Tenetowl LogoTenetowl
High Court of KeralaSingle JudgeAppeals dismissed

Krishna Kumar v. Ramadasan and others

Case / Petition Number:RSA No. 935 of 2013 (C)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • N.K. Balakrishnan
Judgment Date
2013-11-06
Court Decision / Holding
The appeals are dismissed. The High Court upheld the lower courts’ findings that the plea of adverse possession is unsustainable and that the decree for mandatory injunction should stand. It also directed time to vacate the suit building until 6 January 2014, subject to the filing of an undertaking that Krishna Kumar would surrender possession by that date and not induct others into possession.
Final Disposition
Appeals dismissed

Parties to the Case

Appellants / Petitioners

  • Krishna Kumar

Respondents

  • Ramadasan
  • Lakshmi
  • Shanmugh

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri K.S. Rajesh
  • • Sri M. Shaju Purushothaman

Counsels for Respondents

  • • Sri T.N. Manoj (Caveator)

Case Synopsis & Summary

Krishna Kumar, the plaintiff in O.S. No.1/2006, challenges the decrees in RSA Nos. 935/2013 (and 936/2013) arising from civil suits concerning the suit property in Kodungallur taluk. The genesis lies in Parameswaran’s transfers: 6 cents were sold in 1986 to Ramadasan (his son-in-law), with portions already alienated to others, and Parameswaran also purportedly sold 34 cents to another daughter. Krishna Kumar contends that he trespassed onto the property in 1986 and has since possessed openly and peaceably as of right, claiming title by adverse possession and prescription. Defendants dispute this, asserting that the shop room within the suit property remained in their possession, and that Parameswaran had obtained eviction (OS 58/1986) and later died (2000), after which the 1st defendant joined in an execution petition (EP 124/1993) and obtained delivery of the building. The lower courts held that Krishna Kumar’s claim of possession since 1986 was unfounded and refused to grant adverse possession relief, while directing protection via a decree for mandatory injunction in OS 817/2006. The High Court, relying on Supreme Court authority such as State of Haryana v. Mukesh Kumar and Hemaji Waghaji Jat v. Bhikhabhai Harijan, upheld that adverse possession cannot override the true owner absent clear proof. Consequently, both appeals were dismissed, with the court granting Krishna Kumar time to vacate the suit premises by 6 January 2014 upon filing an undertaking to surrender possession.

Legal Doctrines & Maxims

  • A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner.
  • The law of adverse possession is irrational, illogical and wholly disproportionate; it is a windfall for a dishonest person who had illegally taken possession of the property of the true owner.
  • No premium or windfall for dishonesty; the owner should not lose possession due to mere inaction (as reiterated in Hemaji Waghaji Jat v. Bhikhabhai Harijan).

Submissions & Arguments

Contentions of Appellants / Petitioners

Krishna Kumar contends that he took possession of the suit property in 1986 and has continued openly and peaceably as of right, thereby acquiring title by adverse possession and prescription. He asserts that Parameswaran's earlier transactions and the eviction order were not effective to defeat his continuous possession. He argues that the defendants cannot establish exclusive possession and that the courts below erred in ignoring long-continued possession and misapplying the law of adverse possession. He relies on Supreme Court authorities to stress that a true owner should not lose possession due to mere inaction, and that a stringent proof of continuity and exclusivity is required to sustain an adverse possession claim.

Contentions of Respondents

Defendants contend that the shop room in question remained in their possession, that Parameswaran obtained eviction (OS 58/1986) and later died, and that the execution petition (EP 124/1993) led to delivery of the building to the first defendant. They argue that Krishna Kumar’s claim of possession since 1986 is unsubstantiated and that the plaintiff was at best a licensee who was not in adverse possession; hence, the courts below correctly rejected the plea of adverse possession and granted a decree for mandatory injunction to protect the true ownership while contesting the licensee status.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
State of Haryana v. Mukesh Kumar and Others(2011) 10 SCC 404PositiveCited to support the proposition that a claimant pleading adverse possession has no equities against the true owner; the court relies on the principle that adverse possession should be clearly pleaded and proven.
Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan(2009) 16 SCC 517PositiveCited to illustrate that the law of adverse possession is irrational and harsh on the true owner, reinforcing the court’s rejection of a windfall for an illegal possessor.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Krishna Kumar v. Ramadasan and others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 6TH DAY OF NOVEMBER 2013/15TH KARTHIKA, 1935** ## **RSA.No. 935 of 2013 (C)** **-----------------------** **AGAINST THE JUDGMENT IN AS 36/2010 of ADDL.SUB COURT, IRINJALAKUDA DATED 07-03-2013** **AGAINST THE JUDGMENT IN OS 1/2006 of MUNSIFF COURT, KODUNGALLUR DATED 28-01-2010** ## **APPELLANT/APPELLANT BEFORE THE SUB COURT/PLAINTIFF:** **--------------------------------------------------------------------------------------------** **KRISHNA KUMAR, AGED 53 YEARS S/O.NADUMURI PARAMESWARAN, VEMBALLOOR DESOM PENAGAD AMSOM, SREENARAYANAPURAM VILLAGE KODUNGALLUR TALUK.** **BY ADVS.SRI.K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN** ## **RESPONDENTS/RESPONDENTS BEFORE THE DISTRICT COURT/DEFENDANTS:** - **-----------------------------------------------------------------------------------------------------------------** **1. RAMADASAN, AGED 53 YEARS** - **S/O.PANAKKAPARAMBIL VELANDI, THRITHALLUR DESOM VADANAPPALLY AMSOM, CHAVAKKAD TALUK THRISSUR DIST.PIN - 680 619.** **2. LAKSHMI, W/O.POOVATHUMKKADAVIL UNNIKRISHNAN, AGED 41 YEARS PAPPINIVATTOM VILLAGE, KODUNGALLUR TALUK THRISSUR DIST, PIN - 680 685.** **3. SHANMUGHAN, S/O.THAKARAKUNNATH RAJAN, AGED 60 YEARS PADIYOOR VILLAGE AND DESOM, MUKUNDAPURAM TALUK THRISSUR DIST PIN - 680 695.** **R2 BY ADV. SRI.T.N.MANOJ (CAVEATOR)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06-11-2013, ALONG WITH RSA. 936/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ R.S.A. Nos. 935 & 936 of 2013 -----------------------------------------Dated this the 6[th] day of November, 2013 ## **J U D G M E N T** The plaintiff in O.S. No.1/2006 is the appellant in RSA No.935/2013. He is the defendant in O.S. No.817/2006. The suit O.S. No.1/2006 was dismissed. Accordingly, in the other suit, a decree for injunction was passed against him. 2. The plaint schedule property originally belonged to Parameswaran, the father of the plaintiff in O.S. No.1/2006. Parameswaran executed the sale deed in respect of 6 cents of land in favour of the 1[st] respondent ( his son-in-law) in 1986. It is stated that out of that 6 cents of land 3 cents had already been sold to others. It is also stated that Parameswaran had executed a sale deed in respect of 34 cents of land in favour of another daughter. ## **R.S.A. Nos. 935 & 936/2013** **-2-** 3. The plaintiff in O.S. No.1/2006 contends that the he (the plaintiff) had trespassed upon the suit property in 1986 and since then he had been in possession of the suit property openly and peaceably as of right and in denial of true owner's title and thus he has perfected title by adverse possession and limitation. This contention was resisted by the defendants in that suit contending that the shop room situated in the suit property was in the possession of the defendants. Petition was filed by Parameswaran for evicting that tenant. Parameswaran died in the year 2000. An order for eviction was passed in that suit (O.S. No.58/1986). Execution Petition E.P. No.124/1993 was passed for getting delivery of the building mentioned therein. Ext.B5 is the copy of the execution petition. The 1[st] defendant got himself impleaded in that Execution Petition and pursuant thereto the 1[st] defendant obtained delivery of that building. Therefore, the defendants would contend that the plea ## **R.S.A. Nos. 935 & 936/2013** **-3-** raised by the plaintiff ( the appellant herein) that he had been in possession of the property since 1986 is a sheer myth. The contention that the 1[st] defendant had been in possession of the property since 1986 was found against by the courts below. 4. It was 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 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 **-4-** ## **R.S.A. Nos. 935 & 936/2013** changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission”. 5. The Hon'ble Supreme Court has held in **Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan - (2009) 16 SCC 517** as : “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 ## **R.S.A. Nos. 935 & 936/2013** **-5-** 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 place premium on 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”. 6. The other suit O.S. No.817/2006 was filed by the defendants in O.S. No.1/2006 for an injunction contending that the appellant had attempted to trespass into the property. It was stated that the 2[nd] defendant therein had sold 2.290 cents from out of the plaint schedule property to the 3[rd] defendant as per sale deed no.711/2008. It was ## **R.S.A. Nos. 935 & 936/2013** **-6-** contended by the respondents that the plaintiff was only a licensee in respect of the shop room situated in the suit property and that license was revoked. On that basis, mandatory injunction was claimed. 7. The courts below have analysed the evidence in the correct perspective and came to the right conclusion that the plea of adverse possession set up by the appellants remained unsubstantiated. The trial court granted a decree in favour of the plaintiff in O.S. No.817/2006. The appeal filed against the same was dismissed by the lower appellate court. 8. In view of the findings entered by the courts below that the plea of adverse possession set up by the appellant is unsustainable, the decree for mandatory injunction granted by the courts below is only to be sustained. No substantial question of law arises in these appeals. **R.S.A. Nos. 935 & 936/2013** **-7-** In the result both these appeals are dismissed. Sd/- ## N.K. BALAKRISHNAN, JUDGE Condition No.(ii) occurring in paragraph No.5 of the order dated 5.12.2013 dismissing R.P. No.977/2013 in R.S.A. No.936/2013 is added to the operative portion of the common judgment dated 6.11.2013 in R.S.A. No.935/2013 and R.S.A. No.936/2013: “ The petitioner is granted time to vacate the suit building till 6.1.2014 on condition that the petitioner should file an undertaking affidavit before the execution court within 7 (seven) days from 5.12.2013 that he will surrender possession of the suit property on or before 6.1.2014 and that he will not induct any other person into the possession of the suit building.” Sd/Registrar (Judicial) jjj