Bharathi Chellappan v. All Kerala Pulayar Mahasabha No. 228 Mannamthottuva zhy Sakha (represented by President Thevan Bhaskar an) & All Kerala Pulayar Mahasabha No. 228 represented by its Secretary, Kuttappan Rajan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY ,THE 30TH DAY OF OCTOBER 2018 / 8TH KARTHIKA, 1940** **RSA.No. 214 of 2008** **AGAINST THE ORDER/JUDGMENT IN AS 44/2005 of SUB COURT, THIRUVALLA DATED 19-10-2007** **AGAINST THE ORDER/JUDGMENT IN OS 845/1998 of MUNSIFF COURT, THIRUVALLA DATED 05-03-2005** ## **APPELLANT/RESPONDENT/PLAINTIFF:** **BHARATHI CHELLAPPAN, KOTHAVELIL VEEDU, MANNAMTHOTTUVAZHY, KIZHAKKUMMURIYIL, NIRANAM VILLAGE.** **BY ADVS.** **SRI.MVS.NAMPOOTHIRY SMT.APARNA N.NAMPOOTHIRI** ## **RESPONDENTS/APPELLANTS/DEFENDANTS:** - **1 ALL KERALA PULAYAR MAHA SABHA NO.228 MANNAMTHOTTUVAZHY SAKHA, REPRESENTED BY PRESIDENT, THEVAN BHASKARAN, MULAMOOTTIL HOUSE, NEAR NIRANAM PANCHAYAT.** - **2 ALL KERALA PULAYAR MAHA SABHA NO.228 REPRESENTED BY ITS SECRETARY, KUTTAPPAN RAJAN, MEENATHETHIL VEEDU, KOTTANKUZHY BHAGAM, NIRANAM VILLAGE.** **BY ADV. SRI.BABU CHERUKARA** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA.No. 214 of 2008 2 ## **JUDGMENT** The appellant is the plaintiff in O.S. No.845 of 1998 on the files of the Munsiff's Court, Thiruvalla as well as the respondent in A.S. No.44 of 2005 on the files of the Sub Court, Thiruvalla. [The parties are referred to as in the Original Suit]. 2. The aforesaid Original Suit was filed by the plaintiff against the defendants, seeking a decree granting recovery of possession of item No.2 property and also for consequential injunction, restraining the defendants and their men from encroaching any portion of plaint schedule item No.1 for extending or reconstructing a shed, which is situated in item No.2. According to the plaint averments, the plaint schedule item No.1 property belongs to the plaintiff, by virtue RSA.No. 214 of 2008 3 of sale deed No.750 of 1992 and thereafter, the plaintiff has been in absolute possession and enjoyment of the plaint schedule properties. Neither the defendants nor anybody else have any kind of right or possession over the plaint schedule property. While so, the defendant Nos.1 and 2 have put up a shed in plaint schedule item No.2, which is a portion of plaint item No.1, alleging that they are office bearers of the Kerala Pulayar Mahasabha. They have put up a shed at the instigation of the plaintiff's brother-in-law by name 'Bhaskaran', who was in inimical terms with the plaintiff. The defendants never obtained any permission from the plaintiff's and she also never predecessor granted any permission to put up such a shed in the plaint schedule item No.2 property. All the attempts were RSA.No. 214 of 2008 4 made at the instigation of Bhaskaran, when his attempts to evict the plaintiff from the plaint schedule property became in vain. Though the aforesaid Bhaskaran filed suits one by one against the plaintiff raising untenable contentions of kudikidappu right etc. before the Civil Court and Land Tribunal, all those suits and proceedings were dismissed, accepting the title and possession of the plaintiff over the plaint schedule properties. Though the plaintiff made a request to vacate plaint schedule item No.2, they did not heed the said request. In that circumstances, the plaintiff has no remedy other than filing a suit for recovery of possession of item No.2 from the defendants. 3. The defendants filed written statement, denying the plaint averments and they contended RSA.No. 214 of 2008 5 that they are in absolute possession and enjoyment of item No.2, where the office of the 1[st] defendant is functioning from 1972 onwards. According to the defendants, their possession over the plaint schedule item No.2 was open, uninterrupted and continuous from 1972 onwards and thereby they have perfected right and possession over the item No.2 property, by adverse possession. Thus, the suit for recovery of possession is barred by limitation. The allegation that the 1[st] defendant started to function their office in the shed, standing in item No.2 at the instigation of Bhaskaran, is not correct. They have been repairing and maintaining the shed for the last so many years and the defendants have no right to object the same. The defendants have no intention to trespass upon item No.1, and they have never made any attempt to RSA.No. 214 of 2008 6 put up a shed in item No.1. The aforesaid averments, the defendants have prayed for dismissal of the Original Suit. 4. On the aforesaid rival pleadings, both parties adduced evidence, which consists of the oral testimony of PWs.1 to 3 and Exts.A1 to A4 from the part of the plaintiff and the oral testimony of DWs.1 to 4 and documentary evidence Exts.X1 to X4 from the part of the defendants. 5. After considering the evidence on record, the Munsiff's Court, decreed the suit, as prayed for, on a finding that the plaintiff has succeeded to prove the title and possession over plaint schedule item Nos.1 and 2. But, the defendants have failed to prove the plea of adverse possession raised with respect to plaint schedule item No.2. RSA.No. 214 of 2008 7 6. Feeling aggrieved, the plaintiff has preferred A.S. No.44 of 2005 before the Sub Court, Thiuruvalla. After re-appreciating the evidence on record, the Sub Court, Thiruvalla reversed the findings of the Munsiff's Court and decreed the suit, on a finding that the defendants have succeeded to prove right and possession over the plaint schedule item No.2 property, by way of adverse possession and the suit was not filed, within the period of 12 years. Thus, the divergent findings, whereby the suit was decreed and stands dismissed, are challenged in this Regular Second Appeal. 7. Heard the learned counsel for the appellant and the learned counsel for the respondents. 8. The learned counsel for the appellant/plaintiff advanced arguments challenging RSA.No. 214 of 2008 8 the findings of the Appellate Court that the respondents have succeeded to prove the claim of adverse possession. According to the learned counsel, the defendants have not succeeded to prove the essential ingredients to constitute adverse possession more particularly, _animus possidenti_ . The Munsiff's Court rightly appreciated Exts.X1 to X3 in its correct perspective. But, the Appellate Court went wrong by relying on Exts.X1 to X4, to arrive at a finding that the defendants have succeeded to prove the claim of adverse possession. The learned counsel drew my attention to the discrepancies in Exts.X1 to X4 and contended that Exts.X1 to X4 are mutually destructive and opposing. In order to fortify the arguments, the learned counsel cited _**George Thomas & Another v. Geondy Joseph & Others**_ [2005(1) KLJ RSA.No. 214 of 2008 9 176], _**T.Anjanappa and Others v. Somalingappa and Another**_ [(2006)7 SCC 570], _**M. Durai v. Muthu**_ [(2007) 3 SCC 114]. 9. Per contra, the learned counsel for the respondents/defendants advanced argument to justify the findings in the impugned judgment whereby the findings of the lower court has been reversed. According to the learned counsel Exts.X1 to X4 unambiguously proved that the respondentsdefendants perfected their title over item No.2 by adverse possession from 1972 onwards. But the lower court miserably failed to appreciate Exts.X1 to X4 in its correct perspective. In short, according to the learned counsel, the oral testimony of Dws.1 to 3 coupled with Exts.X1 to X4 probabilised the claim of the respondents that they have been in peaceful and RSA.No. 214 of 2008 10 continuous possession of item No.2 from 1972 onwards and thereby they have perfected their title over the item No.2 by way of adverse possession. 10. At the time of admission, this Court has framed two questions of law in this appeal. _1. Whether on the evidence, first appellate court_ _was justified in holding that title of the appellant was lost by adverse possession when respondents did not establish title perfected by adverse possession._ - _2.Whether first appellate court could grant a_ _decree for injunction in favour of the defendants against the plaintiff, in the absence of a counter claim._ 11. Being a second appeal, the scope and extent of consideration in this appeal is limited to questions of law only. Coming to first question, it is the case of RSA.No. 214 of 2008 11 the appellant that she has purchased item No.1 landed property by virtue of Ext.A1 sale deed on 26.08.1992 and thereafter she has been in possession and enjoyment over the item No.1 property. Item No.1 is 13 cents of property comprised Survey No.120/4 of Niranam village and item No.2 is 3 cents of property out of that 13 cents of property lying as eastern portion of 10 cents of property. According to the appellant, the respondents have trespassed into item No.2 property and exhibited a board showing that Pulayar Mahasabha Sakha No.288 and the said trespass was made at the instances of appellant's husband's brother Bhaskaran and first and second respondents have no authority to represent or to act as the office bearers of Pulayar Mahasabha. On the other hand the respondents have contended that RSA.No. 214 of 2008 12 they have been in possession and enjoyment of item No.2 from the year 1972 onwards and that the item No.1 property was in possession of predecessor-ininterest of the appellant. They denied the allegation that they have trespassed into item No.2 property at the instance of the brother of the appellants husband by name Bhaskaran. According to them, they have perfected their peaceful and continuous title over item No.2 property from 1972 onwards and the office of the first respondents-defendants Sabha has been functioning in item No.2 property. The respondents have no challenge against Ext.A1 sale deed or Ext.A2 tax receipt. Ext.A2 tax receipt would show that item No.1 property had been mutated in the name of the appellant and she has been paying tax for item No.1 property having an extent of 5.50 Acres. But RSA.No. 214 of 2008 13 according to the respondents, the appellant has lost her title over item No.2 property by way of adverse possession. The respondents have not disputed the case of the plaintiff that she got title and possession over the entire item No.1 property by virtue of Ext.A1 sale deed. 12. In the case of adverse possession, initial burden is on the plaintiff to prove that she has got title and possession over the property by a valid document. In the instant case, the plaintiff has discharged her initial burden of proof by way of production of Ext.A1 sale deed and Ext.A2 tax receipt, which stands unchallenged by the respondentsdefendants. That apart, the appellant has given oral evidence as PW1 in support of Exts.A1 and A2. When the appellant was examined as PW1, no challenge was RSA.No. 214 of 2008 14 made in cross examination, disputing the legal validity of Exts.A1 and A2. Thus, it can be concluded that the appellant has discharged her initial burden of proof. 13. When the appellant proved her title and possession over the disputed property, the burden will shift to the respondents-defendants to prove their claim of adverse possession. In the above context the decisions reported in _**Vasantiben Prahladji Nayak And Others v. Somnath Muljibhai Nayak And Others**_ ( **2004) 3 SCC 376** and _**T.Anjanappa and Others v. Somalingappa and Another**_ ( **2006) 7 SCC 570** are relevant and significant. 14. In _T.Anjanappa and Others' case_ (supra), the apex court has held in paragraph No.20 reads as follows: RSA.No. 214 of 2008 15 _20.It is well recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the_ RSA.No. 214 of 2008 16 _real owner of the former's hostile action._ 15. The proposition that can be culled out from the above decision is that adverse possession is a hostile possession which amounts to denial of title and possession of the true owner and such denial must be open, peaceful and continuous, for a period of 12 years. So the point is whether the respondents have succeeded in proving their claim that they have perfected their title and possession in item No.2, against the true owner, for more than 12 years. The respondents/defendants asserted their hostile possession of item No.2, in denial of the title of the appellant from 1972 onwards. The lower court has found that no substantive evidence has been adduced to prove the hostile possession of the defendants, in denial of the title of the appellant for more than 12 RSA.No. 214 of 2008 17 years. But the appellate court placed reliance on Exts.X1 to X4 and found that Exts.X1 to X4 coupled with Ext.A2 sale deed proved the hostile possession of the item No.2 by the respondents in denial of the title of the appellant. 16. Whether there is in the any illegality aforesaid finding whereby the appellate court placed reliance on Exts.X1 to X4. Ext.X1 is a copy of the building tax assessment register during the period 1978 - 1979 to 1982 - 1983 issued by the Secretary Niranam Grama Panchayat. The finding of the appellate court shows that the appellate court has taken the number 134, in Ext.X1, as the number of the shed stands in item No.2 property; but the number 134 refers to number of a house as per Ext.X1. But, according to the respondents, their office has been RSA.No. 214 of 2008 18 functioning in the shed standing in item No.2. As per Ext.X1, the owner of the building number 134 is AKPMS No.228 Mannanthottu Vazhi Sakha. Absolutely there is no pleadings in the written statement or any evidence to establish that the first respondent is known as AKPMS also. No corroboratory evidence has been produced to prove that first respondent and AKPS No.228 are one and the same. Therefore, this Court is of the view that no reliance can be placed on Ext.X1, to prove the possession of the respondents in item No.2 during the periods 1978 to 1983. 17. Ext.X2 is a copy of the building tax assessment register for the period 1988 – 1989 to 1992 to 1993 issued by the Secretary, Niranam Grama Panchayath. In Ext.X2, the appellate court has taken RSA.No. 214 of 2008 19 building No.201 as the number of the shed stands in Item No.2. But the appellate court has lost sight of the name of the owner and address corresponding to building No.201. The name of the owner of the building is shown as Pulayar Mahasabha, Niranam. Here also there is no pleadings or evidence to establish that Pulayar Mahasabha, Niranam and the first respondent All Kerala Pulayar Mahasabha No.228 Mannamthottathu Vazhi are one and the same. 18. Coming to Ext.X3, the appellate court has taken the 7[th] entry. Ext.X3 is the building tax assessment register, during the period 1993-94 to 2004-05, issued by the Secretary Niranam Grama Panchayat with respect to building No.212. In Ext.X3, Pulayar Mahasabha office is shown as the owner of the building. RSA.No. 214 of 2008 20 19. On a combined reading of Exts.X1 to X3, this Court finds that the names shown as owner of the building and the building numbers do not tally each other and there is no evidence to prove that those different numbers shown in Exts.X1 to X3 refer to the same building and it is the building situated in item No.2 property. Similarly, there is no evidence to prove that the name of the owner shown in Exts.X1 to X3 refers to respondents-defendants. That apart Exts.X1 to X3 refer different periods with long intervals i.e., 1978-83 , 88-93 and 94 to 2005. But it is very pertinent to note that the specific case of the respondents is that they have been in continuous possession and enjoyment of item No.2 property from 1972 onwards. No evidence has been produced to prove the hostile possession of the respondents in item No.2 for the RSA.No. 214 of 2008 21 period from 1972-78. In short, Exts.X1 to X4 do not establish the respondents hostile possession of item No.2, in denial of the title of the appellant. 20. Coming to Ext.X4 it is the photocopy of page No.513, showing consumer number and details of KSEB electrical section, Kadapra. It refers to consumer No.4772 and name and address of the consumer is shown as 'AKPMS Branch No.228, Kadapra, Mannar'. In the absence of any evidence, it cannot be presumed that the first respondent's name is the name shown in Ext.X4. 21. Coming to Ext.A3, it is copy of the plaint in O.S.No.514/1992 of the Munsiff Court, Thiruvalla. It has been produced by the plaintiff to show that one Bhaskaran Thiruvan, the appellant's husband's brother filed the aforesaid suit against the appellant RSA.No. 214 of 2008 22 claiming kudikidappu right and the said suit has been dismissed. But in Ext.A2 the said Bhaskaran Thiruvan alleged that he and his mother has granted 3 cents of property in the year 1973 to the first respondent and in that property the first respondent has put up a 'Gurumandiram' and 'Bhajanamandiram'. It is pertinent to note that the respondents have no such case in their written statement. Therefore, no reliance could have been placed on Ext.A3 to arrive at a finding that the first respondent was in possession of the item No.2 property from 1973 onwards. More importantly the appellate court went wrong by placing reliance on an averment in the plaint, in Ext.A3 original suit which was dismissed by the court below concurrently. That apart the appellants were not parties in the aforesaid O.S.No.514/1992. RSA.No. 214 of 2008 23 22. Coming to oral evidence adduced by the respondents, they were examined as DWs 1 to 3. DW1 is the secretary of the first respondent, who took charge in the year 2002 only and he has no personal knowledge as regards the hostile possession of the item No.2 from 1972 onwards and his evidence with respect to alleged possession of item No.2 before 2002 is only hearsay evidence. Similarly DW2 is another Secretary who took charge in the year 1986. Nobody was examined to prove the respondent's hostile possession of item No.2 against the appellant from 1972-1986. I am of the opinion that the evidence of DWs 1 and 2 does not inspire confidence to arrive at a finding that the first respondent was in hostile possession of item No.2 in denial of the title of the appellant. To sum up neither the oral evidence nor RSA.No. 214 of 2008 24 documentary evidence would prove the hostile possession of item No.2, by the first respondent, in denial of the title of the appellant. It is to be remembered that mere possession does not necessarily mean that it is adversarial to the true owner. The appellate court failed to examine the evidence of DWs 1 to 3 and Exts.X1 to X4 in its correct perspective and so the appellate court is not justified in holding that the title and possession of the appellant had been lost by adverse possession. In other words the respondents failed to prove that they have perfected their title, in denial of the title of the appellant, by peaceful and continuous possession of item No.2 for more than 12 years. The first question of law is answered accordingly. 23. Coming to the second question of law the RSA.No. 214 of 2008 25 suit is one for declaration of title and recovery of possession of item No.2 from the respondents, filed by the appellant herein. No counter claim was filed by the respondents seeking an injunction restraining the appellant from interfering with their alleged possession of item No.2 and no such relief was granted by the lower court. But the appellate court has exceeded its jurisdiction and granted an injunction against the appellant without a prayer from the respondents. That apart, no circumstances has been brought out in evidence to prove any kind of apprehension in the mind of the respondents that the appellants would encroach upon item No.2 property . In the absence of any kind of apprehension in the mind of the respondents, the appellate court is not justified in granting an injunction against the RSA.No. 214 of 2008 26 appellant without a prayer for the same by way of a counter claim. The second question of law is also answered against the respondents accordingly. In the above analysis this Court is inclined to set aside the impugned judgment and decree passed by the appellate court and I do so. The judgment and decree passed by the lower court will stand re-stored to the files. The appeal is allowed accordingly. Sd/- **K.HARILAL, JUDGE** DST/AMV/27/12/2018