Brijithamma v. Social Welfare Center and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 8[TH] DAY OF DECEMBER 2021 / 17TH ``` ``` AGRAHAYANA, 1943 ``` ``` RSA NO. 705 OF 2010 ``` ``` AGAINST THE JUDGMENT AND DECREE IN AS 301/2005 OF THE ADDITIONAL DISTRICT COURT - I, KOTTAYAM OS 429/2001 OF MUNSIFF COURT, CHANGANACHERRY ``` ## **`APPELLANT/APPELLANT/IST DEFENDANT :`** ``` BRIJITHAMMA, D/O VARKEY NOW RESIDING AT SOCIAL WELFARE CENTRE,, 28/1960, FROM VYSIANTEDATHU, PUZHAVATHU MURI,, CHANGANACHERRY VILLAGE. BY ADVS. SRI.JOHN VARGHESE SRI.P.M.JOSEPH ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFFS AND 2ND DEFENDANT:`** - `1 SOCIAL WELFARE CENTER, 28/1960, ST.MICHAEL'S STREET, PUZHAVATHU MURI,, CHANGANACHERRY TALUK.` - `2 T.C.JOSEPH S/O.CHERIAN THOTTAKKADAN PARAMBIL, PERUNNA EAST MURI,, CHANGANACHERRY VILLAGE.` - `3 ROSAMMA W/O.JOSEPH PADINJATTIYIL HOUSE, MALAKKUNNAM KARA,, ITHITHANAM MURI, KURICHI VILLAGE.` - `4 PONNAMMA W/O.VARGHESE THURUTHUMALIL HOUSE, PURACKADU VILLAGE,, AMBALAPPUZHA TALUK.` - `5 THANKAMMA MATHEW D/O.MATHEW LAKAYIL, PUZHAVATHU MURI, CHANGANACHERRY VILLAGE.` ``` R2, R3 AND R4 BY ADV SRI.K.V.SABU ``` RSA No. 705 of 2010 **==> picture [20 x 9] intentionally omitted <==** **==> picture [4 x 3] intentionally omitted <==** ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RSA No. 705 of 2010 ..3.. , ## **JUDGMENT** Defendant No.1 in O.S.No.429/2001 on the file of the Munsiff's Court, Changanacherry is the appellant. The plaintiffs and defendant No.2 are the respondents. 2. Material facts relevant for the adjudication of this appeal are as follows:- 2.1 Plaintiff No.1 is a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (hereinafter referred to as ‘the Act, 1955’ for short). Plaintiffs 2 to 4 and the defendants are members of the plaintiff No.1 society. Plaint schedule property is 2 Ares and 40 sq.meters of land and a building therein. The plaintiff society acquired plaint schedule property under Exhibit A1 sale deed. 2.2 Defendant No.2 executed Exhibit A2 gift deed in favour of defendant No.1. The plaintiffs contended that defendant No.2 had no authority to execute Exhibit A2, and hence the same is liable to be cancelled. RSA No. 705 of 2010 **==> picture [20 x 21] intentionally omitted <==** 2.3 Defendant No.1 resisted the suit contending that the plaintiff No. 1 society is not in existence and that plaintiffs 2 to 4 are not members of the Society. Defendant No.1 further contended that she has perfected title over the plaint schedule property by way of adverse possession. Defendant No.2 did not contest the suit. 2.4. During the trial, PWs 1 to 3 were examined on the side of the plaintiffs and Exts.A1 to A3 were marked. 3. The Trial Court decreed the suit cancelling Exhibit A2 gift deed and passed a permanent prohibitory injunction restraining defendant No.1 from alienating the plaint schedule property or from inducting strangers in the property or from committing any act of waste therein. 4. Defendant No.1 challenged the decree and judgment of the Trial Court before the District Court, Kottayam in A.S.No.301/2005. The First Appellate Court confirmed the judgment and decree dated 18.07.2005 of the Trial Court. 5. Defendant No.1 is in appeal before this Court RSA No. 705 of 2010 **==> picture [20 x 21] intentionally omitted <==** under Section 100 of the Code of Civil Procedure. On 20.08.2010, this Court admitted the Regular Second Appeal on the following substantial questions of law: ‘1.Whether the courts below were justified in holding that the President of the 1[st] plaintiff alone cannot assign the plaint schedule property especially when Ext.A2 is executed with the concurrence of the governing body of the 1[st] plaintiff society. 2.Whether the courts below were justified in cancelling Ext.A2 in the peculiar facts and circumstances of the case.' 6. Heard Shri. John Varghese, the learned counsel for the appellant/defendant No.1 and Shri. K.V.Sabu, the learned counsel appearing for respondents 2 to 4/plaintiffs. 7. Admittedly, the plaint schedule property was acquired by plaintiff No. 1 society as per Ext.A1 sale deed. The appellant/defendant No.1 was also a member of that Society. The learned counsel for the appellant contended that defendant No.2, the executant of Ext.A2 gift deed, was competent to execute the same. The challenge of the respondents/plaintiffs is that defendant RSA No. 705 of 2010 **==> picture [20 x 21] intentionally omitted <==** No.2 was incompetent to execute Ext.A2 gift deed in favour of defendant No.1. 8. Plaintiff No.1, a society registered under the Act, 1955, has become the absolute owner of the plaint schedule property by way of Ext. A1. Since plaintiff No.1 is a registered Society having a separate legal entity, Section 8 of the Act, 1955 governs the field, which reads thus:- “8. **Property of society how vested.** --The property, movable and immovable, belonging to a society, if not vested in trustees, shall be deemed to be vested, for the time being in the governing body of such society, and in all proceedings, civil and criminal, may be described as the property of the governing body of such society by their proper title.” 9. Going by Section 8 of the Act, 1955, the movable and immovable property of a society registered under the Act shall be vested in the governing body of such society if not vested in trustees. In the present case, the defendants have no case that the plaint schedule property vested with trustees. Therefore, the property is vested with the governing body of plaintiff RSA No. 705 of 2010 **==> picture [20 x 21] intentionally omitted <==** No. 1 society. 10. The necessary conclusion is that defendant No.2 had no authority to execute Exhibit A2 gift deed in respect of the plaint schedule property in favour of the appellant/ defendant No.1. The Trial Court as well as the First Appellate Court held that Exhibit A2 would not confer any right in respect of the plaint schedule property on the appellant/defendant No.1. Therefore, the Trial Court cancelled Exhibit A2. 11. Yet another contention of the appellant/ defendant No.1 is that she has perfected title by way of adverse possession over the plaint schedule property. However, apart from the pleadings in the written statement to the effect that she has perfected title over the plaint schedule property by way of adverse possession, she has not adduced any evidence in support of her pleadings. 12. The concept of adverse possession is fundamentally based on the principle that a presumption RSA No. 705 of 2010 **==> picture [20 x 21] intentionally omitted <==** arises that the actual titleholder has abandoned his possessory rights if despite knowing that some other person is claiming hostile possession over his land, but he prefers to keep quiet and not take any action against the said person as provided under the law. 13. The law of adverse possession traces back to the Code of Hammurabi. Rule 30 of the Code states thus: “if a chieftain or a man leave his house, garden, and field and hires it out, and someone else takes possession of his house, garden, and field and uses it for three years: if the first owner return and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.” ## 14. In **Perry v Clissold [(1907) A.C. 73]** the Judicial Committee of the Privy Council settled the concept of the adverse possession as thus: "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitations applicable to the case, his RSA No. 705 of 2010 **==> picture [20 x 21] intentionally omitted <==** right is forever extinguished and the possessory owner acquires an absolute title. " 15. In **Nair Service Society Ltd vs Rev. Father K.C. Alexander (AIR 1968 SC 1165)** a three Judges Bench of the Apex Court upheld the principles declared in **Perry v Clissold** (supra). 16. 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 continued 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. 17. 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: RSA No. 705 of 2010 ..10.. , “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 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.” ## 18. 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 RSA No. 705 of 2010 **==> picture [26 x 21] intentionally omitted <==** intention in the upkeep of the property.” 19. In **Uttam Chand (dead) through LRs v Nathu Ram (dead) through LRs & Ors [2020 SCC Online SC** **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. 20. Yet another aspect that requires consideration is whether the appellant/defendant No.1 has taken an inconsistent plea while setting the claim of adverse possession. She came to possession under Ext.A2 gift deed. In **Narasamma v. A. Krishnappa** [Manu/SC/0610/ 2020], the Apex Court held that the plaintiff, having come into possession under an agreement, to set up a claim of adverse possession, must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the true owner. RSA No. 705 of 2010 **==> picture [26 x 21] intentionally omitted <==** In **Ram Nagina Rai v. Deo Kumar Rai** [(2019) 13 SCC 324], while dealing with a factual situation, where there was permissive possession given by the owner and the defendant claimed that the same had become adverse, it was held that, it has to be specifically pleaded and proved as to when possession became adverse in order for the real owner to lose title 12 years hence from that time. 21. In the present case, the plea of the appellant/defendant No.1 is that she obtained possession of property lawfully under Exhibit A2 deed and continued to remain in possession till the date of suit. Therefore, on that ground alone, the plea of adverse possession is not available to the appellant/defendant No.1. 22. The appellant/defendant No.1 failed to establish the ingredients for claiming title by way of adverse possession, as discussed above. 23. The courts below concurrently found that Exhibit A2 gift deed is liable to be set aside and the appellant/defendant No.1 is not entitled to the title by RSA No. 705 of 2010 **==> picture [26 x 21] intentionally omitted <==** way of adverse possession. The First Appellate Court carefully analysed the pleadings, evidence and other materials placed before it and confirmed the findings of the Trial Court. This Court finds no reason to interfere with the impugned judgments. 24. This Regular Second Appeal lacks merits and is dismissed. The parties are directed to bear their respective costs. Pending interlocutory applications, if any, stand closed. Sd/- **K. BABU, JUDGE** kkj