K. Sukumaran v. Ambika and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 3RD DAY OF JANUARY 2014/13TH POUSHA, 1935** ## **RSA.No. 835 of 2013 ()** **----------------------------------AGAINST THE JUDGMENT IN AS 136/2006 of I ADDL.DISTRICT COURT, KOLLAM DATED 19-12-2012** **AGAINST THE JUDGMENT IN OS 1/2000 of PRL.MUNSIFF COURT, KOLLAM DATED 10-04-2006** ## **APPELLANT(S)/PLAINTIFF:** **--------------------------------------------** **K.SUKUMARAN, AGED 78 YEARS S/O.LATE KRISHNAN, KAYITHENGIL, MEENATHU CHERRY SAKTHIKULANGARA VILLAGE, KOLLAM.** **BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V.** **SRI.GOVIND PADMANABHAN** ## **RESPONDENT(S)/RESPONDENTS/DEFENDANTS:** **--------------------------------------------------------------------------** ## **1. AMBIKA, AGED 48 YEARS** **D/O.LATE MRITHINJAYAN, KODIYIL, KAVANAD MEENATH CHERRY, SAKTHIKULANGARA, KOLLAM.- 691 004** **2. SUDHA, AGED 46 YEARS D/O.LATE MRITHINJAYAN, KODIYIL, KAVANAD MEENATH CHERRY, SAKTHIKULANGARA, KOLLAM.- 691 004** ## **3. SURESH, AGED 43 YEARS** **S/O.LATE MRITHINJAYAN, KODIYIL, KAVANAD MEENATH CHERRY, SAKTHIKULANGARA, KOLLAM.- 691 004** **4. USHA, AGED 42 YEARS D/O.LATE MRITHINJAYAN, KODIYIL, KAVANAD MEENATH CHERRY, SAKTHIKULANGARA, KOLLAM.- 691 004** ## **5. SUNILKUMAR, AGED 40 YEARS,** **S/O.LATE MRITHINJAYAN, KODIYIL, KAVANAD MEENATH CHERRY, SAKTHIKULANGARA, KOLLAM.- 691 004** **R1-R4 BY ADV. SMT.K.G.BINDU R1-R4 BY ADV. SMT.T.S.MAYA (THIYADIL)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J.** ========================== **R.S.A. No. 835 of 2013** =================================== **Dated this the 3[rd] day of January, 2014** ## **JUDGMENT** Plaintiff is the appellant. His suit is for declaration that he has perfected title to the plaint schedule property by adverse possession and limitation. The plaint schedule property measures 2½ cents. There is a flour mill in that property. According to the plaintiff he came to be in possession of the property in 1969. It was also contended that the power supply connection was obtained in his name and machinery for running flour mill was installed by him. He denies the contention raised by defendants that he came to be in possession of the said property as a tenant under his brother late Mrithyunjayan. The plaintiff contended that his possession was open, hostile and uninterrupted and continued to be in possession from 1969 onwards and thus he has perfected his title to the said property. -: 2 :- R.S.A.No.835/2013 2. Defendants resisted the suit contending that the plaintiff was only a tenant of the suit property and that the plaintiff was paying rent to his brother late Mrithyunjayan and receipts were issued for that purpose just prior to the lease in favour of the plaintiff. The building was in possession of one Gopinatha Pillai. The electricity connection was obtained by Gopinatha Pillai and the consumer number was 1245. Gopinatha Pillai surrendered the building and it was lying vacant for some time. Then on the request made by the plaintiff, the plaint schedule property was given on rent to the plaintiff for conducting a flour mill in the year 1971. The rent originally payable was ₹ 25/- and it was thereafter enhanced to 30/- and then to ₹ ₹ 40/-. 3. Before the trial court PW1 to PW5 were examined and Exts.A1 to A11 were marked. DW1 and DW2 were examined and Exts.B1 to B17 and Ext.X1 were also marked. The trial court after considering the entire evidence, found that the plaintiff is not entitled to get declaration of tile or -: 3 :- ## R.S.A.No.835/2013 for injunction as prayed for and thus the suit was dismissed. The lower appellate court had a re-appraisal of the pleadings and evidence and concurred with the view taken by the trial court and thus dismissed the appeal. 4. The learned counsel appearing for the plaintiff/appellant would submit that there was no reappreciation of the evidence by the lower appellate court. It is submitted that paragraph 9 of the judgment of the lower appellate court which starts with a discussion of the case will make it clear that the learned Judge had a preconceived idea and it was thereafter the court proceeded to discuss the evidence and so there was no proper re-appreciation of the evidence. It is further argued that documents produced on the side of the plaintiff would clearly show that the theory put forward by the respondents that the property was leased out to the appellant in 1971 by his brother late Mrithyunjayan on tenancy right stood falsified by the documents produced by the appellant. -: 4 :- R.S.A.No.835/2013 5. Ext.A4 is a letter dated 18/12/1970 sent from the office of the KSEB to the plaintiff herein. It would show that the validity of the power supply connection No.57/69-70, was extended upto 31/1/1971. The reference made therein would show that the request was made by the plaintiff on 10.12.1970. This letter does not show in respect of which building or property, this letter was given. Ext.A5 is a receipt dated 15/08/1971 where the consumer number is shown as 1455. In Ext.A4 the number shown is 1145. Whether it is the same consumer number or not is not clear. There is no acceptable evidence to show that the consumer number 1445 mentioned in Ext.A5 pertains to the electricity connection given to the building situated in the suit property. 6. It is vehemently argued by the learned counsel for the appellant that no acceptable evidence was adduced by the respondents to prove the nature of possession of the premises pleaded by the respondents. It is further argued that the courts below thoroughly went wrong in placing -: 5 :- ## R.S.A.No.835/2013 undue reliance on Exts.B13 series and B14 series, the counter foils and receipts produced by the defendants. 7. Ext.B13 book shows the counter foils of receipts issued during 1981, 1982 and till almost the end of 1983. The evidence would show that there were about 9 shop rooms held by late Mrithyunjayan. Those shop rooms and other buildings were in the possession of tenants to whom rent receipts were issued by late Mrithyunjayan when monthly rents were paid by the tenants. 8. Ext.B14 is another book containing counter foils of receipts issued to various tenants during 1983 last, 1984, 1985 and till 1986. Much has been argued by the learned counsel for the respondents stating that these receipts showing the name of Sukumaran, the plaintiff herein, were created by defendants to suit their case of tenancy making use of some blank counter foils which were available in the two books. The evidence would show that these counter foil receipt books were produced by the defendants in another suit which was filed against another tenant. These receipt -: 6 :- ## R.S.A.No.835/2013 books were obtained from the court and were subsequently produced in this case and so the learned counsel for the respondents would submit that the plea raised by the appellant that the receipts shown to have been issued to the plaintiff were subsequently created is totally untenable. These receipt books were accepted by the court in the other suit (OS 18/1986) in which these receipt books were produced. It is true that the endorsements or acknowledgments of the plaintiff were not obtained on the reverse of the receipts. But a perusal of the receipt books (Exts.B13 and B14) would leave no doubt that the case of concoction or fabrication put forward by the appellant is unsustainable. 9. It is argued by the learned counsel for the respondents that when these counter foils of receipts were produced and evidence was let in, one of the contentions raised by the appellant was that Sukumaran mentioned therein may be some other Sukumaran and not the appellant herein. There was no specific case for the -: 7 :- ## R.S.A.No.835/2013 appellant that any other person by name Sukumaran was a tenant of late Mrithyunjayan. It is further submitted by the learned counsel for the appellant that these receipt books are only of the year 1981 to 86, but other document was produced by the defendants to show the receipt of rent from the plaintiff for the period, at least from 1971 to 1981. The defendants would contend that hand written receipts were also issued by the landlord to the plaintiff tenant. Receipts for the period subsequent to 1986 were not produced. The suit was filed in the year 2000. It is also contended that till the present suit was filed by the plaintiff in the year 2000, no action was taken by late Mrithyunjayan or by his legal heirs for evicting the appellant or claiming arrears of rent. These factors, according to the appellant, would scuttle the plea raised by the defendants that the plaintiff was actually a tenant of the plaint schedule property. 10. This contention has been stoutly resisted by the learned counsel for the respondents who submits that, if as a matter of fact that the building which had been in -: 8 :- ## R.S.A.No.835/2013 existence earlier was pulled-down and a new building was constructed by the appellant, certainly he must have been in possession of the plan or license or anything of that sort to substantiate that plea but no evidence worthy of acceptance was produced by the appellant. 11. To crown it all, the respondents also rely upon the admission made by PW1 the plaintiff in OS 18/86. In that suit, it was admitted by him that the land whereupon the flour mill is situated belonged to his brother and that it was given to him by his brother late Mrithyunjayan. The contention that it must be relating to some other property cannot be countenanced since there is no case for the appellant that there was any other property where any other mill was installed or erected. It is true that an admission made by a party can be explained. But when the relevant portion in Ext.B9 deposition was confronted to PW1, he could not give any plausible explanation. It was admitted by him that the said land was given to him by his brother. The land fetched value at the rate of 200/- per₹ -: 9 :- ## R.S.A.No.835/2013 cent. Though a party or witness can explain the admission, so far as the admission as aforesaid is concerned, it remains unexplained. No document was produced to show that the electricity consumer number pertaining to the suit building stood registered or was registered in the name of the appellant. 12. It is vehemently argued by the learned counsel for the appellant that the plaintiff has been in possession of the property from 1969 itself. But on the other hand, respondents contended that the plaintiff obtained possession of the property on lease from Mrithyunjayan in the year 1971. The question is not whether the lease was granted in 1971 or prior to or on a subsequent date. So far as the plaintiff is concerned he seeks a declaration that he has perfected his title by adverse possession. He must specifically plead the date on which his possession commenced asserting such possession as hostile to that of the real owner. The courts below have analysed the evidence and held that the plea put forward by the plaintiff -: 10 :- ## R.S.A.No.835/2013 that he has been in possession of the property since 1969 denying the title of the real owner and that his possession was hostile to that of Mrithyunjayan could not be substantiated. It is actually a question of fact. Since the courts below concurrently found the issue against plaintiff, the contention to the contrary cannot be accepted. 13. A party claiming adverse possession must prove his possession '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 rightful owner and it must be actual, visible, exclusive hostile and continued over the statutory period. (See the decisions of the Supreme Court in **S.M. Karim v. Bibi Sakinal - AIR 1964 SC 1254, Parsinni v. Sukhi – (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567).** In order to constitute adverse possession physical fact of exclusive possession and the animus possidendi to -: 11 :- ## R.S.A.No.835/2013 hold it as owner in exclusion of the actual owner are the most important factors that are to be accounted. Therefore, a person who claims adverse possession should show on what date he came into possession and what was the nature of his possession and whether the factum of possession was known to the other party; besides, how long his possession was continued. It must also be proved that his possession was open and undisturbed. The dictum laid down by the Hon'ble Supreme Court in the aforesaid decisions is that a person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish his adverse possession. (See also the decision of the Hon'ble Supreme Court in **P.T. Munichikkanna Reddy and Others v. Revamma and Others - AIR 2007 SC 1753)** . 14. The Hon'ble Supreme Court has held in **Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan - (2009) 16 SCC 517** as : -: 12 :- R.S.A.No.835/2013 _“32. Before parting with this case, we deem it appropriate to observe that 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 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 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._ _**33.** We fail to comprehend why the law should on place premium dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation”._ 15. It was also held by the Apex Court in **State of** ## **Haryana v. Mukesh Kumar and Others - (2011) 10 SCC 404:** _“A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to_ -: 13 :- R.S.A.No.835/2013 _clearly plead and establish all facts necessary to establish adverse possession. Though we got this law of adverse possession from the British. It is important to note that these days the English Courts are taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission”._ No substiantial question of law arises. Hence, this RSA is dismissed. Sd/- **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge