K. Radhakrishnan v. Leelavathy

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 7[TH] DAY OF APRIL 2022 / 17TH CHAITHRA, 1944 RSA NO. 9 OF 2012 ``` ``` AGAINST THE JUDGMENT DATED 22.09.2011 IN AS 4/2006 OF SUB COURT,KOCHI JUDGMENT IN OS 48/2005 OF MUNSIFF’S COURT, KOCHI ``` ## **`APPELLANT/RESPONDENT/DEFENDANT:`** ``` K.RADHAKRISHNAN S/O.LATE KASTHIRVELU, RESIDING AT HOUSE NO.X/1023, AMARAVATHY, FORT KOCHI-682 001. ``` ``` BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.C.MURALIKRISHNAN (PAYYANUR) ``` ## **`RESPONDENT/APPELLANT/PLAINTIFF:`** ``` LEELAVATHY D/O.LATE KATHIRVELU AND W/O.N.PARTHASARATHY, XI/151, “LEKSHMI NIVAS”, THAMARAKKULAM ROAD, AMARAVATHY, FORT KOCHI, KERALA-682 001. ``` ``` BY ADVS.SRI.S.M.PRASANTH SRI.K.RAMAKUMAR SR. SMT.SMITHA GEORGE ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON ``` ``` 07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.S.A.No.9 of 2012 2 ## **JUDGMENT** The defendant in O.S.No.48 of 2005 on the file of the Munsiff’s Court, Kochi is the appellant. The defendant challenges the decree and judgment dated 22.09.2011 passed by the Sub Court, Kochi in A.S.No.4 of 2006, which arose from the original suit. The plaintiff is the respondent. 2. Material facts relevant for the adjudication of this appeal are as follows:- 2.1 The plaintiff and defendant are siblings. The plaint schedule property originally belonged to Sri.Sivananja Perumal, the grandfather of the parties, who acquired right over it as per release deed No.140/1916 of Kochi S.R.O. After his death, his son Sri.Kathirvelu possessed and enjoyed the property throughout his lifetime. After the death of Sri.Kathirvelu in 1965, the property devolved upon Smt.Muthu, the mother of the parties and her children. In 1974, as per partition deed No.738/74 of Kochi S.R.O., the properties, including the plaint schedule property, were partitioned. The respective sharers took possession of their shares. The plaintiff R.S.A.No.9 of 2012 3 was party No.7 in the partition deed. The property described in schedule ‘G’ of the partition deed was allotted to the plaintiff. Item No.2 in ‘G’ schedule in the partition deed is the plaint schedule property. After the partition, the plaintiff became the absolute owner in possession of the property. It is wetland. The fields adjoining the plaint schedule property are owned by the brothers and sisters of the plaintiff, including the defendant. The total extent of the land is 1 acre 90 cents. Since 1985 onwards, Kalatharachira padasekharam Samithi has been conducting fish and prawn farming operations in the wetland, including the plaint schedule property, with the permission of the plaintiff and other owners of the land. The plaintiff had entrusted the responsibility to collect the income and profit from the property with the defendant. The defendant promptly paid income from the property to the plaintiff till 2001. In 2002, the plaintiff decided to collect the amount directly from the Padasekhara Samithi. Thereafter, the defendant had been living in inimical terms with the plaintiff. The defendant made a claim that he was the absolute owner of the entire extent of 1 acre 90 cents. On the bonafide apprehension that the defendant would R.S.A.No.9 of 2012 4 trespass into the property, the plaintiff instituted the original suit for a permanent prohibitory injunction. 2.2 The defendant resisted the suit inter alia contending that he has perfected title over the plaint schedule property by way of adverse possession. According to the defendant, the plaintiff has no title or possession over the property. She has no cause of action to institute a suit. The derivation of title of the plaint schedule property as narrated in the plaint is true. The defendant pleaded that after the death of Sri.Kathirvelu the entire 1 acre 90 cents of property was possessed, cultivated and looked after by him. The defendant denied the claim of the plaintiff that after the demise of Sri.Kathirvelu, his children became co-owners. It was the defendant who made improvements in the property. The defendant admitted the execution of the partition deed in 1974, but he pleaded that the partition deed was only a paper transaction to wriggle out from the rigor of Government Order under the Kerala Land Utilization Order 1967. Neither the plaintiff nor the other sharers of the property, excluding the defendant, ever stepped into the paddy field during the lifetime of Karthivelu and after his demise. Right from 1.1.1986, the R.S.A.No.9 of 2012 5 defendant is holding the field in exclusion of all others and thereby, he has perfected title over the same by way of adverse possession. 3. The parties went to trial. During the trial, PW1 was examined and Exts.A1 & A2 were marked on the side of the plaintiff. DWs 1 to 4 were examined and Exts.B1 to B15 were marked on the side of the defendant. 4. The Trial Court held that the defendant perfected the title in respect of the plaint schedule property by way of adverse possession. Therefore, the Trial Court dismissed the suit. The plaintiff challenged the decree and judgment of the Trial Court in A.S.No.4/2006. The First Appellate Court reversed the findings of the Trial Court and decreed the suit granting a permanent prohibitory injunction against the defendant. The defendant is in appeal before this Court under Section 100 of the Code of Civil Procedure. 5. After hearing both sides, this Court reformulated the substantial questions of law as follows:- - (i) Whether the First Appellate Court misconstrued the pleadings and evidence in holding that the defendant failed to establish title over the property by way of adverse possession. R.S.A.No.9 of 2012 6 - (ii) Has the First Appellate Court drawn the necessary inferences and presumptions that would apply on the facts and circumstances of this case ? 6. Heard Sri.Murali Krishnan, the learned counsel appearing for the appellant/defendant and Smt.Aswini, the learned counsel for the respondent/plaintiff. 7. The case of the plaintiff is that the plaint schedule property originally belonged to her Tharavadu, and the same remained in the possession of her father during his lifetime, and after his death, the property devolved upon her mother and other children, including the defendant. The plaintiff pleaded that she had been in possession and enjoyment of the property as a co-owner. According to the plaintiff, as per Ext.A1 partition deed (partition deed No.738/1974) the joint ownership and possession were severed and respective shares were put in possession of the sharers. 8. The challenge of the defendant is that though the parties executed Ext.A1 partition deed it was not intended to be acted upon as it was created to escape from the rigor contained in the Kerala Land Utilization Order 1967. The defendant put up a claim that he has been in possession of the property in R.S.A.No.9 of 2012 7 exclusion of the other sharers, including the plaintiff, with effect from 1.1.1986 and that he has perfected title after the statutory period by way of adverse possession. Ext.A1 is the partition deed of 1974, the genuineness of which is not under challenge. Ext.A1 is a registered partition deed that carries the presumption that it is genuinely executed. In Ext.A1 there is a specific recital that the sharers, including the plaintiff, obtained separate possession over the respective shares. The plaintiff gave oral evidence as PW1 in support of her pleadings that she had taken possession of the property with effect from the date of execution of Ext.A1 and she continued to be in possession of the same. PW1 further deposed that as she was away from home, she had entrusted the property to the defendant to manage by giving it to the Padaseskhara Samithi for fish and prawn farming operation. According to PW1, she had been getting income from the Padasekhara Samithi through the defendant till 2001, and thereafter, she decided to collect the dues directly from the Padasekhara Samithi. The case of PW1 is that on the representation made by her, Padasekhara Samithi gave the amount due to her directly. R.S.A.No.9 of 2012 8 9. DW1, the defendant adduced evidence in tune with his pleadings. He admitted the contents of Ext.A1. DW1 further admitted that the plaintiff had demanded the amount due to her from the Padasekhara Samithi in 1994. DW1 deposed that his possession over the plaint schedule property was in exclusion of the plaintiff. In support of his case DWs 2 to 4 were examined. It has come out that they had no personal knowledge about the ownership etc. of the property. The First Appellate Court disbelieved those witnesses. The defendant made an attempt to establish that Ext.A1 was executed not with an intent to effect a partition in the plaint schedule property but for the purpose of overcoming the rider contained in the Kerala Land Utilization Order 1967. But, he failed to adduce cogent and convincing evidence to establish that the parties did not intend to execute a partition deed in respect of the properties, and it was made to escape from the rigor contained in the Kerala Land Utilization Order 1967. The oral evidence of the plaintiff and the admission of the defendant corroborated by Ext.A1 lead to the conclusion that the parties in the suit and other sharers executed a partition deed with the definite R.S.A.No.9 of 2012 9 intention of putting the separate shares in the exclusive possession of the respective sharers. 10. Now, I turn to/deal with the claim of the defendant based on the principle of adverse possession. The concept of adverse possession in India is fundamentally based on three principles. Firstly, competing rights of ownership between the actual owner and the person taking care of the land. Right of the person who takes care of the land and makes the highest and best use of the land will prevail over the actual title holder of the land who does not take care of the land. In other words, the person who maintains and makes the best use of the land has a better title over the land than the person who is not bothered about the land at all. Secondly, the title of the land should not be kept in abeyance for a long time, that is, a situation should not arise in which the titleholder of the land is not known. Thirdly, it is presumed that the actual titleholder has abandoned his possessory rights, despite knowing that some other person is claiming hostile possession over his land, but he chooses to keep quiet and not take any action against the said person as provided under the law. R.S.A.No.9 of 2012 10 ## 11. 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.” ## 12. 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 Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. " ## 13. In **Nair Service Society** v **Rev.Father K.C.** **Alexander (AIR 1968 SC 1165)** a three judge of the Apex Court upheld the principles declared in **Perry** v **Clissold** (supra). The term adverse possession is not defined anywhere in the relevant statutes. 14. In a case of adverse possession of land, two aspects are important. Firstly, the nature of possession of land R.S.A.No.9 of 2012 11 should be exclusive, continuous, uninterrupted and it should be actual physical possession and not merely constructive possession over the land. Secondly, the possession should be hostile to the actual owner. The requisite ingredient of animus possidendi (intention to possess) should be present when claiming ownership by taking the plea of adverse possession. 15. In **Karnataka Board of Wakf** v. **Government** **of India & Others [(2004) 10 SCC 779]** , the Apex Court considered the nature and acts amounting to adverse possession and held thus: “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 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 dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.” ## 16. In **P.T. Munichikkanna Reddy & Others** v. ## **Revamma & Ors [(2007) 6 SCC 59]** , while dealing with the R.S.A.No.9 of 2012 12 ## concept of adverse possession, the Honourable Apex Court held thus: “Therefore, to assess a claim of adverse possession, twopronged 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 intention in the upkeep of the property.” ## 17. 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. 18. The evidence in this case based on the pleadings of the defendant relating to adverse possession is to be appreciated in the backdrop of the principles discussed above. The learned counsel for the appellant/defendant relied on Ext.B1 notice to substantiate that the plaintiff had admitted R.S.A.No.9 of 2012 13 exclusive possession of the property by the defendant. Ext.B1 is a lawyer’s notice caused to be issued at the instruction of the plaintiff and others wherein it was mentioned that the defendant was in possession of the properties of the family. Based on Ext.B1, a suit was instituted as O.S.No.219 of 1987 in which the defendant was a party (defendant). The plaint schedule property was not a subject matter of the suit instituted based on Ext.B1 notice. DW1, while giving evidence, admitted that the properties covered by Ext.A1 were not included in the subject matter of O.S.No.219/1987. 19. The pleadings of PW1, the plaintiff and her oral evidence convincingly establish that the plaintiff had entrusted the defendant to manage the property as she was away from home and collect the income for and on behalf of her. In such a circumstance, the defendant became a constructive trustee for the plaintiff. The possession of the defendant can only be treated as permissive. The defendant failed to establish that he had assumed the character of owner and exercised positively the rights of ownership against the true owner, the plaintiff. He has failed to establish that his possession over the property was exclusive, continuous, uninterrupted and that it was actual R.S.A.No.9 of 2012 14 physical possession. He has also failed to establish that his possession was hostile to the plaintiff. The defendant miserably failed to establish the requisite ingredients of _animus possidendi_ . In the pleadings and evidence, there is nothing to show that specific positive intention to dispossess the plaintiff was there on the part of the defendant. The positive act of wrongful dispossession of the plaintiff is absent in the evidence. 20. The defendant also set up a case that partition was actually not effected. What is implicit in this pleading is that the parties were co-owners in respect of the properties and right from 1.1.1986 he had started exercising hostile possession over the property. If the claim of the defendant is viewed based on this pleading, he should establish ouster as against the plaintiff. There is a basic distinction between adverse possession as amongst strangers and ouster and exclusion of co-owners. In the case of adverse possession against strangers, it is sufficient that the adverse possession is overt and without any attempt at concealment so that the person against whom time is running out, with the exercise of due diligence, to be aware of what is happening. But, in the case of co-owners, the burden is heavy on the person claiming right by R.S.A.No.9 of 2012 15 adverse possession and limitation to establish ouster of the coowner so as to exclude him from possession. The Apex Court has settled this principle in **P.Lakshmi Reddy** v. **L.Lakshmi Reddy (AIR 1957 SC 314)** as follows:- “But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing coheir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The coheir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See: _Cores_ v. _Appuhamy_ [(1912) AC 230] ). It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in _N.Varada Pillai_ v. _Jeevarathnammal_ [AIR 1919 PC 44, 47] quotes, apparently with approval, a passage from _Culley_ v. _Deod Taylerson_ [3 P & D 539 : 52 RR 566] which indicates that such a situation may well lead to an inference of ouster “if other circumstances concur”. (See also _Govindrao_ v. _Rajabai_ [AIR 1931 PC 48] ). It may be further mentioned that it is well-settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.” R.S.A.No.9 of 2012 16 ## 21. In **Vidya Devi @ Vidya Vati (Dead) By Lrs** v. **Prem Praksah & Others [(1995) 4 SCC 496]** the Apex Court had enumerated the three elements for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. 22. In the case on hand, the defendant has not succeeded in establishing his claim of adverse possession against the plaintiff in the touchstone of the principles discussed above. On the other hand, the plaintiff could establish her title and possession over the property. There is evidence of threatened invasion on the right of the plaintiff over the plaint schedule property. Therefore, she has established the ingredients to get the relief of injunction. The First Appellate Court carefully re-appreciated the entire materials and came to the conclusion that the plaintiff is entitled to the prohibitory injunction as prayed for in respect of the plaint schedule property. The Court below has correctly appreciated the pleadings and evidence and drawn necessary inferences and presumptions on the facts and circumstances of R.S.A.No.9 of 2012 17 the case. The substantial questions of law are answered accordingly against the appellant/defendant. The judgment and decree passed by the First Appellate Court require no interference. The Regular Second Appeal is therefore dismissed. The parties are directed to bear their respective costs. Sd/- **K.BABU Judge** TKS