Kunjamma Chacko and Thankamma Sunny v. Ammini Devasia and others (RSA 853/2008 and RSA 871/2008)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY ,THE 22ND DAY OF FEBRUARY 2019 / 3RD PHALGUNA, 1940** ## **RSA.No. 853 of 2008** **AGAINST THE JUDGMENT AND DECREE DATED 13-06-2008 IN AS 57/2002 of ADDITIONAL DISTRICT COURT,KOTTAYAM** **AGAINST THE JUDGMENT AND DECREE DATED 24-11-2001 IN OS 518/1996 of ADDITIONAL SUB COURT,KOTTAYAM** ## **APPELLANTS (RESPONDENTS 1 AND 2 IN THE APPEAL BEFORE LOWER APPELLATE COURT AND DEFENDANTS IN THE TRIAL COURT):** **1 KUNJAMMA CHACKO, W/O.LATE JOSEPH CHACKO, KOIPPALLIL, KAKKAMTHODU, CHANGANACHERRY.** **(IT IS RECORDED THAT THE 1ST APPELLANT IS DEAD AND 2ND APPELLANT IS THE SOLE LEGAL HEIR OF THE 1ST APPELLANT AS PER THE ORDER DATED 09.11.2018 VIDE MEMO DATED 13.09.2018)** **2 THANKAMMA SUNNY, W/O.SUNNY THALIYATH HOUSE, TASS ROAD,ALUVA.** **BY ADVS. SRI.R.D.SHENOY (SR.) SRI.S.VINOD BHAT** ## **RESPONDENT/S:** **1 AMMINI DEVASIA, W/O.LATE DEVASIA, MANIMURYTHADATHIL, OPPOSITE SNDP OFFICE, KOKKOTTUCHIRA, THRIKKODITHANAM P.O., CHANGANACHERRY.** **(IT IS RECORDED THAT THE 1ST RESPONDENT IS DEAD AND RESPONDENTS 2 TO 6 ARE HER LEGAL REPRESENTATIVES AS PER ORDER DATED 09.11.2018 VIDE MEMO DATED 13.09.2018)** **2 K.S.THOMAS, S/O. LATE DEVASIA PROPRIETOR, THOMPSON MEDICALS, KAVALAM BAZAR,KAVALA, CHANGANACHERRY.** **[RSA 853/2008,RSA.871/2008] 2** - **3 K.S.SAJI, S/O. LATE DEVASIA, MANIMURYTHADATHIL, OPPOSITE SNDP OFFICE, KOKKOTTUCHIRA, THRIKKODITHANAM P.O., CHANGANACHERRY.** - **4 ALICE MATHEW, W/O.MATHEW NADUVILE VEEDU, MUTTAR, ALAPPUZHA DISTRICT.** - **5 TESSAMMA SAJAN, W/O.SAJAN, THAYYILKIZHAKKETHIL, FATHIMAPURAM,, CHANGANACHERRY.** - **6 K.S.JOSEPH, S/O.LATE DEVASSIA SCIENTIST, NATIONAL PHYSICAL AND OCEANOGRAPHIC LABORATORY, THRIKKAKARA, ERNAKULAM DISTRICT.** - **7 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, KOTTAYAM.** - **8 VILLAGE OFFICER, VAZHAPPALLY EAST VILLAGE CHANGANACHERRY TALUK, KOTTAYAM DISTRICT.** - **9 TAHSILDAR, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT** **BY ADVS. GOVERNMENT PLEADER - R7 TO R9 SMT.K.INDU (POURNAMI) SMT.SIKHA G.NAIR SRI.ANIL XAVIER SRI.M.RISHIKESH SHENOY SRI.M.SHAHEED AHMAD** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2019, ALONG WITH RSA.871/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[RSA 853/2008,RSA.871/2008] 3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY ,THE 22ND DAY OF FEBRUARY 2019 / 3RD PHALGUNA, 1940** ## **RSA.No. 871 of 2008** **AGAINST THE JUDGMENT AND DECREE DATED 13-06-2008 IN AS 56/2002 OF ADDITIONAL DISTRICT COURT,KOTTAYAM** **AGAINST THE JUDGMENT AND DECREE DATED 24-11-2001 IN OS 335/1995 OF ADDITIONAL SUB COURT,KOTTAYAM** ## **APPELLANTS (RESPONDENTS 1 AND 2 IN THE APPEAL BEFORE LOWER APPELLATE COURT AND PLAINTIFFS IN THE TRIAL COURT):** - ***1 KUNJAMMA CHACKO, W/O LATE JOSEPH CHACKO, KOIPPALLIL, KAKKAMTHODU, CHANGANACHERRY.(DIED)** **2 THANKAMMA SUNNY, W/O.SUNNY, THALIYATH HOUSE, TASS ROAD, ALUVA.** *** THE APPELLANT NO.2 IS RECORDED AS LEGAL HEIR OF DECEASED FIRST APPELLANT AS PER ORDER DATED 09.11.2018 IN MEMO DATED 13.09.18.** **BY ADVS. SRI.R.D.SHENOY (SR.) SRI.S.VINOD BHAT** **RESPONDENTS(RESPONDENTS 1 TO 5 ARE THE APPELLANTS IN THE APPEAL AND RESPONDENTS 6 TO 9 ARE RESPONDENTS 3 TO 6 IN THE APPEAL BEFORE LOWER APPELLATE COURT. THEY ARE DEFENDANTS 1 TO 9 IN THE TRIAL COURT):** - ****1 AMMINI DEVASIA, W/O LATE DEVASIA, MANIMURYTHADATHIL, OPPOSITE SNDP OFFICE,, KOKKOTTUCHIRA, THRIKKODITHANAM P.O.,, CHANGANACHERRY.(DIED)** - **2 K.S.THOMAS, S/O.LATE DEVASIA PROPRIETOR, THOMPSON MEDICALS,, KAVALAM BAZAR, KAVALA, CHANGANACHERRY.** - **3 K.S.SAJI, S/O.LATE DEVASIA, MANIMURYTHADATHIL, OPPOSITE SNDP OFFICE,,** **[RSA 853/2008,RSA.871/2008] 4** **KOKKOTTUCHIRA, THRIKKODITHANAM P.O., CHANGANACHERRY.** - **4 ALICE MATHEW, W/O.MATHEW NADUVILE VEEDU, MUTTAR, ALAPPUZHA DISTRICT.** - **5 TESSAMMA SAJAN, W/O.SAJAN, THAYYILKIZHAKKETHIL, FATHIMAPURAM, CHANGANACHERRY.** - **6 K.S.JOSEPH, S/O.LATE DEVASSIA, SCIENTIST, NATIONAL PHYSICAL AND OCEANOGRAPHIC, LABORATORY, THRIKKAKARA, ERNAKULAM DISTRICT.** - **7 STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOTTAYAM.** - **8 VILLAGE OFFICER, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT.** - **9 TAHSILDAR CHANGANACHERRY TALUK KOTTAYAM DISTRICT.** **** THE RESPONDENTS 2 TO 6 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED FIRST RESPONDENT AS PER ORDER DATED 09.11.18 IN MEMO DATED 13.09.18** **BY ADVS. GOVERNMENT PLEADER - R7 TO R9 SMT.K.INDU (POURNAMI) SMT.SIKHA G.NAIR SRI.ANIL XAVIER SRI.M.RISHIKESH SHENOY SRI.M.SHAHEED AHMAD SRI.T.KRISHNANUNNI SR.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2019, ALONG WITH RSA.853/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[RSA 853/2008,RSA.871/2008] 5** ## **JUDGMENT** Two suits were tried jointly by the Trial Court. The leading case is O.S.No.335/1995. It is a suit for permanent prohibitory injunction against trespass and causing obstruction to the peaceful possession and enjoyment of plaint schedule property. The plaint schedule consists of three sets of property as item Nos. 1 to 3. The connected suit in O.S.No.518/1996 filed by defendant Nos.1 to 6 against the plaintiffs for declaration of their title over 35 1/4[th] cents of property scheduled in the plaint and also for recovery of possession of property. Both the suits were tried jointly. The Trial Court decreed the leading case granting permanent prohibitory injunction but dismissed the connected suit in O.S.No.518/1996. In appeal, the First Appellate Court reversed the finding of the Trial Court and consequently the leading case in O.S.No.335/1995 dismissed. The connected suit was decreed. Aggrieved by these two decree and judgment, the plaintiffs in the leading case came up with these **[RSA 853/2008,RSA.871/2008] 6** two appeals. For the sake of convenience the parties herein below referred in their status in the leading case in O.S.No.335/1995. 2. The claim of plaintiff in the leading case are two folded, one is by adverse possession and limitation. The other is that the entire fund for purchasing 35 1/4[th] cents of property is out of the funds of father of second plaintiff. Admittedly, the item No. 1 to 3 properties were purchased under different documents. In so far as item Nos.1 and 3 properties are concerned, no dispute was raised by the defendant but admitted acquisition of right, title and interest over the same by the predecessor in interest of plaintiffs Nos.1 & 2. It is also not in dispute that the property alleged to have been purchased by the predecessor in interest will form part of a large extent of 47 cents. It is also admitted by the defendants that an extent of 11 3/4[th] cents was earlier purchased by the predecessor in interest of plaintiffs. It is somewhat after 6 months, the predecessor in interest of the defendants 1 to 6 purchased the remaining extent which comes 35 1/4[th] cents under Ext.A2 sale deed of the year 1956. **[RSA 853/2008,RSA.871/2008] 7** 3. The claim of contribution alleged to have been made by the predecesor-in-interest of plaintiff in obtaining the property in the name of predecessorin-interest of defendants 1 to 6 appears to be not sustainable in view of provisions contained in the Prohibition of Benami Property Transactions Act, 1988. Reliance was placed on by the appellant based on Sections 3, 5 and 8 of Prohibition of Benami Property Transactions Act, 1988. In support of his argument that the abovesaid provisions would come into force only from the 19[th] day of May 1980, but the legal position was very much settled by the Apex Court in **Mithilesh Kumari v. Prem Behari [1989 (1) KLT SC SN 29]** and explained the impact of the expression “property held in benami” which stands for every property held in benami as on the date of commencement of the Act. At this juncture it is fairly submitted by the counsel for the appellant that they are not pressing any relief based on contribution of fund presumably on the reason that the said contention would not stand by virtue of the provisions contained in the Prohibition of Benami Property Transactions Act, 1988. **[RSA 853/2008,RSA.871/2008] 8** 4. The claim of adverse possession and limitation appears to be not sustainable as they have claimed adverse possession from 02.06.1956 onwards, the date on which the predecessor-in-interest of the defendants 1 to 6 obtained the property under Ext.A2 sale deed. The execution of deed of transfer by its lawful owner in favour of predecessor-in-interest of defendants 1 to 6 really amounts to exercise of ownership over the property and hence the date claimed by the plaintiff assumes importance as it is the date of execution of Ext.A2 sale deed. The claim of defendants 1 to 6 that their predecessor had obtained delivery of possession of property based on the recital in Ext.A2 cannot be sustained, since the delivery of possession is not a term of contract. But when a sale was effected through a registered document by parting with possession also which is also recited in the document of title, it would satisfy the possession diverted at the time of sale to the purchaser, though possession is not a term of contract and it would operate against a stranger who had no right, title or interest over the property. So it will go and take away the very basis of adverse **[RSA 853/2008,RSA.871/2008] 9** possession claimed by the plaintiffs in continuation of their predecessor-in-interest over the property. 5. Yet another argument was also advanced in support of the adverse possession based on execution of Ext.A1 gift deed of the year 1971 executed by the predecessor in interest of the first and second plaintiff, in favour of the second plaintiff. It is submitted that Ext.A5 to 17 documents were produced to show mutation of the property in the name of beneficiary under Ext.A1 document and payment of tax. Ext.A18 and A19 documents, the extract of Thandaper was also produced to show that the property was mutated in the name of second plaintiff and she was paying basic tax in respect of the property till the date of suit. Both the Trial Court and the First Appellate Court made discussions with respect to the question of perfection of adverse title in detail and also the application of the Prohibition of Binami Property Transactions Act, 1988. But, the suit filed by the plaintiff is one for injunction simplicitor without any substantial prayer for declaring their adverse title over the property. An adverse title can be perfected statutorily in compliance with the **[RSA 853/2008,RSA.871/2008] 10** requirement mandated. Hence it requires declaration and no one can assume an adverse title under the guise of a mere suit for injunction simplicitor. It needs a declaration by a competent court otherwise cannot either be used as a sword or as a shield. In otherwise, a mere suit for injunction simplicitor will not stand against the original owner. There should be a substantial relief declaring adverse title over the property without which a mere injunction suit cannot be maintain as against the registered owner. The contention raised by the learned counsel for the appellant that even otherwise he is entitled to protect the possession of property as he is in a settled possession of property cannot be accepted simply because of the reason that a person who is in settled possession can injunct the original owner only for the purpose of getting evicted by due process of law. A right to get evicted by due process of law alone is attached to a person who is in settled possession of property against the original owner of the property. But, when title was perfected by adversive possession, necessarily there should be a relief sought in that **[RSA 853/2008,RSA.871/2008] 11** behalf for declaration of their perfection of title. There cannot be an assumption of perfection of title by the plaintiff without having an adjudication and declaration. The original owner had initiated eviction proceedings against the plaintiffs and hence there cannot be any grant of permanent prohibitory injunction by way of a decree. Hence both the appeals are dismissed, by confirming the decree and judgment of the First Appellate Court. No order as to cost of appeal. ## **Sd/-** msp **P.SOMARAJAN JUDGE** //TRUE COPY// P.A. TO JUDGE