G. Purushothama Prasad v. G. Venkateshwara Bhat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940** **RSA.No. 224 of 2011** **AGAINST THE DECREE AND JUDGMENT DATED 22-10-2010 IN AS 154/2008 of DISTRICT COURT,KASARAGOD** **AGAINST THE DECREE AND JUDGMENT IN OS 15/2007 of SUB COURT, KASARAGOD DATED 31-10-2008** **- APPELLANT/APPELLANT IN A.S. PLAINTIFF IN SUIT:** **G.PURUSHOTHAMA PRASAD S/O.LATE VISHNU BHAT, DRAWING TEACHER, RESIDING AT UBRANGALA, KUMBDAJE VILLAGE, KASARAGOD TALUK, P.O.KUMBDAJE, KASARAGOD DISTRICT.** **BY ADVS. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN SRI.R.SURAJ KUMAR** **- - RESPONDENT IN R.S.A. RESPONDENT IN A.S. DEFENDANT IN SUIT: G.VENKATESHWARA BHAT S/O.LATE VISHNU BHAT, RESIDING AT THAMBU HOUSE, KUMBDAJE VILLAGE, KASARAGOD TALUK, P.O.YETHADKA, KASARAGOD DISTRICT, PIN-671 551.** **BY ADVS. SRI.R.JAIKRISHNA SRI.V.V.ASOKAN (SR.)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.No.224/2011 2 ## **JUDGMENT** A suit for getting possession of property dismissed by the Trial Court. It was confirmed in appeal by the First Appellate Court. There are two schedules to the plaint. A schedule is the landed property having an extent of 4.73 acres of land. B schedule is the building constructed therein. The plaintiff is the younger brother of defendant. The property was originally belonged to the family of plaintiff and the defendant. On 26/09/1960 a partition was entered into by the family members under Ext.B1 document, by which the plaint schedule property was allotted to the share of defendant. Subsequently, his mother gave birth to two sons, the plaintiff in the year 1962, another younger brother in the year 1965. So, the earlier partition entered into by the members of the family at the instance of mother was cancelled on 12/03/1970, by executing Ext.A10 cancellation deed in which defendant is a signatory and a consenting party. In furtherance of the R.S.A.No.224/2011 3 cancellation under Ext.A10, on the next day on 13/03/1970, a fresh partition was entered into under Ext.A1, by which the suit property was allotted to the plaintiff. Their father died in the year 1974. A tiled house was put up in that property in the year 1977-78. In the year 1980, the plaintiff attained majority. While so, the wife of defendant filed a suit in O.S.No.112/1986 alleging right over some other property based on a Testament/Will alleged to have been left out by the father of the defendant. It was found against by the Trial Court and confirmed in the first appeal under Ext.A2. The mother died in the year 1989. The plaintiff filed a suit in O.S.No.428/1989 before the Munsiff's Court for a mandatory injunction to eject the defendant from the B schedule house. It was decreed by Ext.B5 judgment and the appeal was also dismissed. But, in second appeal it was reversed under Ext.A3 judgment and ultimately the suit ended in dismissal on 12/10/2006. It is thereafter the instant suit was filed on 28/2/2007 for getting R.S.A.No.224/2011 4 possession of A schedule property and for declaration of title and recovery of B schedule building. The questions came up for consideration are: 1) Whether a pleading of adverse possession raised in an earlier suit by way of written statement when found to be not tenable, would it be permissible for a fresh period of limitation and adverse possession from the date of submission of written statement ? What would be the legal position if no such fresh period was not specifically advanced in the written statement earlier submitted ? 2) When an earlier partition was cancelled by another document, what would be legal character of property divested exclusively to the sharers in the earlier partition, who are signatory and consenting parties to the subsequent cancellation ? R.S.A.No.224/2011 5 3) Whether the exclusive possession diverted under the earlier partition to the sharers would acquire the character of co-ownership possession by the conduct of cancellation of earlier partition consented by all parties ? 4) What would be effect of a subsequent partition entered into in the absence of a challenge by any of the sharers ? 5) Is it permissible to claim adverse possession based on the diversion of exclusive possession to sharers under an earlier partition, after its cancellation and what would be legal position regarding the separation of right under a subsequent partition by bringing the property into the common estate of all sharers ? 6) Whether the trial court and the first appellate court are justified in R.S.A.No.224/2011 6 dismissing the suit finding adverse possession claimed by the defendant ? 2. Two contentions were raised, one is based on adverse possession and limitation from 1960 onwards from the date of Ext.B1 partition deed. The second contention raised is also by way of adverse possession and limitation from the date of submission of Ext.B4 written statement dated 6.7.1990 in an earlier suit in O.S.No.428/1989. The instant suit was filed only in the year 2007 after the lapse of long period of 12 years from 6.7.1990. 3. The pleading raised in the earlier suit under Ext.B4 written statement regarding adverse possession, nothing mentioned with respect to any animus to hold the property from the date of submission of written statement or from 6.7.1990, the date on which Ext.B4 written statement was submitted. What is pleaded in Ext.B4 written statement is adverse possession and limitation from 1960 onwards based on Ext.B1 earlier partition of the year 1960. The pleading in Ext.B4 written statement is to the effect that from 26.9.1960, R.S.A.No.224/2011 7 the date on which earlier partition, the defendants have been open, exclusive continuous and peaceful possession of property as against the plaintiff. The relevant portion of pleading in Ext.B4 written statement extracted below for reference : “ _In this family, there was a registered partition deed dated 26-9-1960 ( Document No.1912/1960 of S.R.O. Kasargod). The properties described in schedule B of this partition deed were set apart to the share of the defendant. Among other items of properties R.S.No.188-2C, 189-2B and 189-4B of Kumbdaje village are comprised in schedule 'B' of this partition deed. Ever since the date of this partition deed, R.S.188-2C, 189-2B and 1894B have been in the open, exclusive continuous and peaceful possession of the defendant adversely to the plaintiff. The defendant has been in possession of these properties by asserting his exclusive title to them. By virtue of this possession, the plaintiffs title to these properties is lost by adverse possession and limitation. The defendant has acquired a perfect title to these properties by adverse possession.”_ 4. The adverse possession claimed in Ext.B4 written statement is from the date of earlier partition of the year 1960. It is admitted in the instant suit that the earlier partition was cancelled on 12.3.1970 by executing Ext.A10 cancellation deed in which the defendant is a signatory and consenting party. A R.S.A.No.224/2011 8 subsequent partition was entered into on the next day 13.3.1970 under Ext.A1 by which the property covered by the earlier partition deed of the year 1960 ( Ext.B1) brought back to the common estate of co-owners by its cancellation under Ext.A10 cancellation and a fresh partition under Ext.A1. This has been done on account of birth of plaintiff and another younger child to their mother subsequent to Ext.B1 partition of the year 1960. In Ext.A10 cancellation the defendant is a signatory and a consenting party. No challenge was raised either to Ext.A10 cancellation or to execution of a fresh partition under Ext.A1 in the year 1970. It is true that the properties diverted as exclusive property of sharers under Ext.B1 partition of the year 1960 was altered with consent by a registered document Ext.A10 cancellation and a fresh partition Ext.A1 executed in the year 1970, by which a fresh division of property/ partition effected inclusive of two children born subsequently to their mother. There is no challenge with respect to either Ext.A10 cancellation or Ext.A1 fresh partition of the year 1970. It amounts to admission of alteration of possession of property R.S.A.No.224/2011 9 obtained by the defendant under Ext.B1 partition of the year 1960 by its cancellation in the year 1970 and execution of a fresh partition in the same year on the next day. Thereafter the possession if any obtained by any of the sharers under Ext.B1 partition of the year 1960 were brought back to the common ownership and a fresh partition was effected giving shares to different sharers. The parties are bound by the fresh partition and the cancellation, Ext.A1 and Ext.A10. Earlier possession held based on Ext.B1 partition of the year altered into a possession by a co-owner from that of exclusive possession to a sharer. So the documents entered into, executed by the defendant - Ext.A10 and subsequent partition - Ext.A1 would show that the earlier exclusive possession had already converted into possession by a co-owner for and on behalf of all co-owners and unless there is clear ouster, there cannot be any adverse possession or limitation. No ouster either pleaded or let in evidence. The adverse title claimed based on possession of property in furtherance of Ext.B1 partition of the year 1960 will not stand. R.S.A.No.224/2011 10 5. The next contention raised is that from the date of submission of Ext.B4 written statement in the earlier suit, it has to be presumed that the defendant is in open, peaceful possession adverse to the plaintiff . In the instant case it is claimed that the written statement was submitted on 6/7/1990 and hence it has to be presumed that atleast from that date onwards the defendant is in possession of the property adverse to the interest of the plaintiff. What is pleaded in Ext.B4 written statement as extracted above is clear and unambiguous. Adverse possession was claimed based on Ext.B1 partition deed of the year 1960 diverting to exclusive possession from co-ownership possession. As discussed earlier, by cancellation under Ext.A10 and fresh partition under Ext.A1, that possession was altered into a co-ownership possession and properties were brought back to the common estate of co-owners. Commencement of any fresh period of limitation based on any ouster not claimed anywhere in the written statement either by raising any specific pleading that from the date of written statement the defendant had began to hold the property adverse to the R.S.A.No.224/2011 11 interest of plaintiff or by specifying any particular date or period based on ouster. No pleading of ouster either brought out, let in evidence or even pleaded in Ext.B4 written statement. Since the possession starts as a possession of co-owner by virtue of cancellation under Ext.A10, no adverse title can be claimed unless there is clear ouster. 6. Then comes to the question whether the written statement Ext.B4 would constitute an ouster in view of the pleading raised therein, giving a cause of action for recovery of possession by the other co-owner, the plaintiff. As already discussed, the pleading in Ext.B4 will not constitute any adverse possession as it starts from 1960 onwards based on Ext.B1 partition of the year 1960. In the written statement, there is no pleading that the said possession was subsequently altered into a co-ownership possession had been subjected to any further change exercising the animus to hold the property in derogation of rightful owner, the plaintiff. In fact, the division of property took place and diversion of possession was effected inclusive of plaintiff under Ext.A1 partition deed of R.S.A.No.224/2011 12 the year 1970 which was executed on the next day of Ext.A10 cancellation of earlier Ext.B1 partition of the year 1960 and the defendant is bound by the said cancellation and fresh partition. The defendant did not have any case that he is holding possession of the property adverse to the interest of plaintiff either from the date of cancellation - Ext.A10 - 12.3.1970 or from the date of fresh partition -13-3-1970 or any day subsequent to 13.3.1970. No such case advanced anywhere in Ext.B4 written statement and hence the date of submission of written statement pales in insignificance, not relevant. 7. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to anothers title. One who holds possession on behalf of another, does not by mere denial of that others title make his possession adverse as to give himself the benefit of the statute of the limitation ( see the decision **Annasaheb Bapusaheb Patil v. Balwant [(1995) 2 SCC 543]** . It is R.S.A.No.224/2011 13 squarely applicable in the instant case as what he had pleaded in Ext.B4 written statement is clearly referring to the title and holds the property as the co-owner for the benefit of other co-owners. Once it was found to be permissive possession held by a coowner, there cannot be any adverse possession unless an ouster pleaded and established. No ouster pleaded in the instant case and no pleading raised which would satisfy an ouster. On the other hand, the possession held by the defendant being a permissive one possessed as a co-owner, a mere submission of written statement in an earlier proceeding without disclosing an ouster will not satisfy the benefit of limitation and the written statement so submitted and when the pleading found to be not sufficient to bring up the benefit of limitation, it has no use in a subsequent suit and it will not satisfy or act as an act of ouster. 8. The learned counsel for the appellant relied on the decision drawn in **Dagathabhai v. Abbas [ 2017 2 KLT 2077 (SC)]** so as to advance a case that the respondent must admit the ownership of property with the plaintiff, then only can claim the existence of R.S.A.No.224/2011 14 animus to hold the property in derogation of the true owner by referring paragraphs 21 and 22 of the said judgment. 9. The Apex Court had laid down as to what actually constitutes adverse possession in **Hemaji** ## **Waghaji Jat v. Bhikhabhai Khengarbhai Harijan [ 2008** **(4) KLT 357 (SC)]** in the following lines : “ The law of adverse possession which ousts 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 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 in substance would mean that the law gives seal 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 dishonestly by legitimizing possession of a rank trespasser and R.S.A.No.224/2011 15 compelling the owner to loose its possession only because of his inaction in taking back the possession within limitation. 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. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse 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 well-settled 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 disposition of the R.S.A.No.224/2011 16 rightful owner and be actual, visible, exclusive,hostile and continued over the statutory period.” 10. The decision relied on by the learned counsel for respondent drawn by the Apex Court in **Desh Raj and Others v. Bhagavath Ram ( Dead) by Lrs. & Ors.** on 20[th] February, 2007 is really standing on a different footing as the dispute involved in that suit is with respect to two suits and one is of the year 1968 in which a prayer for partition and separate possession was claimed. It was dismissed in 1977. Another suit is of the year 1978 filed for the very same purpose which was dismissed in the year 1984. In both the suits, the question of partition and separate possession was directly and substantially in issue. A third suit was filed in the year 1986 for declaration of title and also for permanent injunction. In that case, the ingredient which constitutes adverse possession and plea of ouster was raised. It is really resting on another footing and hence it will not in any way improve the case of the respondent. 11. The decision drawn in **Ganghadharan P.K. and** R.S.A.No.224/2011 17 ## **Others v. Vallikunnam H.M.I. Vividhoddesa Sahakarana** **Sanghom and Others (2014 KHC 3050)** is really dealing with the question of application of Section 14 of the Limitation Act in reference to Article 65 of that Act and the essential requirement for the application of Section 14 of the Limitation Act. 12. The Apex Court had laid down the legal position in **Bangalore Development Authority v. Jayamma [2016 (2)** **KLT 2042 (SC]),** what actually constitutes adverse possession. The classical requirement _Nec vi Nec Clam Nec precario_ and completion of 12 year period should be established. The Apex Court has emphasised the importance of 'animus possidendi' in **Saroop Singh v.** **Banto [ 2005 (8) SCC 330]** . It is also settled that the starting point of limitation as per Article 65 commences from the date on which the possession of defendant became adverse and not from the date on which right of ownership acquired by the plaintiff **( Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak** **( 2004 (3) SCC 376)]** . The animus possidendi should be open and it should be capable of giving notice to the lawful owner. It is also settled in **Mohd. Mohd. Ali v.** R.S.A.No.224/2011 18 **Jagadish Kalita [( 2004) 1 SCC 371]** that unless the ingredient which constitutes animus possidendi, there cannot be any adverse possession. 13. From the discussion, it is clear that neither the First Appellate Court nor the trial court applied the legal position settled in various decisions regarding the benefit of limitation under Article 65 of Limitation Act in its correct perspective and it has resulted in miscarriage of justice and hence liable to be set aside. I do so. The appeal is allowed. The decree and judgment of both the trial court and the First Appellate Court are set aside. The suit is decreed allowing the plaintiff to recover possession of plaint A schedule property having an extent of 4.73 Acres and the B schedule building thereon from the defendant. The parties are directed to suffer their respective costs of suit, first appeal and this appeal. ## **P.SOMARAJAN, JUDGE** sv