Bhavani Amma and others v. Sreekala and others (RSA No.918/2013 & CO No.72/2015)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, ``` ## **`1943`** ``` RSA NO. 918 OF 2013 ``` ``` AGAINST THE JUDGMENT AND DECREE IN AS 172/2006 OF ``` ``` I ADDITIONAL DISTRICT COURT ,KOLLAM AGAINST THE JUDGMENT AND DECREE IN OS 41/2001 OF MUNSIFF MAGISTRATE COURT, PARAVOOR ``` ## **`APPELLANTS/APPELLANTS 1, 2 & 4/DEFENDANTS 4,5 & 7:`** ``` 1BHAVANI AMMA AGED 95 YEARS D/O.JANAKI AMMA,VADAKKATHINAKAM VEEDU, KONGAL CHERRY,KOTTAPPURAM VILLAGE,KOLLAM DIST 2RADHAMONY AGED 69 YEARS D/O.BHAVANY AMMA, OF DO DO 3CHANDRIKA AGED 56 YEARS D/O.BHAVANI AMMA, OF DO DO BY ADVS. SRI.ALEX N.MATHEW (KOLLAM) SRI.JAMES JOSE SRI.H.RAMANAN ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 4/ PLAINTIFF AND DEFENDANTS`** ## **`1 TO 3`** ``` 1SREEKALA AGED 45 YEARS D/O.GOWRIKUTTY AMMA,THACHILOTTU KIZHAKKATHIL VEEDU,KONGAL CHERRY,KOTTAPPURAM VILLAGE,KOLLAM PARAVOOR PO 691301 2DISTRICT COLLECTOR CIVIL STATION,KOLLAM, PIN 691013 3TAHSILDAR ``` ``` RSA No.918/2013 & CO No.72/2015 ``` **==> picture [20 x 21] intentionally omitted <==** ``` TALUK OFFICE,KOLLAM, PIN – 691 001 4VILLAGE OFFICER KOTTAPPURAM VILLAGE OFFICE,KOTTAPPURAM KOLLAM PARAVOOR P O - 691301 BY ADVS. R1 BY SRI.V.PREMCHAND ``` ``` R2 TO R4 BY GOVERNMENT PLEADER SRI BAIJU DEVRAJ ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2022, ALONG WITH CO.72/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA No.918/2013 & CO No.72/2015 ``` ..3.. , # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943 ``` ``` CO NO. 72 OF 2015 IN RSA 918/2013 OF HIGH COURT OF KERALA ``` ## **`CROSS APPELLANT/1ST RESPONDENT`** ``` SREEKALA D/O.GOWRIKUTTY AMMA,THACHILOTTU KIZHAKKATHIL VEEDU, KONGAL CHERRY, KOTTAPPURAM VILLAGE, KOLLAM,PARAVOOR PO 691301 BY ADV SRI.K.SUBASH CHANDRA BOSE [DIED] ``` ## **`RESPONDENTS/APPELLANTS 2 & 3 AND RESPONDENTS 2 TO 4:-`** 1 `RADHAMONY, AGED 71 YEARS,’ D/O BHAVANI AMMA, VADAKKATHINAKAM VEEDU, KONGAL CHERRY, KOTTAPPURAM VILLAGE, KOLLAM DISTRICT X` 2 `CHANDRIKA, AGED 58 YEARS, D/O BHAVANI AMMA, VADAKKATHINAKAM VEEDU, KONGAL CHERRY, KOTTAPPURAM VILLAGE, KOLLAM DISTRICT PARAVOOR P.O, 691 301` 3 `DISTRICT COLLECTOR CIVIL STATION, KOLLAM 691 013` 4 `TAHSILDAR, TALUK OFFICE, KOLLAM 691 001` 5 `VILLAGE OFFICER, KOTTAPPURAM VILLAGE OFFICE, KOTTAPPURAM, KOLLAM, PARAVOOR P,O – 691 301 THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR` ``` RSA No.918/2013 & CO No.72/2015 ``` **==> picture [20 x 21] intentionally omitted <==** ``` ADMISSION ON 02.02.2022, ALONG WITH RSA.918/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA No.918/2013 & CO No.72/2015 ``` ..5.. , ## **[RSA Nos.918/2013 & CO No.72/2015]** ## **JUDGMENT** ## **RSA Nos.918 of 2013** There has been no representation for the appellants since 06.01.2022. The appellants remained unrepresented today also. Therefore, RSA No.918 of 2013 is dismissed for non-prosecution. ## **CROSS OBJECTION NO.72 OF 2015** The plantiff/respondent No.1 is the cross appellant. 2. The brief facts required for the adjudication of the cross objection are narrated below. 2.1 The plaintiff instituted O.S. No.41/2001 beore the Munsiff’s Court, Paravoor for declaring that she has perfected title over the ‘green shaded area’ in Ext. C1(b) plan comprised in re-survey No.350/15 by way of adverse possession and for other consequential reliefs. The plaintiff pleaded that she has acquired title over the **==> picture [218 x 33] intentionally omitted <==** plaint schedule property, which is described as 6½ cents of land and excess extent, as per sale deed No. 3222 dated 23.09.1968 (Ext.A1). Her further case is that, the ‘green shaded portion’ in Ext.C1(b) plan lying on the immediate east of the 6½ cents of land comprised in resurvey No.350/17 also belongs to her under Ext. A1 sale deed. On realising that the green shaded portion in Ext.C1(b) plan remained in the name of one Vasudevan Pillai, she prayed for effecting necessary correction in the revenue records to the Revenue Authorities. 3. The contesting defendants 4 to 8 resisted the suit setting up the pleading that the intention of the plaintiff was to grab the property belonging to Shri. Vasudevan Pillai. They pleaded that the property of Vasudevan Pilaii was in their possession and enjoyment. According to the contesting defendants, 6 ½ cents of property alone was sold by Janardhanan Pillai and Sadasivan Pillai as per the sale deed No. 3222 dated 23.09.1968 **`RSA No.918/2013 & CO No.72/2015`** ..7.. , 4. The Trial Court decreed the suit holding that the plaintiffs acquired right over the ‘green shaded portion’ in Ext.C1(b) plan and directed the official defendants to correct the revenue records accordingly. The Trial Court also granted prohibitory injunction against defendants 4 to 8 restraining them from trespassing upon the plaint schedule property which includes the disputed ‘green shaded’ portion in Ext.C1(b) plan. 5. Defendants 4 to 8 challenged the decree and judgment of the Trial Court by filing A.S.No.172/2006 before the District Court, Kollam. The First Appellate Court partly allowed the appeal. The judgment and decree granting declaration and mandatory injunction were set aside and the decree of prohibitory injunction was modified whereby defendants 4 to 8 were restrained by a permanent prohibitory injunction from interfering with the peaceful enjoyment of the property which is shown in ‘red and green’ colour in Ext.C1(b) plan. **`RSA No.918/2013 & CO No.72/2015`** ..8.. , 6. The plaintiff challenged the decree and judgment of the First Appellate Court to the extent it set aside the judgment and decree of the Trial Court granting declaration and mandatory injunction in respect of the plaint Schedule Property in the Cross Appeal. 7. Heard Sri. Premchand, the learned counsel appearing for the plaintiff. The following substantial question of law is formulated. ‘Whether the First Appellate Court is justified in setting aside the declaration that the plaintiff has acquired right over the green shaded portion in Ext.C1(b) plan.’ 8. The case of the plaintiff is that she has perfected title over the ‘green shaded’ portion in Ext.C1(b) plan by way of adverse possession. The challenge of the contesting defendants is that the disputed property belongs to Shri. Vasudevan Pillai and they are in possession of this property for and on behalf of Shri. Vasudevan Pillai. The First Appellate Court after **==> picture [218 x 33] intentionally omitted <==** appreciating the rival contentions based on the materials placed before the Court recorded the finding that the green shaded portion in Ext.C1(b) plan belongs to Shri. Vasudevan Pillai. The First Appellate Court further found that the plaintiff has acquired possesary title over the disputed land. The Court held that mere possession for a period, however long, would not survive against the right of Shri. Vasudevan Pillai, the real owner of the property. 9. The question that falls for consideration is whether the plaintiffs have acquired title over the property by way of adverse possession. The relevant pleadings set up by the plaintiffs are contained in paragraph 5 of the plaint, which reads thus:- “Resurvey പ്രകാരം 350/17 Resurvey 350/15 പട്ടിക വസ്തുവിന് കിഴക്കുവശം 17.4 മീറ്റർ നീളത്തിലും 3.8 മീറ്റർ വീതിയിലും കാണിച്ചിരിക്കുന്ന സ്ഥലവും പഴയ സർവ്വേ 1253 .ൽ 32 സെ ന്റും ഉള്ള വസ്തുവിൽ തെ ക്കേ ഭാഗം 8.5 സെ നറ‌ വസ്തുവിന് ത തൊട്ടൂ മേക്കുഭാഗം സ്ഥിതി ചെ യ്യുന്ന വാദിവക പട്ടിക വസ്തുവകകലുള്ളതും ടി വസ്തുവിനനോട് ചേ ർന്നു വടവിൽ കൂടുതൽ വസ്തുവകകൾ ഏതെ ങ്കിലും കാണപ്പെടുന്ന പക്ഷം അവയിൽ മറ്റാർക്കെങ്കിലും ഏതെ ങ്കിലും വിധ അവകാശങ്ങൾ സിദ്ധിച്ചിട്ടുണ്ടെങ്കിൽ കൂടി വാദിയുടെയും ടി ``` RSA No.918/2013 & CO No.72/2015 ``` **==> picture [26 x 21] intentionally omitted <==** യാളുടെ മുൻ ജന്മിയുടെയും നിരന്തരവും ദീർഘവും നിരാക്ഷേ പവുമായ 30 വര്ഷകാലങ്ങൾക്കും മേലായുള്ള കൈ വശാവകാശപ്രകാരം വാദിയയക്കു എതിർ കൈ വശ്യം സിദ്ധിച്ചിട്ടുള്ളതും കലഹരണദദോഷമുള്ളതുമാകുന്നു.” 10. In a case of adverse possession of land, possession must be adequate in continuity, in publicity and in extent to show that the possession is adverse to the true owner. The possession must start with a wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continue over the statutory period. The requisite ingredient of animus possidendi (intention to possess) should be present when claiming ownership by taking the plea of adverse possession. 11. In **Karnataka Board of Wakf v. Government of India & Others [(2004) 10 SCC 779]** , the Apex Court had an opportunity to consider the nature and acts amounting to adverse possession and held thus: “Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile ``` RSA No.918/2013 & CO No.72/2015 ``` ..11.. , possession by clearly asserting hostile title in denial of the title of the true owner. It is a wellsettled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.” ## 12. In **P.T. Munichikkanna Reddy & Others v.** ## **Revamma & Ors [(2007) 6 SCC 59]** , while dealing with the concept of adverse possession, the Honourable Apex Court held thus: “Therefore, to assess a claim of adverse possession, two-pronged enquiry is required: 1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.” ## 13. In **Uttam Chand (dead) through LRs v Nathu** ## **Ram (dead) through LRs & Ors** [2020 SCC Online SC ``` RSA No.918/2013 & CO No.72/2015 ``` **==> picture [26 x 21] intentionally omitted <==** 37], the Apex Court reiterated that only having long continuous possession is not enough to perfect title by adverse possession and all other ingredients like possession that is hostile, exclusive, uninterrupted, etc., are also necessary. 14. Yet another aspect that requires consideration is that the plaintiffs have not specifically admitted title of the true owner. At the same time they claim independent title over the property. Denial of title of the true owner and claim by way of adverse possession are mutually inconsistent. Therefore, this Court is of the view that the plaintiffs have failed to set up necessary pleadings required to claim title over the disputed property by way of adverse possession. The First Appellate Court carefully analysed the pleadings, evidence and other materials placed before it, and found that the plaintiffs have no title over the disputed portion, marked as ‘green shaded’ in Ext.C1(b) plan. ``` RSA No.918/2013 & CO No.72/2015 ``` **==> picture [26 x 8] intentionally omitted <==** **==> picture [4 x 3] intentionally omitted <==** 15. The substantial question of law is answered against the appellant in the cross objection. The cross objection lacks merits and is dismissed. Pending interlocutory applications, if any, stand closed. **Sd/K. BABU, JUDGE** kkj