B.M. Moosakunchi v. M.A. Sahira and Ahamed alias Pathu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 10TH DAY OF FEBRUARY 2012/21ST MAGHA 1933** ## **RSA.NO. 421 OF 2005 ( )** **---------------------------------AS.201/1997 OF DISTRICT COURT, KASARAGOD OS.310/1996 OF ADDL.MUNSIFF COURT, KASARAGOD** ## **APPELLANT(S)/APPELLANT:PLAINTIFF::** **---------------------------------------------------------** **B.M.MOOSAKUNCHI, S/O.ABDUL KHADER, KOPPALA HOUSE BANGARA MANJESHWARA VILLAGE&POST, KASARAGOD TALUK.** ## **BY ADV. SRI.P.K.MUHAMMED** ## **RESPONDENT(S)/RESPONDENTS/DEFENDANTS:** **----------------------------------------------------------------------** **1. M.A.SAHIRA, D/O.M.A.ABOOBACKER, W/O.U.M.HAMMED NEAR FARUK SHAMIL BENGARA MANJESHWAR VILLAGE AND POST KASARAGOD TALUK.** **2. AHAMMED ALIAS PATHU, S/O.ANDO, NEAR SASTHA TEMPLE, VOMANJUR BENGARA MANJESHWAR VILLAGE& TALUK, KASARAGOD.** ## **R2 BY SRI.SURESH KUMAR KODOTH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.421 of 2005 ==================================== Dated this the 10[th] day of February, 2012** ## **J U D G M E N T** The following substantial questions of law are framed for a decision in this Second Appeal. (i) In the facts and circumstances of the case whether courts below are justified in denying a decree and judgment for recovery of possession in the absence of legal evidence from the side of the defendants claiming adverse possession? (ii) In the facts and circumstances of the case whether courts below are justified in placing reliance on the evidence of D.Ws.1 and 2 who are strangers and not authorised by the defendants to give evidence? (iii) Whether courts below were justified in **R.S.A. No.421 of 2005** -: 2 :- placing reliance on Exts.B1 to B6 which are not proved properly? Whether courts below applied th correct law applicable to the facts of the case? 2. Second Appeal arises from the judgment and decree in O.S. No.310 of 1996 of the court of Additional Munsiff, Kasargod as confirmed by the learned District Judge, Kasargod in A.S. No.201 of 1992. Appellant-plaintiff sued for recovery of possession of plaint B schedule, described as 2.1 cents in R.S. No.92/6B on the strength of his title. According to the appellant, plaint B schedule forms part of plaint A schedule described as six cents and originally belonged to his mother. The mother executed Ext.A1, settlement deed dated 23.09.1959 regarding plaint A schedule (of which according to the appellant plaint B schedule forms part) in favour of the appellant and her other children. The other co-owners released their right to the appellant as per Exts.A2 and A3. One Asiamma was holding the property of the mother of appellant as a kudikidappukari and she got purchase certificate (Ext.B1 dated 21.08.1976) from the Special Tahsildar (LR), Kasargod in O.A. No.379 of 1973. She assigned ten cents which she got by way of kudikidappu and ultimately it reached the second respondent. Alleging that respondents-defendants are in unlawful possession of plaint B ## **R.S.A. No.421 of 2005** -: 3 :- schedule, appellant sought recovery of possession of the said item. 3. Respondents contended that appellant has no title over plaint B schedule and at any rate his title if any is lost by adverse possession and limitation. 4. The Advocate Commissioner in Ext.C2, plan marked the disputed property as 1.1 cents in R.S.No.92/6B2. Trial court held that appellant had title over the disputed property but it is lost by adverse possession and the law of limitation. The suit was dismissed. That finding was confirmed by the first appellate court. Hence this Second Appeal urging the above substantial questions of law. 5. It is contended by the learned counsel that finding entered by the courts below that title of the appellant is lost by adverse possession and limitation is not correct. According to the learned counsel, on the facts and circumstances courts below ought to have held that possession of the disputed property with the respondents and their predecessor in interest is not shown to be hostile to the title of appellant. 6. Learned counsel for respondents contended that the evidence would show that respondents and their predecessors in interest were in long possession and enjoyment of the property even beyond the statutory period as if it was their property and **R.S.A. No.421 of 2005** ## -: 4 :- hence they have perfected title by adverse possession and limitation. Learned counsel has placed reliance on the decisions ## in **Raman v. S.Devadasa Maller and Others** (1991 [1] KLJ 377 – para 10) and **Devaki Pillai v. Gouri Amma** (2003 [1] KLT 421). It is contended that finding of fact entered by the courts below requires no interference. 7. In the first of the decisions cited supra it is held in paragraph 10 that when a grantee in taking possession under his deed goes unintentionally and by mistake beyond his proper boundaries and enters upon and actually occupies and improves land not included in the deed, claiming and supposing it to be his, his occupation is to be deemed adverse within the meaning of the statute of limitation and if such possession continued for the required length of time it will bar the right of the true owner. In the second of the decisions cited it is held that if the true owner does not take any action within the period of limitation, title by adverse possession is perfected as the three conditions of 'peaceful', 'open' and 'continuous' possession are satisfied. It is also held that to be adverse, the possession must be nec vi, nec clam, nec precario. 8. Coming back to the facts of this case, it is not disputed that Asiamma started occupation of the 10 cents **R.S.A. No.421 of 2005** ## -: 5 :- belonging to the mother of appellant as a kudikidappukari and that it is by Ext.B1, purchase certificate that she was assigned kudikidappu on 21.08.1976. The first appellate court in paragraph 6 of its judgment referred to the long possession of respondents and their predecessor in interest. It is held that report of the Advocate Commissioner would show that property admittedly belonging to and in the possession of appellant is lying in two taks on the north and south of plaint B schedule and that appellant when examined as P.W.1 stated that he learned about plaint A schedule lying in two taks only after the Advocate Commissioner submitted the report. From the evidence learned District Judge took the view that appellant has no idea about the disputed property and that the improvements in the disputed property and the 10 cents which Asiamma obtained by way of kudikidappu also revealed that appellant and his predecessor in interest were out of possession of the disputed property for more than 12 years. 9. Then the question is whether on facts and circumstances the plea of adverse possession could be availed by the respondents? Assuming that Asiamma come into possession of the disputed property along with 10 cents (regarding which she got purchase certificate as per Ext.B1 dated 21.8.1976) I must bear in mind that until she got purchase ## **R.S.A. No.421 of 2005** ## -: 6 :- certificate on 21.08.1976 she was in permissive occupation of the entire property including the disputed land acknowledging title of mother of the appellant, the landlady. If that be so, possession of Asiamma for whatever length it be, cannot be said to be adverse to the title of the appellant or his predecessor in interest. On the other hand it was merely permissive occupation. 10. True that Asiamma obtained purchase certificate for the 10 cents as per Ext.B1 dated 21.08.1976 and as seen from Ext.A5, she assigned the said 10 cents to Abdulla Haji on 27.11.1986. The said Abdulla Haji assigned the 10 cents to the first respondent who, in turn, assigned it to the second respondent as per Ext.B6 dated 22.10.1996. 11. I stated that Asiamma obtained purchase certificate in respect of 10 cents as per Ext.B1, dated 21.08.1976 and it is by Ext.A5, dated 27.11.1986 that she transferred the 10 cents to Abdulla Haji. Assuming that while transferring the 10 cents the disputed property was also given to the possession of Abdulla Haji (which is not revealed by Ext.A5, assignment deed), I must understand that until Ext.A5, dated 27.11.1986 Asiamma was in possession and enjoyment of the disputed property as per permission obtained from the predecessor in interest of appellant. There is no case or evidence that after Ext.B1, Asiamma had shed her character as permissive occupant of the ## **R.S.A. No.421 of 2005** ## -: 7 :- disputed land and asserted hostile title to the appellant or his predecessor in interest. Therefore until Ext.A5, assignment deed dated 27.11.1986 possession and enjoyment of the disputed land with Asiamma can only be treated as permissive so far as it is not shown that at any time after Ext.B1, Asiamma shed her character as permissive occupant of the disputed property and asserted title with hostile animus to the predecessor in interest of the appellant or the appellant. Therefore possession of the disputed property can be treated as adverse to the appellant or his predecessor in interest only from Ext.A5, dated 27.11.1986. The suit is filed in the year, 1996 i.e., within 12 years of Ext.A5, dated 27.11.1986. In the circumstances it cannot be stated that any of the respondents perfected title over the disputed property by adverse possession and the law of limitation. 12. I must refer to paragraph 10 of the decision in ## **Raman v. S.Devadasa Mallaer and Others** (supra) which I have already referred to above. There, it was a grantee taking possession of excess land as per a deed asserting hostile title to the landlord. In this case I stated that it was by permission that Asiamma got possession of 10 cents and the disputed land and in the absence of any plea or evidence that she shed that character, such character continued until Ext.A5, assignment **R.S.A. No.421 of 2005** ## -: 8 :- deed dated 27.11.1986 in favour of Abdulla Haji. Therefore the decision relied on by the learned counsel has no application. 13. It is contended by learned counsel that possession of Asiamma is also to be tacked on with the possession of Abdulla Haji. That makes no change as possession of Asiamma was permissive. 14. It is seen that the courts below have not adverted to the above aspect of the matter but proceeded as if Asiamma had got into possession of disputed land holding hostile animus to the title of appellant. 15. In the light of what I have stated above, finding of the courts below that respondents have perfected title by adverse possession and limitation cannot stand. 16. Going by Ext.C2, the disputed land is 1.1 cents in R.S. No.92/6B2 though in the plaint B schedule the extent of land trespassed is stated as 2.1 cents. It follows that entitlement of appellant to get recovery on the strength of title is confined to the 1.1 cents in R.S.No.96/6B2. 17. Substantial questions of law framed are answered accordingly. Second Appeal is allowed as under: (i) Finding entered by the courts below that ## **R.S.A. No.421 of 2005** -: 9 :- respondents have perfected title by adverse possession and limitation as regards 1.1 cents in R.S. No.96/6b2 is set aside. (ii) Judgment and decree in A.S. No.201 of 1997 of the court of learned District Judge, Kasargod and of learned Munsiff, Kasrgod in O.S. No.310 of 1996 are set aside. (iii) O.S. No.310 of 1996 is decreed. Appellant is allowed to recover possession of the 1.1 cents in R.S. No.96/6B2 marked by the Advocate Commissioner in Ext.C2. Exhibit C2 shall form part of the decree of this Court. (iv) Parties are directed to suffer their costs throughout. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv