Damodara @ Lakshmana Nayak v. K. Vishnu Irniraya

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932** ## **SA.No. 810 of 1999(D)** **-----------------------------(A.S. NO.178/1996 OF SUB COURT, KASARAGOD, O.S. NO. 376/1991 OF MUNSIFF'S COURT, KASARAGOD)** **.........** ## **APPELLANT IN S.A – APPELLANT IN THE LOWER APPELLATE COURT - DEFENDANT IN THE SUIT:** **-------------------------------------------------------------------------------------------------------** **DAMODARA @ LAKSHMANA NAYAK, REPRESENTED BY HIS GENERAL POWER – OF – ATTORNEY HOLDER K.ANANTHA NAYAK, S/O. K. KRISHNA NAYAK, RESIDING AT KUMBLA TOWN, KOIPADY VILLAGE, KASARAGOD TALUK, P.O. KUMBLA, KASARAGOD DISTRICT.** **BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE, ADV. SRI. P.B. KRISHNAN.** **RESPONDENTS IN S.A. - RESPONDENT IN THE LOWER APPELLATE COURT – PLAINTIFF IN THE SUIT:** **----------------------------------------------------------------------------------------------------------------** **K. VISHNU IRNIRAYA, S/O. LATE K. KRISHNA IRNIRAYA, ADVOCATE AND AGRICULTURIST, RESIDING AT KODAYAMMA, KOIPADY VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. KODYAME, VIA. KUMBLA.** ## **BY ADV. SRI.K.G.GOURI SANKAR RAI.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2010,THE COURT ON 09/06/2010 DELIVERED THE FOLLOWING:** **prv.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 810 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2010. ## **JUDGMENT** The defendant, who suffered a decree at the hands of the trial court and whose appeal was dismissed by the lower appellate court is the appellant before this court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiff, plaint A schedule property originally belonged to the joint family of the plaintiff and that forms part and parcel of R.S. 375/1 and 375/2 of Koipady village. A major portion of the property is enclosed within well laid boundary on all the four sides. The plaintiff pointed out that in I.P. No.14/1936 the property belonging to the family of the plaintiff was brought to sale. Even though the property was sold in auction, possession was not taken by the auction purchaser. Possession therefore continued with the S.A. 810/1999. 2 family of the plaintiff. It is alleged that whatever rights that were sold were re-purchased by the plaintiff's family. In those documents, unfortunately, the survey number was not shown. The plaintiff has been cultivating cashew in the property and the property absolutely belong to the family of the plaintiff. On coming to know that somebody else had applied for possession certificate in respect of plaint A schedule property, the plaintiff preferred an objection. However his objection was rejected and a possession certificate was given to Sri. K. Anantha Naik, who is the power of attorney holder of Sri.Lakshmana Naik. Sri. Lakshmana Naik is the adopted son of one Srinivasa Naik and none of them have any manner of right over the plaint schedule property. It is contended that the action of the Tahsildar in issuing possession certificate is contrary to law. At any rate, the plaintiff and his predecessors had perfected title over the property by adverse possession and nobody else had any manner of right over the suit property. S.A. 810/1999. 3 Since the defendants threatened to trespass into the property, the suit was laid. 3. The defendants resisted the suit. According to the defendant, neither the plaintiff nor the members of his family have any manner of right over the plaint schedule property. The suit property was purchased by Srinivasa Naik, the predecessor in interest of the defendant, in the auction conducted by Government of Madras on 28.6.1948. Ext. B2 is the title deed granted to Srinivasa Naik by Government of Madras. Srinivasa Naik had taken possession of the property. After the death of Srinivasa Naik, the defendant, who is the adopted son of Srinivasa Naik, succeeded to the property. His power of attorney holder is managing the property. Basic tax has been paid by the defendant and in the ceiling proceedings initiated, the suit property had been included. The property obtained by Srinivasa Naik had a boundary wall on its northern side separating it from the other properties. Property had an entrance on its north-western corner. However, after 4 S.A. 810/1999. obtaining an ex-parte order of injunction the plaintiff had closed that entrance. Disputing the allegations in the plaint, he prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendant had D.Ws.1 and 2 examined and Exts. B1 to B13 marked. Exts. C1 to C3 are the Commission reports and plan. On an evaluation of the evidence in the case, the trial court came to the conclusion that even though there was sale of the plaint schedule property, possession continued with the predecessor in interest of the plaintiff and defendant had no manner of right over the suit property. Holding so, the suit was decreed. Defendant carried the matter in appeal as A.S. 178 of 1996 before the Sub Court, Kasaragod. The appellate court on an independent evaluation of the evidence came to the conclusion that the trial court was justified in passing the S.A. 810/1999. 5 decree in favour of the plaintiff and dismissed the appeal. Hence this Second Appeal. 5. In this Second appeal, the following questions of law have been formulated: _“(A) In a suit for declaration of title basing on documents of title put in by the plaintiff, should not civil court enquire into the question of title as pleaded and as borne out by the documents of title relied, before it proceeds to grant the declaration?_ _(B) Is it stand that the plaintiff in the present suit successfully put forward the plea of title by prescription without acknowledging title of the defendant and pleading and proving extinguishment of that title by adverse possession and limitation?_ _© When a plaintiff suing for declaration of title puts forward and alternate plea of adverse possession, should not he plead and prove possession adverse to the defendants adequate in continuity, nature and extent, so as to prescribe title against the defendant?_ _(D) Whether, a plea that the plaintiff possessed the suit property thinking that the same is_ S.A. 810/1999. 6 _absolutely owned by him and his family, sufficient to bring about termination of the title of the defendant, assuming that such possession is actually proved?_ _(E) In order to lay a claim of title based on adverse possession, should not the adverse possessor know that the real owner is the defendant against whom the plea is raised, and should not the plaintiff plead and prove that he had been adversely possessing the property against the defendant?_ _(F) Has not the lower appellate court erred in not allowing the appeal upon finding that the plaintiff has not proved title under Exts.A1 and A2?_ _(G) Has not the defendant proved his exclusive title under Ext.B2?_ _(H) Is not the finding that the plaintiff has proved exclusive possession entitling him to get a declaration of possession unsustainable in law?_ _(I) Are not the finding of the trial court and the lower appellate court on the question of title of the plaintiff wholly illegal, and unsustainable?”_ S.A. 810/1999. 7 6. Both the courts have concurrently held that the plaint schedule property was the subject matter of auction sale and that a third party had purchased the same. However, they came to the conclusion on the basis of evidence adduced that the family of the plaintiff had continued to be in possession of the property and the auction purchaser did not get possession of the property. Holding so, decree was granted in favour of the plaintiff. 7. Learned counsel appearing for the appellant contended that the plea of the plaintiff is one based on adverse possession and limitation. The burden is therefore entirely on him to establish the said fact. He has to show that he has been in adverse possession against the true owner. It is his duty to say the time at which the possession became adverse. The document produced by the defendant do show that title and possession are with the defendant. Except Exts. A4, A5 and A6, which are letters said to have been written by Srinivasa Naik, no documents were produced by the plaintiff in support of his claim. But the S.A. 810/1999. 8 defendant had produced overwhelming evidence to show that there was an auction sale and in pursuance of the sale, possession was granted to the predecessor in interest of the defendant. The act of the courts below in placing heavy reliance on the commission report is without any justification. The law applicable in such cases have not been adverted to and the evidence has been improperly construed. Merely because the plaint schedule property lies with the properties owned by the plaintiff and lies within a compound wall, it does not follow that possession was not obtained in pursuance to the auction sale. The legal effect of Exts.A4, A5 and A6 has not been properly appreciated. The result is that the decrees granted by the courts below have resulted in miscarriage of justice. 8. Per contra, learned counsel appearing for the respondent tried to support the judgments and decrees of the courts below. The finding that the plaintiff was in possession of the property and that possession had not been transferred to the auction purchaser is a finding of fact and 9 S.A. 810/1999. does not call for any interference in this Second Appeal. That the plaintiff was in possession of the property is seen from Exts. C1 and C1(a). The report shows that the plaint schedule property lies as a compact plot along with the other properties owned by the plaintiff and lies within well defined boundaries on all sides. According to learned counsel, may be that the property was sold in auction, but possession was never obtained by the auction purchaser. Neither the defendant nor his predecessor in interest had ever enjoyed or has been in possession of the property. Exts. A4, A5 and A6 will clearly show that the predecessor in interest of the defendant did not obtain possession and that the property was enjoyed by the family of the plaintiff. Even when no reply was sent to Exts.A4, A5 and A6, the defendant did not resort to any legal measures to obtain possession of the property. It was therefore contended that no interference is called for with the judgments and decrees of the courts below. S.A. 810/1999. 10 9. It may at once be noticed that neither of the courts have found that the defendant has title to the suit property. The finding is though the property was sold in court auction, no possession was taken by the auction purchaser, or in other words the predecessor of the plaintiff has never been dispossessed from the plaint schedule property. He continued his possession in derogation of rights of all others and none can frowned to dispute the claim of the plaintiff. 10. The suit is based on possession and adverse title. Learned counsel appearing for the appellant drew the attention of this court to the decision reported in **Hemaji Wadhaji Jat v. Bhikhabhai Khengarbhai Harijan** (2008 (4) KLT 357(SC)), wherein it was held as follows: _“This court had an occasion to examine the concept of adverse possession in T. Anjanappa & Ors. v. Somalingappa & Anr. ((2006) 7 SCC 570). The court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile_ S.A. 810/1999. 11 _to the real owner and amounted to denial of his title to the property claimed. The court further observed that 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 real owner of the former's hostile action._ _.......... ............._ _Before parting with this case, we deem it appropriate to observe that the law of adverse possession which outs an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This substance would mean that the law gives seal_ S.A. 810/1999. 12 _of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner._ _We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loose its possession only because of his inaction in taking back the possession within limitation._ _In our considered view, there is an urgent need of fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of legal Affairs, Government of India for taking appropriate steps in accordance with law.”_ Learned counsel also relied on the decision reported in **Balakrishnan Alias Balan v. Venugopalan alias Venu** (2006(1) KLJ 577), wherein it was held as follows: _“For claiming adverse possession the defendants 1 and 2 have to plead and prove as to at what time their possession become adverse as_ S.A. 810/1999. 13 _held in V. Rajeshwari v. T.C. Saravanabava (2004 (1) SCC 551). The plea of adverse possession was raised only in the additional written statement. The defendants originally set up title in themselves. The two are mutually exclusive as held by the Supreme Court in Arundhati Mishra v. Sri. Ram charita Pandey (1994(2) SCC 29). The Supreme Court observed in that case as follows:_ _“The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.””_ 11. Learned counsel appearing for the respondents on the other hand relied on the decision reported in **Ram Narain Singh v. Harbans Singh** (AIR 1934 Lahore 684), wherein it was held as follows: _“Where a person had built a wall enclosing the site in dispute more than twelve years before the institution of the suit, it is sufficient proof of adverse possession.”_ He also placed considerable reliance on the decision reported in **Raman v. S. Devadasa Maller** (1991(1) KLJ 377) wherein it was held as follows: S.A. 810/1999. 14 _“Though some decisions said that there cannot be adverse possession if the defendant himself did not know that he was occupying somebody else's land, that does not appear to be the correct law. What is required to have hostile animus is not the knowledge that any particular individual is the owner and he is holding against him, but the animus to hold the property openly under the claim or colour of title in derogation of the title of all others whoever they may be, known or unknown. Possession as full owner implies denial of title of all others. That is why adverse possession is said to be hostile possession under the claim or colour of title. Possession under a wrong or mistaken impression that the defendant himself is the owner and nobody else in the world has ownership is also adverse possession, even if the fact that somebody else is the owner or his identity is not known. The possessor, who claims independent title, need not be aware that someone else is owner and even if he is aware that he is not the true owner he is not expected to make an enquiry as to who the true owner is. It is for the true owner to keep his eyes open to protect his right against open invasions. When a_ S.A. 810/1999. 15 _grantee, in taking possession under his deed, goes unintentionally and by mistake beyond his proper boundaries, and enters upon and actually occupies and improves lands 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. If continued for the required length of time, it will bar the right of the true owner.”_ 12. There can be no dispute regarding the proposition of law regarding adverse possession and limitation. The burden is on the person who claims adverse possession to establish the said fact. Since he admits title of the other person, the burden is heavy on him to prove adverse possession and limitation. In the case on hand, it may be noticed that the plaintiff does not claim title to the suit property. Although it is stated that Exts.A1 and A2 are in favour of the plaintiff, the courts below were not inclined to accept the plea of title based on those documents. The plaintiff has a claim that whatever was sold in auction sale S.A. 810/1999. 16 has been re-purchased by Exts.A1 and A2. However, the courts below were not impressed. 13. The plaint schedule property has an extent of 4 acres. Both the courts below have found that there was an auction sale of the property and the defendant has title to the suit property. It is an admitted fact that the plaint schedule property, which belonged to the family of the plaintiff is situate in Sy. No.12/3 of Kannur Village. Here, one contention taken by the learned counsel appearing for the appellant may be noticed. According to the learned counsel there is absolutely no evidence to show that the plaint schedule property originally belonged to the family of the plaintiff. 14. The contention is without merits. Though the plaintiff has not produced any document in that regard, it is admitted by D.W.1 that the property belonged to the family of the plaintiff and that it was due to his default in payment of revenue arrears that the sale was conducted. In the light of this specific admission, no further proof is necessary. S.A. 810/1999. 17 15. The other properties belonging to the family of the plaintiff lie in R.S. Nos.375/1 and 375/2 of Koipady Village. One may now refer to the commission reports and plan, namely Exts.C1, C2 and C3. The reports say that the property along with the property in R.S. No. 375/1 and 375/2 lies as a compact plot. The property comprised in R.S. No.12/3, which is the plaint schedule property and the property in R.S. Nos. 375/2 lie within well defined boundaries on all four sides with an entry on the northern side. The commissioner has also shown in the sketch the boundary, fence, which separated the property in R.S. No. 12/3 from the property in R.S. No.375/2 and which is alleged to have been removed by the plaintiff. Of course the Commissioner could not find any remanents of the boundary said to have been destroyed by the plaintiff. Moreover, there is little evidence in this case to show that there was a fence as alleged by the defendant. 16. It is true that in order to prove the fence separating the two properties, D.W.2 was examined and S.A. 810/1999. 18 Ext.B13 produced. The evidence did not appear to be very convincing. D.W.2 is admittedly a coolie, One cannot expect him to enter into agreement like Ext. B13. 17. Both the courts below were greatly impressed by Exts. A4, A5 and A6. Ext.A4 dated 14.10.1986 is a letter sent to the predecessor in interest of the defendant to the plaintiff's brother. In Ext.A4 title is asserted by the author of the letter. It also mentions that he had also sent a letter to the plaintiff and it speaks about the cultivation in the property. The letter says that the author of the letter had planted cashew plants in the plaint schedule property also unauthorisedly. It also says that earlier a letter had been sent to the plaintiff seeking settlement of the issue. 18. Ext. A5 is dated 14.2.1987 again written by the predecessor in interest of the defendant to the brother of the plaintiff. It says about the earlier letter and also the fact that the addressee had come, and met him and proposed a settlement. The letter says that in case the predecessor of the plaintiff is so inclined, he may purchase S.A. 810/1999. 19 the property. The author of the letter had also promised to pay value of improvements to the tune of Rs.1,500/- 19. A6 dated 15.2.1987 is a letter addressed to the plaintiff himself. The letter disclosed that on an earlier occasion the plaintiff and his brother had approached the author of the letter and has spoken about a settlement. The author of the letter offers again to sell the property or to surrender the same to him. Again he offers to pay Rs.1500/towards value of improvements. 20. The question is whether these items of evidence, namely, Exts.A4 to A6 and the commission reports and plan are sufficient to establish the case pleaded by the plaintiff. One may recall here that the plaintiff has claimed adverse possession and limitation in support of his claim for declaration of possession. True that these items of evidence do show that the plaintiff is in possession of the property. But that is far from saying that he and his predecessors have been continued in possession of the property for a long time and they perfected title by adverse possession and S.A. 810/1999. 20 limitation. Some of the answers of D.W.1 may show that he is not very familiar with the plaint schedule property. But that does not lead to the conclusion that the plaintiff is entitled to suit property. 21. One may now refer to the decisions referred to by the learned counsel for the appellant as well as the respondent. As already noticed, since the title is admitted, the burden is on the plaintiff, who claims adverse possession and limitation, to prove the said fact. He has not proved that his possession is adverse to that of the true owner of the property. It is for the person who claims adverse possession and limitation to show at what point of time his possession had become adverse. The plea of adverse possession and limitation has been considered in the decisions cited by the learned counsel for the appellant. 22. The decisions relied on by the learned counsel for the respondent do say that the act of enclosing the property and enjoying it for the requisite period may lead to the inference of adverse possession and limitation. It is not S.A. 810/1999. 21 necessary that there must be an open declaration by the person who claims adverse possession against the true owner. The fact that the person holds the property ashis own and in derogation of all other persons is sufficient to attract adverse possession and limitation. 23. Coming back to the evidence in this case, as already noticed, the burden is on the plaintiff to establish his claim. Except for saying that he is in possession for a long time, he has not produced any evidence in support of his claim. Since the plaintiff claims adverse possession and limitation, title of the defendant stands admitted. Any doubt in this regard has been repelled by paragraph 10 of the plaint. It is true that in the relief portion the relief is sought for only on the basis of possession. The relief is also claimed against Ext.B9 order passed by the Tahsildar. The plaintiff seeks to have it set aside. Ext.B9 is the order issued by the Tahsildar against the objection preferred by the plaintiff. It specifically states that the plaintiff did not produce any document to prove his possession. So his contentions were S.A. 810/1999. 22 overruled. The trial court found that the challenge against Ext.B9 is barred by limitation and the reliefs sought for in respect of that order cannot be granted. The result is that Ext.B9 stands. 24. One may now refer to the evidence of P.W.1. He speaks in terms of the plaint. He asserts that even though the suit property was brought to auction sale, and was sold, no possession was transferred to the auction purchaser. P.W.1 says that he had obtained loan from the Land Development Bank and planted cashew in the property. He would assert that the predecessor in interest of the defendant has not made any improvements in the property. P.W.1 says that his father told him that the suit properties were also included in the ceiling proceedings. Later, he goes on to say that they are not included in the Land Board Statement. He also claimed that basic tax for the property was being paid by him. 25. Even though all the above assertions are made by the plaintiff, he has not produced any single S.A. 810/1999. 23 document in support of his claim. If as a matter of fact the plaintiff was paying the basic tax, he would have receipts for the same. If he had availed of loan from the Bank, he would have documents to prove the said fact. Except Exts. A4, A5 and A6, which are letters said to have been written by the predecessor of the defendant to the plaintiff, no other documents were produced by the plaintiff to prove his possession. 26. Here, one may notice the documents produced by the defendants. He has produced Ext.B2, the title deed granted by the Government of Madras in respect of the property comprised in R.S. No.12/3 of Kannur Village. Ext. B3 is the partition deed dated 3.1.1953 wherein the entry regarding the suit property is seen made. The said document was executed by Sreenivasa Naik and others. Ext.B5 series is the basic tax receipts produced by the defendant. Exts. B6, B7, B8, B9 and B10 are proceedings of various authorities, which concerned with the plaint schedule properties. It is also interesting to note that the S.A. 810/1999. 24 defendant has produced Exts. B11 and B12 which clearly show that the plaint schedule property was the subject matter of ceiling proceedings against Sreenivasa Naik. 27. If as a matter of fact, the plaintiff was in possession of the property and was paying tax, he could have produced some documents like receipts, ceiling returns or something else to show his title over the suit property. On the other hand, the defendant has produced several documents to show his possession and right over the suit property. 28. At the risk of repetition, one may notice that the courts below were impressed by Exts.A4, A5 and A6 and jumped to the conclusion that since it is admitted that the possession of the property was with the family of the plaintiff, it follows that the auction purchaser had never obtained possession of the property in pursuance of the auction sale. One has to say that Exts.A4, A5 and A6 are not sufficient to come to such a conclusion. The appellate court simply followed the course adopted by the trial court. S.A. 810/1999. 25 Though appellate court referred to several other documents, there is no independent evaluation of the same. The lower appellate court has not addressed itself to the real issue that arises for consideration and as already stated, has simply based its conclusion on Exts.A4, A5 and A6. The lower appellate court has also omitted to note the significance of the finding of the court below that Ext.B9 cannot be set aside and has to stand. These vital aspects have been omitted to be noticed by the lower appellate court. 29. It is felt that a reconsideration of the issues involved in this case is necessary at the hands of the lower appellate court. In the result, this appeal is allowed, the judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the lower appellate court on 29.6.2010 and the lower appellate court may make every endeavour to dispose of the appeal S.A. 810/1999. 26 as expeditiously as possible, at any rate within a period of six months from the date of appearance of the parties before it. Office shall return the records to the lower appellate court forthwith. **P. BHAVADASAN, JUDGE** sb. S.A. 810/1999. 27 ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 810 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** **09.06.2010**