------------------------------------------------------------------** - ***1. A.H.BAPPU,AGED 59 YEARS,** - **SON OF ARANGATHPARAMBIL HYDROS, RESIDING AT ARANGATHPARAMBIL HOUSE, PARUTHIPRA DESOM,** - **ENGAKKAD VILLAGE, THALAPPILLY TALUK, THRISSUR DISTIRCT. (DIED)** **2. SULEKHA, 51 YEARS,W/O.A.H.BAPPU, RESIDING AT ARANGATHPARAMBIL HOUSE, PARUTHIPRA DESOM, ENGAKKAD VILLAGE, THALAPPILLY TALUK, THRISSUR DISTIRCT.** ## ***ADDL.A3 IMPLEADED** - ***A3: BABU ANIL, AGED 32 YEARS, S/O.LATE.A.H.BAPPU,** - **RESIDING AT ARANGATHPARAMBIL HOUSE, PARUTHIPRA DESOM, ENGAKKAD VILLAGE, THALAPPILLY TALUK, THRISSUR DISTIRCT.** - **LR OF DECEASED A1 IMPLEADED AS ADDL.A3 AS PER ORDER** - **DATED 5/9/2012 IN I.A.NO.2116/2012** ***IT IS RECORDED THAT A2 IS THE LEGAL HEIR OF DECEASED A1 AS PER ORDER DATED 5/9/2012 IN I.A.NO.2117/2012** ## **BY ADV. SRI.P.GOPAKUMARAN NAIR** **SRI.C.S.DIAS** **RESPONDENT(S)/APPELLANTS IN A.S.NO.31/97/PLAINTIFFS IN O.S.NO.365/91:** - **----------------------------------------------------------------------------------------------------------------** ## **1. R.P.ZAINABA,AGED 56 YEARS,** **W/O.LATE ARANGATHPARAMBIL MOHAMMED KUTTY, NOW RESIDING AT 190, LORONG SERI, 99 TAMANSERY, KUANTAN, PAHANG, MALEYSIA.** **2/-** **sts** **-2-** ## **S.A.NO.66/2001** **2. ABDUL NASSIR,AGED 36 YEARS,** **S/O.LATE ARANGATHPARAMBIL MOHAMMED KUTTY, NOW RESIDING AT 190,LORONG SERI, 99 TAMANSERY, KUANTAN, PAHANG, MALEYSIA.** **3. NAJMA,AGED 35 YEARS,** **D/O.LATE ARANGATHPARAMBIL MOHAMMED KUTTY, NOW RESIDING AT 190,LORONG SERI, 99 TAMANSERY, KUANTAN, PAHANG, MALEYSIA.** **4. NESHIBA, AGED 27 YEARS,** **D/O.LATE ARANGATHPARAMBIL MOHAMMED KUTTY, NOW RESIDING AT 190, LORONG SERI, 99 TAMANSERY, KUANTAN, PAHANG, MALEYSIA.** ## ***LR OF DECEASED FIRST APPELLANT IMPLEADED** - ***ADDL.R5: BABY AMITHA,AGED 37 YEARS,** - **D/O.LATE A.H.BAPPU, PANICKAVEETTIL HOUSE, CHERUTHURUTHY.P.O., THRISSUR DISTIRCT-679 531** ***LR OF DECEASED A1 IMPLEADED AS ADDL.R5 AS PER ORDER DATED 5/9/2012 IN I.A.NO.2117/2012** **R1 TO R4 BY ADV. SRI.P.B.KRISHNAN SMT.S.JASMINE** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P.N.RAVINDRAN, J.** ## **-----------------------------** ## **S.A.No.66 of 2001** ## **-----------------------------Dated this the 29[th] day of October, 2012** ## **JUDGMENT** Appellants 1 and 2 are the defendants in O.S.No.365 of 1991 on the file of the Court of the Subordinate Judge of Thrissur. Respondents 1 to 4 are the plaintiffs in the suit. The first appellant/the first defendant, passed away on 21.3.2008 and thereupon, the second appellant was recorded as his legal heir and the additional third appellant and the additional fifth respondent were impleaded as his legal heirs as per orders passed on I.A.No.2116 of 2012 and I.A.No.2117 of 2012. The suit instituted by respondents 1 to 4 for recovery of possession of the plaint schedule property with mesne profits was dismissed by the trial court. Aggrieved by the decree and judgment, the plaintiffs filed A.S.No.31 of 1997 in the Court of the District Judge of Thrissur. By judgment delivered on 18.11.2000, the lower appellate court reversed the decree and judgment of the trial court and decreed the suit as prayed for. The defendants have aggrieved thereby filed this second appeal. The brief facts of the case are as follows. 2. Respondents 1 to 4 herein instituted O.S.No.365 of 1991 for recovery of possession of a parcel of land, 92 cents in extent, situated in Survey No.257 of Enkakkad Village, Thalappally Taluk, Thrissur S.A.No.66 of 2001 2 District. It was averred in the plaint that the said parcel of land was purchased by late Muhammedkutty, husband of the first plaintiff and father of plaintiffs 2 to 4 as per Ext.A2 sale deed dated 15.7.1969 executed by Thithumma, mother of late Mohammedkutty and the first defendant, that ever since the execution of Ext.A2 sale deed, late Mohammedkutty was in possession and enjoyment of the plaint schedule property, that he expired on 24.9.1987 in Malaysia, that on his death the plaint schedule property devolved on the plaintiffs and thereafter, they are in possession thereof. It was alleged that though the power of attorney of the plaintiffs was managing the property for and on their behalf, taking advantage of the fact that the real owners are residing in Malaysia, the first defendant trespassed into the plaint schedule property, occupied the building situated therein along with the second defendant in March 1986 and started residing therein. The plaint proceeds to state that on coming to know of the said act of trespass, the plaintiffs caused Ext.A3 registered notice dated 8.4.1990 to be issued calling upon the defendants to surrender possession of the property, but they did not surrender possession of the property and therefore the plaintiffs are constrained to institute the suit seeking recovery of possession of the plaint schedule property with future mesne profits. The plaint which was presented on 20.3.1991 was S.A.No.66 of 2001 3 returned inter-alia on the ground that the document authorizing the power of attorney to sign and verified the plaint on behalf of the plaintiffs had not been produced. The plaint was represented on 22.3.1991 along with Ext.A1 power of attorney. Thereupon, the plaint was numbered and on 27.3.1991, the trial court issued summons to the defendants. 3. The defendants entered appearance and filed a written statement dated 29.11.1991. In paragraph 2 thereof the defendants admitted the fact that the plaint schedule property belonged to late Muhammedkutty. They however contended that the plaintiffs are not in possession and that they have perfected title to the plaint schedule property by adverse possession, ouster and limitation. It was also contended that though the plaint schedule property is described as a parcel of land 92 cents in extent, the actual extent in the possession of the defendants is only 66 cents, that the remaining 26 cents of land is in the possession of Kavottuvalappil Kunjuvappu and Arangathuparambil Thithikutty and as they are not on the party array, the suit is liable to be dismissed for non-joinder of necessary parties. It was further contended that the plaint schedule property originally belonged to late Thithumma, mother of Mohammudkutty, the first defendant and Moidu, that at the time of purchase by Thithumma S.A.No.66 of 2001 4 there was a small house in the property, that she was residing therein along with her children, that after the first defendant’s brother Moidu left for Ernakulam, the first defendant continued to reside in the building situate in the plaint schedule property along with his wife and children, his mother and his widowed sister, that his mother expired in 1980 and that the defendants are in actual and exclusive possession of the plaint schedule property from 1972. It was also contended that Ext.A2 sale deed was never acted upon and late Mohammudkutty was never put in possession of the property. 4. In the trial court, the power of attorney of the plaintiffs was examined as PW-1 and Moidu (brother of Mohammedkutty and the first defendant) was examined as PW-2 and Exts.A1 to A4 were produced and marked on the side of the plaintiffs. On the side of the defendants, the first defendant was examined as DW-1 and Exts.B1 to B21 were produced and marked. The records produced by the Electoral Officer, Wadakanchery Constituency were marked as Exts.X1, X1(a), X2 and X2(a) and the document produced by the Kerala State Electricity Board were marked as Ext.X3. The trial court on an analysis of the pleadings and the evidence, oral and documentary available in the case held that the defendants have failed to prove their contention that they have perfected title to the plaint schedule property by adverse possession S.A.No.66 of 2001 5 and limitation. The trial court also repelled the contention of the defendants that they are in possession of only 66 cents of land and the remaining 26 cents is in possession of third parties and the plea of the defendants that the suit is bad for non-joinder of necessary parties. The trial court however held that as Ext.A1 power of attorney is in relation to the land situate in Survey No.190/4, it cannot authorize the attorney constituted thereby to sign and verify the plaint in the instant case and therefore the suit as filed is not maintainable. The suit was accordingly dismissed. 5. Aggrieved thereby, the unsuccessful plaintiffs filed A.S.No.31 of 1997 in the Court of the District Judge of Thrissur. The defendants filed a memorandum of cross objections canvassing the correctness of the findings of the court below on adverse possession and limitation and non-joinder of necessary parties. In the lower appellate court, the plaintiffs produced along with I.A.No.2689 of 2000, the power of attorney dated 12.4.1997 executed by them in favour of Sri.R.V.Aboobackar who had signed and verified the plaint, Ext.A6 possession certificate dated 30.10.2000 issued by the Village Officer, Enkakkad Village to the effect that the plaintiffs are in possession of land situated in Re-survey No.190/4 (old Survey No.257) of Enkakkad Village, Thalappilly Taluk and the basic tax receipt dated 30.10.2000 S.A.No.66 of 2001 6 evidencing payment of land tax in respect of the said parcel of land. The lower appellate court considered I.A.No.2689 of 2000 along with the appeal, allowed the said application, received the documents produced along with it into evidence, marked them as Exts.A5, A6 and A7 and held that as Ext.A1 power of attorney was really executed on 21.5.1990 at the High Commission of India in Kaula Lampur, the mere fact that it bears the date 9.4.1990 does not render it invalid. It was held that the date 9.4.1990 occurring in Ext.A1 is not the date of its execution but the date on which it was prepared, that it was executed only on 21.5.1990 and therefore, the finding of the trial court that Ext.A1 is not a valid power of attorney cannot be sustained. The lower appellate court also relied on Exts.A5, A6 and A7 and held that the reference in Ext.A1 power of attorney is really to the land situated in Survey No.257 of Enkakkad Village, Thalappilly Taluk, Thrissur District and that the survey number mentioned in Ext.A1 is the re-survey number. The lower appellate court also considered the rival contentions and held that the finding of the trial court on the plea of adverse possession and limitation does not merit interference. The lower appellate court accordingly allowed the appeal, reversed the decree and judgment of the trial court and decreed the suit as prayed for with costs. The memorandum of cross objections filed by the S.A.No.66 of 2001 7 defendants was dismissed. The defendants have aggrieved thereby, filed this second appeal. 6. I heard Sri.P.Gopakumaran Nair, learned counsel appearing for the appellants and Sri.P.B.Krishnan, learned counsel appearing for the respondents. Sri.P.Gopakumaran Nair, learned counsel appearing for the appellants contended that in the absence of any pleading and evidence to show that Ext.A1 power of attorney related to the plaint schedule property which is admittedly situated in Survey No.257 of Enkakkad Village, Thalappilly Taluk, Thrissur District, the appellate court erred in holding that it relates to the plaint schedule property. The learned counsel contended that the plaintiffs had not alleged in the plaint that the plaint schedule property is situate in R.S.No.190/4, that the plaintiffs have also not proved that the plaint schedule property is situate in R.S.No.190/4 with proper factual foundation in the pleadings and therefore the appellate court erred in holding that Ext.A1 power of attorney authorises the attorney constituted thereunder to institute a suit in respect of the land situate in Survey No.257 of Enkakkad Village, Thalappilly Taluk, Thrissur District. Relying on the finding entered by the trial court that the defendants have produced evidence to show that they are in possession of the property from 1972, the learned counsel contended that as the plaintiffs have failed to plead S.A.No.66 of 2001 8 and prove that they were in possession of the plaint schedule property within a period of 12 years immediately preceeding the institution of the suit, the court below ought to have held that the suit is barred by limitation. The learned counsel lastly contended that as the defendants were admittedly residing in the plaint schedule property and the second defendant had obtained an electricity connection in her name and they are in possession of the property to the exclusion of the real owner namely late Mohammedkutty, the finding of the courts below that the defendants have not perfected title to the plaint schedule property by adverse possession and limitation cannot be sustained. 7. Per contra, Sri.P.B.Krishnan, learned counsel appearing for the respondents/ plaintiffs contended that on the terms of Ext.A1, it is clear that it was a general power of attorney which incidentally made special mention of the land situate in Survey No.190/4 of Enkakkad Village, Thalappilly Taluk and therefore, nothing turns on failure of the plaintiffs to plead and prove that the plaint schedule property which is described as situate in Survey No.257 is really situated in R.S.No. 190/4 and that the difference in the survey number arose as a result of re-survey. The learned counsel further contended that the documents produced along with the plaint should be treated as part of the pleadings and as the power of attorney was admittedly produced S.A.No.66 of 2001 9 when the plaint was re-presented on 22.3.1991, the defendants ought to have raised the plea regarding the validity of the power of attorney and the competence of the power of attorney to sign and verify the plaint in their written statement and it having not been done, the defendants cannot be heard to contend that the person who had signed and verified the plaint had no authority to sign and verify it on behalf of the plaintiffs. Regarding the plea of limitation and adverse possession, the learned counsel appearing for the respondents contended that the evidence in the case would show that even after execution of Ext.A2 sale deed late Thithumma continued to reside in the building situate in the plaint schedule property along with her son, the first defendant and her widowed daughter Khadeeja Mohammed, that Thithumma died only in the year 1980, that the first defendant when examined as DW-1 had admitted that his possession after 1972 is in continuation of his previous possession and as the defendants have no case that even during the lifetime of their mother who died only in the year 1980, they were in exclusive possession and enjoyment of the plaint schedule property, the plea of adverse possession and limitation was rightly repelled by the courts below. 8. I have considered the submissions made at the Bar by learned counsel on either side. The courts below have concurrently held that S.A.No.66 of 2001 10 the plea of adverse possession and limitation put forward by the defendants does not merit acceptance. The trial court had after a detailed analysis of the pleadings and the evidence, oral and documentary available in the case, the admission made by the first defendant examined as DW-1 that his possession of the plaint schedule property after 1972 is in continuation of his previous possession along with his mother and widowed sister Khadeeja Mohammed, and the fact that late Thithumma the executant of Ext.A2 sale deed died only in the year 1980, held that there is no evidence to show that possession of the mother with whom the defendants and the first defendant’s widowed sister Khadeeja were residing, turned to be hostile to the plaintiffs at any point of time and in the absence of any evidence to show hostile possession of the property, it has to be held that the defendants have not perfected title to the plaint schedule property by adverse possession and limitation. In the instant case, it is not in dispute that till the year 1980, late Thithumma, the executant of Ext.A2 sale deed, who is none other than the mother of late Mohammedkutty and the first defendant was residing in the building situated in the plaint schedule property. It is admitted in paragraph 7 of the written statement that Thithumma died only in the year 1980. The defendants have no case in their written statement that even S.A.No.66 of 2001 11 during the lifetime of Thithumma they were in exclusive possession of the suit property. As rightly held by the courts below, the mere residence of the defendants along with the first defendant's widowed sister Khadeeja Mohammed and Thithumma, mother of late Mohammedkutty and the first defendant, even after the execution of Ext.A2 sale deed is not sufficient to hold that even during the lifetime of Thithumma, the first defendant and his wife, the second defendant, were in exclusive possession of the plaint schedule property to the exclusion of late Mohammedkutty. 9. As stated earlier, Thithumma died only in the year 1980. The instant suit was filed on 20.3.1991. The defects in the plaint were cured and it was represented on 22.3.1991 and summons was issued to the defendants on 27.3.1991. So long as the defendants have no case that possession of Thithumma was adverse to that of the real owner namely late Mohammedkutty and the absence of a case for the defendants that even during the lifetime of the first defendant's mother Thithumma, they were in exclusive possession and enjoyment of the property to the exclusion of the real owner, it has to be necessarily held that the instant suit filed within 12 years from the date of death of Thithumma, is well within the period of limitation prescribed in Article 65 of the Limitation Act, 1963. Though the learned counsel for the S.A.No.66 of 2001 12 appellants contended relying on the decision of the Apex Court in **Ramiah v. N.Narayana Reddy (dead) by Lrs.** (2004 (7) SCC 541) that a suit based on the plaintiffs title in which there is no allegation of prior possession and subsequent dispossession alone can fall within the scope of Article 65, I am of the opinion that the said plea cannot be countenanced in view of the decision of the Constitution Bench of the Apex Court in **Nair Service Society Ltd. v. Rev.Fr.K.C.Alexander** (1968 KLT 182). In the said decision it was held that: "16. The Limitation Act, before its recent amendment provided a period of twelve years as limitation to recover possession of immovable property when the plaintiff, while in possession of the property was dispossessed or had discontinued possession and the period was calculated from the date of dispossession or discontinuance. Mr. Nambiar argues that there cannot be two periods of limitation, namely, 6 months and 12 years for suits based on possession alone and that the longer period of limitation requires proof of title by the plaintiff. We do not agree. No doubt there are a few old cases in which this view was expressed but they have since been either overruled or dissented from. The uniform view of the courts is that if S.9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under S.9 of the Specific Relief Act but that does not bar a suit on prior S.A.No.66 of 2001 13 possession within 12 years and title need not be proved unless the defendant can prove one. The present amended articles 64 and 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immovable property or any interest therein based on title. The amendment is not remedial but declaratory of the law. In our judgment the suit was competant. (emphasis supplied) I accordingly affirm the finding of the courts below that the defendants have not perfected title to the plaint schedule property by adverse possession and limitation. 10. I shall next consider whether the plaint in the instant case was liable to be rejected on the ground that Ext.A1 power of attorney did not authorize PW-1 to sign and verify the plaint. Though such a contention was not raised in the written statement, it was put forward in the trial court at the time of arguments. Relying on the recital in Ext.A1 power of attorney it was contended that Ext.A1 power of attorney authorizes PW-1 to institute a suit only in respect of the land situate in Survey No.190/4 of Enkakkad Village, that the plaint schedule property is situate in Survey No.257 of Enkakkad Village and therefore it does not authorise PW-1 to sign and verify the plaint. Yet another contention raised was that Ext.A1 power of attorney was S.A.No.66 of 2001 14 executed on 9.4.1990 itself on stamp papers sold by the vendor at Thrissur on 9.4.1990 and therefore it has to be held that it is a fabricated document. The trial court repelled the said contention holding that a stranger to Ext.A1 power of attorney cannot challenge its genuineness and authenticity when the plaintiffs, who have executed it do not dispute its authenticity and genuineness. The trial court however held that as Ext.A1 power of attorney relates only to the land situated in Survey No.190/4, it cannot be relied on. The trial court accordingly held that the suit as filed is not maintainable. 11. As stated earlier, though Ext.A1 did not accompany the plaint when it was presented on 20.3.1991, Ext.A1 was filed when the plaint was re-presented on 22.3.1991. The defendants did not in thier written statement question the authenticity and genuineness of Ext.A1 power of attorney or contend that it does not authorise the person who had signed and verified the plaint to sign and verify it on behalf of the plaintiffs. However such a plea was raised during the course of arguments in the trial court, relying on the recital in Ext.A1 power of attorney that it authorises the power of attorney to file suits, appeals or applications or defend any suit or application in any court of law or other authority only in respect of the land situated in Survey No.190/4 of Enkakkad Village. It was contended that as the power of attorney S.A.No.66 of 2001 15 does not relate to the land situated in Survey No.257 of Enkakkad Village, PW-1 has no authority to sign and verify the plaint. Defendants 1 and 2 are near relations of the plaintiffs. A reading of the written statement filed by them indicate that they were aware of the execution of Ext.A2 sale deed and also the fact that it was executed in favour of late Muhammedkutty, the predecessor-in-interest of the plaintiffs. They are also aware of the fact that the plaint schedule property is situated in Survey No.257. They do not dispute the said fact. Merely because of the fact that the power of attorney refers to the land situate in Survey No.190/4, they contend that the power of attorney could not have signed and verified the plaint. The appellants do not question the authenticity and genuineness of Ext.A7 tax receipt produced in the lower appellate court which discloses that the plaint schedule property which was originally situated in Survey No.257 is now situate in Re-survey No.190/4 of Enkakkad Village. In such circumstances, I am of the opinion that the failure of the plaintiff to plead the said fact in the plaint does not by itself cause any prejudice to the defendants. The records called for from the trial court disclose that the learned counsel appearing for the plaintiffs had along with I.A.No.3212 of 1995 to reopen the evidence, filed I.A.No.3213 of 1995 to receive the certificate dated 6.7.1995 issued by the Village Officer, S.A.No.66 of 2001 16 Enkakkad Group Village to the effect that as per the re-survey records 0.2665 hectares of land in Re-survey No.190/4 which corresponds to Survey No.257 of Enkakkad Village stands in the name of late Mohammedkutty. The said document, though not formally received into evidence, supports the recital in Ext.A7 tax receipt that the disputed land is situate in Re-survey No.190/4. If that be so, the mere fact that the old survey number alone was given in the plaint is not a ground to hold that Ext.A1 power of attorney does not authorise PW-1 to institute the suit. For the reasons stated above, I hold that there is no merit in the second appeal. The second appeal fails and is accordingly dismissed. No costs. Sd/- **P.N.RAVINDRAN, JUDGE** rkc/vps //True copy// PA to Judge.