Joseph Antony v. Annie Kaushal and Alice Kaushal

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.V.N.BHATTI TUESDAY, THE 20[TH] DAY OF JUNE 2023 / 30TH JYAISHTA, 1945 ``` ``` SA NO. 49OF 2003 ``` ``` AGAINST THE JUDGMENT IN OS 277/1998 OF MUNSIFF COURT, PALA ``` ``` AS 69/2000 OF SUB COURT, PALA ``` ## **`APPELLANT/APPELLANT/PLAINTIFF:`** ``` JOSEPH ANTONY, S/O.JOSEPH,AGED 65 YEARS, RESIDING AT NADACKALATHAZHE HOUSE, LALAM KARA, LALAM VILLAE, PALA MUNICIPALITY,, MEENACHIL TALUK. ``` ``` BY ADV SRI.P.C.HARIDAS ``` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS:`** ``` 1 ANNIE KAUSHAL, D/O. JOSEPH A.17, NOPHA, NAVY NAGAR, BOMBAY 400 005 FROM NADACKALATHAZHE HOUSE, LALAN KARA, LALAN VILLAGE. 2 ALICE KAUSHAL D/O. JOSEPH 13 WINHILMINA, JASMANIC AUSTRALIA, FROM NADACKALATHAZHE HOUSE, LALAN KARA, LALAN VILLAGE. BY ADVS. SRI.N.HARIDAS SRI.P.N.SASIDHARAN ``` ## **`OTHER PRESENT:`** ``` Antony Mathew- R1 and R2 ``` ``` THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **S.A.No.49 of 2003** **2** ## **JUDGMENT** Dated this the 20[th] day of June 2023 The appellant is the plaintiff in O.S.No.277 of 1998 before the Court of Munsiff, Pala. The second appeal arises from the confirming judgment in A.S.No.69 of 2000 of the Court of the Subordinate Judge, Pala, dated 31.08.2000. The substantial question of law, stated for consideration and the second appeal admitted, is as follows: “1. Are the courts below justified in law in refusing the value of improvements for the reason that the appellant is a trespasser especially when it is found that possession was found to be permissible for the purpose of deciding the question of adverse possession?” 2. To appreciate whether the appellant has made out the substantial question of law within the scope of section 100 of the Code of Civil Procedure, a few of the averments on which the parties have joined issues before the trial court and the appellate court are adverted to. **S.A.No.49 of 2003** **3** 3. The appellant has filed O.S.No.277 of 1998 to declare his title for the plaint schedule property, and the declaratory relief is based on adverse possession claimed by the plaintiff. 4. The gist of the plaintiff’s case is that Joseph purchased the plaint schedule immovable property through sale deed No.653/1965. Plaintiff and Joseph are brothers. Joseph went abroad for avocation or livelihood, and the plaint schedule was abandoned. The plaintiff claims that in 1966, the plaintiff entered the possession and started cultivating the plaint schedule. The plaintiff claims to have resisted Joseph's attempts to share profits or repossess the plaint schedule. Thus, continued possession from 1966 till the date of filing the suit has ripened into adverse possession, deriving title by prescription. The defendants, Joseph’s daughters, are aware of these circumstances. The defendants since are trying to trespass into the plaint schedule, the suit was filed for the relief prayed. 5. The defendants, who are none other than the daughters of Joseph, filed the written statement and have resisted the **S.A.No.49 of 2003** **4** plaintiff’s claim for the relief of declaration of title by prescription. The plaint schedule, it is incorrect to allege, was abandoned or remained uncultivated. The entry of the plaintiff and carrying on the agricultural operations in the plaint schedule and the improvements are categorically denied. The defendants continue to possess the property as daughters of Joseph. The plaint schedule has been in Joseph’s possession, and the defendants are in possession after his demise. 6. The trial court on the averments framed the following issues: “1) Whether the plaintiff has perfected his title by adverse possession? - 2) Whether the defendants have title and possession over the plaint schedule property? - 3) Whether the plaintiff is entitled to the injunction order as prayed for? - 4) Whether the plaintiff has cause of action? - 5) Reliefs and costs?” 7. On issue No.1, the trial court has held that the plaintiff has not perfected his title by adverse possession. The issue is **S.A.No.49 of 2003** **5** answered against the plaintiff and in favour of the defendants. In answering issue No.2, the trial court accepted that the defendants have title to the property as the successors-in-interest of the original owner. The trial court has answered that the defendants did not lose their possession applying the principle ‘possession follows title’. Accordingly, the other issues are also answered against the plaintiff. The suit was dismissed by judgment dated 31.08.2000. The plaintiff filed A.S.No.69 of 2000, and the appellate court has confirmed the findings. Hence the second appeal. 8. Advocate P.C. Haridas, while arguing on the substantial question framed in the second appeal, contends that the possession established by the plaintiff is by the pleading in the plaint, which the trial court and the appellate court did not appreciate. To illustrate his argument, he invites the court's attention to the pleading that the respondents' predecessor-ininterest was admittedly staying abroad. The plaint schedule was abandoned and remained vacant, not having the possession with owner, much less any person. The plaintiff has been continuously **S.A.No.49 of 2003** **6** in possession of the property, and the possession is established by the oral evidence of PW1 and supported by the evidence of PWs 2 and 3. The documents, namely Exhibit A1 to A4, demonstrate the land tax paid by the plaintiff for the plaint schedule. The findings now recorded by the trial or appellate court are completely in ignorance of the evidence. Therefore, as a first argument supporting all the substantial questions, learned counsel urges that the findings are recorded without appreciating the very evidence on which the plaintiff proves the claim of adverse possession. Therefore, the findings, even concurrent, are not binding on this court. He commends to the court for appreciating the evidence and reversing the findings. 9. Secondly, it is argued that the defendants rely on Exhibit B1 letter dated 20.10.1985 to establish that the adverse possession or ouster pleaded by the plaintiff is incorrect. The objection to Exhibit B1 is that Exhibit B1, from any standard, is secondary evidence. The reliance on Exhibit B1 without complying with the requirements of section 65 of the Indian Evidence Act, 1872 is **S.A.No.49 of 2003** **7** vitiated. Therefore, any observation favouring the respondents is, _per se,_ illegal. For these two arguments, the learned counsel commends to the court to accept the substantial question and allow the appeal. 10. Advocate Antony Mathew appearing for respondents, would urge that the appellant’s plea has two facets. Firstly, the acquisition of title by adverse possession commencing from 1968 and secondly, ouster. By inviting the attention of this court to each one of the findings recorded by the trial court, it is argued that none of the questions now formulated for consideration by this court would come within the scope of section 100 of the Code of Civil Procedure. 11. To establish either of these two facets viz. adverse possession and ouster, the requirement of law is appreciated both by the trial and the appellate courts and rejected the case of the plaintiff. The findings of fact do not come under the scope of section 100 of the Code of Civil Procedure. He prays for dismissing the appeal. **S.A.No.49 of 2003** **8** 12. The concept of adverse possession contemplates a hostile possession, i.e., a possession which is expressly or impliedly in denial of the title of the owner. Possession to be adverse must be possessed by a person who does not acknowledge the others’ rights but denies them. A person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the actual owner and amounted to a denial of his title to the property claimed. For deciding whether the alleged acts of a person constitute adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in the wrong and is aimed against the right. A person is said to hold the property adversely to the actual owner when that person, in denial of the owner’s right, excludes him from enjoying his property. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tensed to extinguish that person’s title. Possession is not considered adverse if it can be referred to as a lawful title. Where a person possesses property in a manner in which he is not entitled to **S.A.No.49 of 2003** **9** possess it and without anything to show that he possesses it otherwise than an owner, he is in adverse possession of the property. Therefore, it is the basic principle of the law of adverse possession that (a) It is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner; (b) It is possession inconsistent with the title of the true owner. Possession to be adverse must be possessed by a person who does not acknowledge the others’ rights but denies them. In other words, _nec vi, nec clam, nec precario_ . These are broad tests on which the plea of adverse possession is examined. 13. Similarly, in order that the co-owners possession may be adverse to others, there should be an ouster or something equivalent to it. “Ouster does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Three elements are necessary for establishing the plea of ouster in the case of a co-owner. They are **S.A.No.49 of 2003** ## **10** (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of the right of exclusive ownership openly and to the knowledge of other co-owners. Thus, a co-owner can, under law, claim title by adverse possession against another co-owner who can, of course, file an appropriate suit, including a suit for joint possession within the time prescribed by the law. 14. I have noted the evidence adduced by the plaintiff for claiming the title on adverse possession or ouster. The plea of ouster does not fit into the main plea of the plaintiff. The plaintiff is not a co-owner but claims to be in possession of Joseph’s property. 15. The plaintiff’s case is one for declaration of title based on adverse possession. Adverse possession is claimed based on continuous possession from 1968 until the date the suit was filed. Keeping the pleadings aside, I examine the evidence of PW1. It is naturally expected that PW1 speaks on what has been stated in the plaint. On a self-serving statement or assertion, it cannot be expected that a party establishes the claim of adverse possession **S.A.No.49 of 2003** **11** of immovable property before a court of law. 16. Coming to the evidence of PWs 2 and 3, the trial court has considered the veracity of the oral evidence of PWs 2 and 3. The consideration of the trial court on the oral evidence of PWs 2 and 3 is incorrect. Having come to court, the plaintiff must establish adverse possession strictly as has been in line with _nec vi, nec clam, nec precario._ On perusing the findings, I am of the view that the courts below have considered the case pleaded by the plaintiff from the evidence on record and have correctly nonsuited the plaintiff. The question, as framed, does not come within the scope of section 100 and is not a substantial question at all. 17. The secondary evidence said to have been relied upon by the trial court in judgment is yet another point on which the learned counsel for the appellant advances a forceful argument. Firstly, the suit is one for declaration of title. It is fairly settled that the plaintiff in a suit for declaration ought not to rely on the weakness in the defendants’ case. **12** ## **S.A.No.49 of 2003** 18. **State Bank of India v. S.N. Goyal - (2008) 8 SCC 92** relies on the proposition that it does not come under any of the tests laid down by the Supreme Court in the reported judgment. After appreciating the evidence, it has been found that the plaintiff has failed to prove the case as pleaded. Therefore, the ancillary argument now advanced before this court has no force to accept the substantial question framed in the second appeal. The second appeal fails and is dismissed. No order as to costs. **==> picture [21 x 11] intentionally omitted <==** **S. V. N. Bhatti Chief Justice** **vpv** //true copy// P.A. to Judge