Kandan and others v. Seyed Muhammed Rawther and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 18TH DAY OF JUNE 2013/28TH JYAISHTA 1935** ## **SA.No. 186 of 2002 (E)** ## **-----------------------** **AS 141/1998 of DISTRICT COURT, PALAKKAD OS 326/1979 of ADDL.MUNSIFF COURT, PALAKKAD -----------------** **APPELLANT(S) (APPELLANTS/DEFENDANTS 2 TO 4,6,8 & 9) :-** **------------------------------------------------------------** **1. KANDAN, S/O.CHAMI RESIDING AT CHANDANAPURAM, NAGARIPURAM AMSOM AND DESOM PALAKKAD TALUK.** **2. RAMAN, S/O.CHAMI RESIDING AT CHANDANAPURAM, NAGARIPURAM AMSOM AND DESOM PALAKKAD TALUK.** **3. VELAN, S/O.CHAMI RESIDING AT** - **CHANDANAPURAM, NAGARIPURAM AMSOM AND DESOM PALAKKAD TALUK.** **4. VELLACHI, D/O.CHAMI RESIDING AT CHANDANAPURAM, NAGARIPURAM AMSOM AND DESOM PALAKKAD TALUK.** **5. CHATHAN, S/O. CHAMI RESIDING AT CHANDANAPURAM, NAGARIPURAM AMSOM AND DESOM PALAKKAD TALUK.** **6. PARU, D/O.CHAMI, RESIDING AT CHANDANAPURAM, NAGARIPURAM AMSOM AND DESOM PALAKKAD TALUK.** **BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.JACOB SEBASTIAN SRI.AJITH R.KARTHA** ## **RESPONDENT(S) (RESPONDENT/PLAINTIFF) :-** **------------------------------------------** **1. SEYED MUHAMMED RAWTHER, S/O.MALANGA ROWTHER, RESIDING AT KALAVANKODE NAGARIPURAM AMSOM AND DESOM, PALAKKAD TALUK. (DIED)** **ADDL.2. ABDHUL RAHMAN, S/O.LATE SYED MUHAMMED RAWTHER, AGED 58 YEARS, CHANDANAPURAM (HOUSE), NAGARIPURAM MANNUR, P O** ## **SA.No. 186 of 2002** **ADDL.3. C.ASANAR, S/O.LATE SYED MUHAMMED RAWTHER, AGED 54 YEARS, POTTAMPULAKKAL (HOUSE), MANNUR PO** **ADDL.4. MARIYA, W/O.T.M.YOOSAF, D/O.LATE SYED MUHAMMED THINUMUHAMMAD (HOUSE), SEENATH MANZIL, KALLADEPATTA PO, ONGALOOR TERUV, ONGALOOR.** - **ADDL.5. FATHIMA D/O.LATE SYED MUHAMMED KOTTEKADE (HOUSE) VADEKKETHARA, KOTTEJKADE, PALAKKAD.** - **ADDL.6. SULIKHA, D/O.LATE SYED MUHAMMED VALIYAKKATTUPARAMB (HOUSE), KAMBA P.O., VALLIKKODE.** **ADDL.7. SARA D/O.LATE SYED MUHAMMED, PARAKKAL (HOUSE) PARASERRY PO, KONGAD.** **ADDL.R2 TO R7 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED SOLE RESPONDENT AS PER ORDER DATED 9.7.2010 ON I.A.No.1279/2010.** **BY ADV. SRI.D.KRISHNA PRASAD (CAVEATOR) SRI.JOJI VARGHESE BY ADV. SMT.P.K.RADHIKA FOR ADDL.RESPONDENTS** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------S.A. No.186 of 2002** **---------------------------Dated this the 18[th] day of June 2013** ## **J U D G M E N T** The defendants are the appellants. The suit was for recovery of possession on the strength of title. The disputed property measures 15 cents in Survey No.52/2C. The defendants set up tenancy contending that the suit property forms part of the property obtained by them from 'Mana'. Though the Land Tribunal found the question of tenancy in favour of the defendants, that was set aside by the appellate court. The defendants approached this Court by filing S.A.No.780/1988. It was found that the defendants have failed to establish that the suit property was part of their 'kudiyiruppu'. It was further found that the plaintiff has title to the disputed property. But, this Court remanded the matter to the trial court since there was no finding regarding the question of adverse possession and limitation raised by the defendants. Hence, the judgment and decree were set aside and the suit was remanded to the S.A. No.186 of 2002 -: 2 :- trial court for the limited purpose of deciding the question of adverse possession and limitation. It was further found that if the parties have any additional evidence, they will be permitted to adduce the same. Thereafter, the learned Munsiff considered the entire evidence and circumstances and found that the defendants could not prove that they have prescribed title to the suit property by adverse possession and limitation. There is a detailed discussion with regard to the plea of adverse possession and limitation and the question of law touching the issue in the judgment passed by the trial court. That judgment was confirmed by the appellate court. 2. After hearing both sides, the following substantial question of law has been re-framed :- Did the courts below go wrong in holding that the defendants have not perfected title by adverse possession and limitation, when the plea set up by them was only one of prescriptive lease hold right ? 3. The learned Senior Counsel appearing for the appellants would submit that the courts below proceeded S.A. No.186 of 2002 -: 3 :- on a wrong premise that what was sought to be established by the defendants is that they have perfected title by adverse possession and limitation but in fact, what was pleaded by the defendants was that they have prescribed tenancy right and so, that right should have been decided. 4. It may be remembered that the case set up by the defendants was that the suit property formed part of the lease obtained by them from the Mana and that the Land Tribunal has found the tenancy in their favour. It was that finding the appellate court set aside holding that the suit property did not form part of the lease obtained by the defendants. It is in that context, the courts below found that in fact, the alleged possession of the property by the defendants can never be in denial of the title of the plaintiff or his predecessor. At another place, the case of the defendants is that the plaintiff has no title to the suit property. Though it may be correct that a person can prescribe a limited right namely; right of tenancy and that it is different from prescribing title in the general character, still there is no evidence to show that the defendants had S.A. No.186 of 2002 -: 4 :- prescribed tenancy right. It is pointed out by the learned counsel for the respondent that the case of the defendants was that the suit property formed part of the lease hold obtained by them from 'Mana' but that was already found against. That finding has become final. There is a statement to the effect that they have prescribed tenancy right. When their case is that they were cultivating tenants entitled to fixity of tenure under the KLR Act and since that tenancy right which is recognisable under the KLR Act the contention that they prescribed a lease hold right or a limited tenancy right cannot be accepted without specific pleading and evidence. In a case of prescriptive tenancy right the defendants must prove how the right claimed by them would enable them to prescribe their so called tenancy right. The remand order does not show that what was projected by the defendants was that they are holding limited interest but on the other hand, their contention was that they have prescribed title by adverse possession and limitation. Though a party may plead his adverse possession to the extent of the interest claimed by him, S.A. No.186 of 2002 -: 5 :- since in this case, the defendants claimed that they were in possession as a lessee and since the lease set up by them in respect of the suit property could not be proved, the continuous possession alleged by them is not capable of founding a prescriptive tenancy right, for, it is not enough if the person in possession claims tenancy but there must be evidence to show the essential terms of the lease under which he purports to claim. Though there is a vague statement that they have prescribed tenancy right, there is no acceptable evidence. To uphold prescriptive lease in the absence of such evidence, will be to uphold a relationship that would be incapable of enforcement. Therefore, the contention that the defendants/appellants have prescribed lease hold/tenancy right was rightly found against by the courts below. 5. In **Kavunnv Chakkiar** v. **Govinda Gurukkal and another** [AIR 1975 Kerala 182] it was held by this Court :- “He has been in possession from 1125 (1950) and the suit was instituted on 21.6.1963; so that there was adequate S.A. No.186 of 2002 ## -: 6 :- continuity. But in view of the concurrent findings – with which I agree – that the lease set up by the defendant has not been proved, this continuous possession is incapable of founding a prescriptive tenancy right, for it is not enough if the person in possession claims a tenancy; there must be evidence to show the essential terms of the lease under which he purports to claim. To uphold a prescriptive lease, in the absence of such evidence will be to uphold a relationship that would be incapable of enforcement. This is of significance in the case of derivative or limited prescriptive rights, as the right of the owner is not completely extinguished as with acquisition of absolute prescriptive rights.” Therefore, even if it is accepted that the defendants have been in possession of the property, that is not sufficient to hold that they have prescribed tenancy right since the essential term of the lease under which the defendants purported to claim could not be substantiated. In the result, this Second Appeal is dismissed. The appellants are granted three months time to surrender possession of the plaint schedule property. **Sd/N.K.BALAKRISHNAN, JUDGE.** Jvt