Ambika and Others v. Sasidharan S/o Damodharan and Anitha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 3[RD] DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943** **RSA NO. 986 OF 2016** **AGAINST THE DECREE AND JUDGMENT DATED 06.04.2016 IN AS 92/2009 OF SUB COURT,KOTTARAKKARA AGAINST THE DECREE AND JUDGMENT DATED 23.01.2009 IN OS 63/2004 OF MUNSIFF COURT, PUNALUR** ## **APPELLANTS/APPELLANTS 2 TO 4/ 2ND DEFENDANT AND LRS OF DECEASED 1ST DEFENDANT:** 1 AMBIKA AGED 42 YEARS D/O.LEELA, PODIMANNIL VEEDU, KARAVOOR MURI, PIRAVANTHOOR VILLAGE. 2 ARUN AGED 28 YEARS S/O.CHANDRABABU, PODIMANNIL VEEDU, KARAVOOR MURI, PIRAVANTHOOR VILLAGE. 3 ASWATHY AGED 25 YEARS D/O.CHANDRABABU, PODIMANNIL VEEDU, KARAVOOR MURI, PIRAVANTHOOR VILLAGE. BY ADVS. SMT.SREEDEVI KYLASANATH SRI.ACHUTH KYLAS SRI.JOSELAL GEORGE SMT.KAMALAKSHY KYLASANATH ## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND LR OF DECEASED** ## **PLAINTIFF:** 1 SASIDHARAN S/O.DAMODHARAN, THOTTUKADAVIL VEEDU, KARAVOOR MURI, PIRAVANTHOOR VILLAGE (DIED) **RSA NO.986/2016** **2** 2 ANITHA, AGED ABOUT 50 YEARS, D/O.SASIDHARAN, THOTTUKADAVIL VEEDU, KARAVOOR MURI, PIRAVANTHOOR VILLAGE BY ADV SMT.S.R.REMYA FOR R2 THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **RSA NO.986/2016** **3** ## **K.BABU, J.** ------------------------------------------- ## R.S.A No.986 of 2016 --------------------------------------------- Dated this the 03[rd] day of November, 2021 ## **JUDGMENT** The appellants are the defendants in a suit for injunction. They challenge, the concurrent findings of the Courts below granting a mandatory injunction against them in respect of the plaint schedule property. Respondent No.2 is the legal representative of the plaintiff. 2. The plaintiff is the brother of defendant No.1. Defendant No.2 (appellant No.1) is the wife of defendant No.1. The plaint schedule property is forest land, which came to the possession of the plaintiff about 35 years ago. The plaintiff constructed a house therein and carried out agricultural activities. He constructed a building in the property. He has been conducting a shop therein after obtaining a license from the local authority. When the revenue authorities failed to take steps to assign land in favour of the plaintiff, he instituted O.S. No.281/1999 against the State and others. While that suit was pending, the plaintiff was sent to jail in a case filed by his wife. During that period, defendant No.1 trespassed into the plaint schedule property and started doing business in the **RSA NO.986/2016** **4** shop room in possession of the plaintiff. When the plaintiff came back from jail, though he requested defendant No.1 to vacate the premise, he did not accede to the demand. Defendants are trespassers. Defendants have no right over the building or the landed property. The plaintiff is entitled to a prohibitory and mandatory injunction against the defendants. 3. The defendants resisted the suit contending that the plaintiff was never in possession of the property. Defendant No.1 is in possession and enjoyment of the property. The house was constructed by him. Originally, the property was in possession of the parents of the parties. After the death of the father of defendant No.1, the property devolved upon defendant No.3, their mother. She released her right over the property in favour of defendant No1. Thereafter, defendant No.1 constructed a house in the plaint schedule property. The plaintiff started business in the plaint schedule property after getting permission from defendant No.1. 4. The parties went on trial. Evidence in this case consists of the oral evidence of PWs 1 to 3 and DWs 1 to 3, Exts. A1 to A16 marked on the side of the plaintiff and Exts.B1 and B2 marked on the side of the defendants. 5. The Trial Court held that the plaintiff is in settled **RSA NO.986/2016** **5** possession of the plaint schedule property and while the plaintiff was in jail, the defendants trespassed into the plaint schedule building and resided therein. 6. The defendants challenged decree and judgment dated 23.01.2009 passed by the Trial Court before the First Appellate Court in A.S.No.92/2009. The First Appellate Court confirmed the findings of the Trial Court and dismissed the appeal. 7. Aggrieved by the judgment and decree of the First Appellate Court, which confirmed the decree and judgment passed by the Trial Court, the defendants are before this Court in this Second Appeal. 8. This Court admitted the appeal on 09.10.2017 and issued notice to the respondents on the substantial questions of law formulated. 9. After hearing both sides, I have reformulated the substantial questions of law as:- - (i) Are the courts below justified in granting a decree of mandatory injunction, when the plaintiff has admittedly no title over the property? - (ii) When the claim of the plaintiff is based on possession alone without any title and the **RSA NO.986/2016** **6** defendants encroached upon the property, is it not a case where the plaintiff ought to have sued the defendants for recovery of possession.? 10. The learned counsel for the appellants contended that the plaintiff is not in settled possession of the plaint schedule property and defendants are in possession of the land and building. Relying on _**Kayalulla Parambath Moidu Haji v. Namboodiyil Vinodan [2021 (5) KHC 430],**_ the learned counsel for the appellants contended that the plaintiff ought to have sought for recovery of possession instead of filing a suit for injunction simpliciter. 11. The learned counsel further contended that, as the plaintiff had already settled a portion of plaint schedule property in favour of his minor daughter, the claim of possession in respect of the entire plaint schedule property from the part of plaintiff is not sustainable. 12. Relying on the oral evidence of PW1 - the plaintiff, corroborated by Exts. A1 to A16, especially, Ext.A12 admission of defendant No.1 to the effect that the plaintiff was in possession of the property, the Trial Court and the First Appellate Court held that the plaintiff is in settled possession of the plaint schedule property **RSA NO.986/2016** **7** including the building. Both the Courts below held that the defendants trespassed in the plaint schedule property and the building while the plaintiff was in jail. The First Appellate Court also considered the contention of the appellants that, as the plaintiff had settled a portion of the property in favour of his minor daughter, he cannot be in possession of the entire property. The First Appellate Court held that there is nothing on evidence to show that the settlement deed came into effect and further relying on the fact that the plaintiff has been paying tax even after the execution of the settlement deed held that, the plaintiff had not parted with the possession of plaint schedule property. Relying on the massive evidence in support of the case of the plaintiff that he is in settled possession of the plaint schedule property, the First Appellate Court repelled the contention of the defendants that they are not trespassers. Both the Trial Court and the First Appellate Court specifically held that the defendants started residing at the plaint schedule property when the plaintiff was sent to jail by the Family Court. 13. The learned counsel for the appellants/defendants strenuously argued that the plaintiff failed to establish his possession over the property. The Trial Court as well as the First Appellate Court relied on the oral evidence of PWs 1 to 3 and **RSA NO.986/2016** **8** Exts.A1 to A16 to hold that plaintiff is in settled possession of the plaint property. The Courts below also relied on the admission of defendant No.1 in the written statement filed by him in O.S.No.281/1999 a suit between the same parties in respect of the plaint schedule property to record that the plaintiff is in settled possession of the property. In Ext.A12 written statement, defendant No.1 admitted the possession of the plaintiff over the plaint schedule property. 14. In _**Sunkamma v. S.Pushparaj [(2018) 12 SCC 647]**_ , the Apex Court held that in a suit pertaining to permanent injunction, the touchstone upon which the suit has to be decided is “lawful possession” and not “ownership”. 15. In Phipson on the Law of Evidence (Burrows, 1952 9th Edn. Page 230) it is suggested that the most plausible and perhaps widely accepted reason for receiving admissions in evidence is that whatever statements a party makes about the facts of the case, whether they be for or against his interest, should be relevant as a representation or reflecting the truth as against him. In _**Slatterie v. Pooley [(1840) 151 English Reports, page 579]**_ Parke B. observed:....... “what a party himself admits to be true may be presumed to be so.” **RSA NO.986/2016** **9** ## 16. In Phipson on the Law of Evidence (supra) the learned ## author concluded thus in page 231:- “Subject to certain exceptions, the general rule, then both in civil and criminal cases, is that any relevant statement made by a party is evidence against himself. The weight of the declaration is, of course, a totally different matter; this may vary with the circumstances and will no doubt, be greater if against interest at the time, than the contrary.” ## 17. The Apex Court in _**Biswanath Prasad and others v.**_ ## _**Dwaraka Prasad and others (1974 KHC 374)**_ held that statements made by a person in his pleadings or in his evidence in some other case are admissions and therefore relevant. In that case, the question was whether certain properties belonged to the defendant and certain others were liable to partition. The opposite party had made a statement in depositions in an earlier suit that they belonged to the defendant. Similar admissions occurred in the written statement filed by the plaintiff and his father in that suit. Treating this as relevant evidence against the plaintiff therein, the Apex Court observed that “admissions are usually telling against the maker unless reasonably explained, and no acceptable ground to extricate the appellants from the effect of their own earlier statements has been made out.” 18. Admissions are substantive evidence in view of Sections **RSA NO.986/2016** **10** 17 and 20 of the Indian Evidence Act, though they are not conclusive proof of the matter admitted. The admissions operate as an estoppel. 19. To constitute an admission in law, the statement should be exfacie unequivocal and categorical and not vague. In the present case, the admission made by defendant No.1 that the plaintiff is in possession of the plaint schedule property in the earlier proceedings was unequivocal and categorical. The Trial court and the First Appellate Court carefully analysed the pleadings and evidence to enter in to a conclusion that the plaintiff is in settled possession of the property. 20. In _**Puran Singh v. State of Punjab [(1975) 4 SCC 518,**_ paragraph No.12] the Apex Court has laid down the following tests which may be adopted as a working rule for determining the attributes of “settled possession”: _“(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;_ _(ii) that the possession must be within the knowledge either express or implied, of the owner or- without any attempt at concealment and which contains an element of animus possidendie. The nature of possession of the trespasser would, however, be a matter to be decided on facts and circumstances of each case_ _(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and_ _(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had_ **RSA NO.986/2016** **11** _grown any crop. If the crop had been grown by the trespasser. then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession.”_ ## 21. In _**Horam v. Rex [AIR 1949 All 564**_ **]** , a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter may be dispossessed by the true owner only by having recourse to the due process of law for reacquiring possession over his property. The view taken by the Allahabad High Court in _**Horam v. Rex**_ (supra) was approved by the Apex Court in _**Munshi Ram v. Delhi Administration [AIR 1968 SC 702] and Puran Singh**_ (supra). 22. The Courts below concurrently held that the plaintiff is a trespasser. In _**Poona Ram v. Moti Ram (D) Th.Lrs. And Others (2019 KHC 6085)**_ the Apex Court held thus: _“13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession_ **RSA NO.986/2016** **12** _means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”_ 23. In the present case, the appellants/defendants failed to establish that they are in actual possession of the property over a sufficiently long period. Both the Courts below concurrently held that while the plaintiff was in jail the defendants trespassed into the building in the property. The occupation of the building in the property by the defendants cannot, at any rate, be termed as settled possession. 24. Coming to the reliance placed on _**Kayalulla Parambath Moidu Haji's case (supra),**_ the facts of this case were covered by clause (b) of Paragraph 21 of the judgment in _**Anathula Sudhakar v. P. Buchi Reddy (dead) by LRs and Others [2008 (4) SCC 594]**_ . Clause (b) of Paragraph 21 of _**Anathula Sudhakar's case (supra)**_ reads thus: **RSA NO.986/2016** **13** _“(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.”_ ## 25. In _**Kayalulla Parambath Moidu Haji (supra)**_ the Apex Court in Paragraph 19 observed thus:- “19. We find that the present case would be covered by clause (b) of paragraph 21 of the judgment of this Court in Anathula Sudhakar (supra). We find that, in the present case, the question of _de jure_ possession has to be established on the basis of the title over the property. Since the said property is a vacant site, the issue of title would directly and substantially arise for consideration, inasmuch as without the finding thereon, it will not be possible to decide the issue of possession. As observed in clause (c) of paragraph 21 of the judgment cited supra, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in the suit for mere injunction. We do not find that the present case would fall in exception carved out in clause (d) in paragraph 21 of the judgment cited supra inasmuch as the matter involved cannot be said to be simple and straightforward wherein the Court would decide upon the issue regarding title, even in the suit for injunction.” 26. The Apex Court was considering a case where the _de jure_ possession had to be established on the basis of the title of the property, and the issue of title was directly and substantially involved. **RSA NO.986/2016** **14** 27. In the present case, the issue of title is not at all directly and substantially involved. Both sides admit that the property belongs to Government and the case of the plaintiff is that he had been in possession of the property for the last 35 years or more. The ratio in _**Kayalulla Parambath Moidu Haji's case (supra)**_ is not at all applicable to the present fact situation. As the defendants are mere trespassers and have no settled possession over the property, the plaintiff, who is in possession, is not required to seek the relief of recovery of possession. Hence, a suit for injunction simpliciter is sufficient to seek the reliefs prayed for by the plaintiff. The substantial questions of law are answered accordingly. The Regular Second Appeal is dismissed. The parties are directed to bear their respective costs. **Sd/K.BABU JUDGE** VPK