M. Narayana Shetty v. Sipriyan D'Souza

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943** **RSA NO. 1031 OF 2012** **AGAINST THE ORDER/JUDGMENT IN AS 93/2008 OF ADDITIONAL DISTRICT** ## **COURT (ADHOC-II)KASARAGOD** **OS 414/2003 OF ADDITIONAL MUNSIFF COURT, KASARAGOD** ## **APPELLANT/APPELLANT/PLAINTIFF:** M.NARAYANA SHETTY, S/O.MUNDAPPA SHETTY, R/A.KOMBAGULI, PAVOOR VILLAGE, KASARAGOD TALUK, P.O.PAVOOR,KASARAGOD DISTRICT BY ADVS. SRI.S.V. BALAKRISHNA IYER SMT.GEETHA P.MENON SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.N.AJITH ## **RESPONDENT/RESPONDENT/DEFENDANT:** SIPRIYAN D'SOUZA, S/O.LUIS SOUZA, RESIDING NEAR GERUKATTE CHURCH, KUNJATHUR VILLAGE, P.O.PAVOOR, KASARAGOD TALUK AND DISTRICT, PIN-671323 BY ADV SRI.T.MADHU THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A No.1031 of 2012 2 K.BABU, J . -------------------------------------- R.S.A No.1031 of 2012 --------------------------------------Dated this the 16[th] day of November, 2021 ## JUDGMENT This Regular Second Appeal emanates from the judgment and decree dated 22.11.2004 passed by the Additional Munsiff's Court, Kasaragod in O.S.No.414/2003, which stands confirmed by the judgment and decree dated 13.04.2012 in A.S.No.93/2008 of the Additional District Court (Adhoc-II), Kasaragod. The plaintiff, who lost his case in the courts below is the appellant. The sole defendant is the respondent. 2. Material facts relevant for the adjudication of this appeal are briefly narrated below: 2.1. The plaintiff instituted the Original suit for a declaration that he perfected title in respect of the plaint schedule property by way of adverse possession. 2.2. Plaint 'A' schedule property is 96 cents of land comprised in Resurvey No.59/2B part of Pavoor Village in Kasaragod Taluk. R.S.A No.1031 of 2012 3 The plaint 'A' schedule property originally belonged to Nabeesa on Kumki right. Smt.Nabeesa held 'A' schedule property along with her adjoining warg lands. In 1952, the properties, including 'A' schedule property came to the possession of the plaintiff's father Mundappa Shetti on 'chalgeni lease', undertaking to pay an annual rent of 46 mudies of rice. Since that date Mundappa Shetti was in actual possession and enjoyment of the warg land along with the Kumki land, including 'A' schedule property. 35 years ago, Sri.Mundappa Shetty died. Thereupon, according to the plaintiff, the leasehold properties, including 'A' schedule property, devolved upon his legal representatives, including the plaintiff. On 23.12.1972, the warg lands held on leasehold along with the Kumki right were partitioned among the heirs of Mundappa Shetti as per a registered partition deed. The plaintiff pleaded that 'A' schedule property along with the other properties comprised in Re-survey No.59/2B7, 59/2B9, 59/2B10 and 59/2B11 were retained by the plaintiff on Kumki right along with some of warg properties held on leasehold right. During 1974-75, as per a Government Scheme for developing cashew plantation, plaintiff planted cashew seedlings in the R.S.A No.1031 of 2012 4 property. The adjoining properties, assigned in the name of plaintiff's cousin sister Smt.Rajeevi and Plaintiff's wife, were also in the possession of the plaintiff. The 'A' schedule property also formed part and parcel of the properties possessed and enjoyed by the plaintiff. On 09.01.1969, 'A' schedule property was assigned in favour of the defendant. But, the defendant did not take possession. Plaintiff challenged the order of assignment in appeal. But he continued in possession and enjoyment of the property. Plaint 'A' schedule property is planted with cashew. Plaintiff is taking yield from it. Ever since 1952, the plaintiff and his predecessors have been in open, peaceful and continues possession of 'A' schedule property on his right as absolute owner and after 09.01.1969, the date of assignment in respect of 'A' schedule property, in favour of the defendant in an open assertion of hostile title as against the defendant. Hence, the right of the defendant is barred by adverse possession and limitation. The plaintiff perfected his right and title over 'A' schedule property by way of adverse possession and limitation. The plaintiff's brother Balakrishna Shetti was granted a purchase certificate in respect of the property. On 13.12.2003, the R.S.A No.1031 of 2012 5 defendant, along with his brother, requested the plaintiff to surrender 'A' schedule property. The plaintiff refused and he was threatened by the defendant that he would forcibly dispossess him from the property. Hence, the plaintiff was constrained to institute a suit for declaration of his title over 'A' schedule property by way of adverse possession and limitation and also for a consequential injunction restraining the defendant and his men from trespassing upon 'A' schedule property. 2.3. The defendant resisted the claim of the plaintiff. According to the defendant, the plea of the plaintiff that the property originally belonged to Nabeesa and in 1952 it came in the possession of the predecessor in interest of the plaintiff and that the plaintiff has been in actual possession and enjoyment of the property after the death of his father is baseless. Plaint 'A' schedule property was assigned to the defendant as per order in D.R.No.7412/1964-65 dated 09.01.1969 and even before that the defendant has been in possession of the property. The plaintiff never obtained possession of the plaint schedule property. The cashew trees, now found in 'A' schedule property, were planted by R.S.A No.1031 of 2012 6 the defendant. The plaintiff, who has property adjacent to 'A' schedule property, had an eye on it, and on several occasions, he had placed proposals to the defendant to purchase the same. The defendant is residing about 5 kilometres away from the plaint 'A' schedule property, and by taking advantage of his absence from plaint 'A' schedule property, the plaintiff and his men trespassed upon it on 13.12.2003 and put up a barbed fence. Therefore, the plaintiff is not entitled to the relief of declaration and injunction as prayed for. 3. The evidence consists of the oral evidence of PW1 and DW1, Exhibits A1 to A28 marked on the side of the plaintiff, Exhibits B1 to B7 series marked on the side of the defendant and Exhibits C1 and C2 marked as Court Exhibits. 4. The Trial Court dismissed the suit. The plaintiff challenged the decree dismissing the suit before the First Appellate Court which confirmed the same. Being aggrieved by the concurrent findings of the Trial Court and the First Appellate Court, the plaintiff is before this Court in the second appeal. 5. After hearing both sides, this Court reformulated the R.S.A No.1031 of 2012 7 substantial questions of law as follows: (i) Did the Courts below misconstrue evidence in holding that the appellant/plaintiff has not perfected title by adverse possession? (ii) Did the Courts below err in holding that the appellant/plaintiff is a trespasser? 6. The case of the plaintiff is that he perfected title over plaint 'A' schedule property by way of adverse possession and limitation. The challenge of the defendant is that he is the absolute owner in possession of the plaint 'A' schedule property and that the plaintiff never acquired peaceful possession of the property as pleaded. 7. 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 R.S.A No.1031 of 2012 8 not be kept in abeyance for a long time i.e. a situation should not arise in which the title holder of the land is not known. Thirdly, it is presumed that the actual title holder 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. ## 8. 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.” ## 9. 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. " R.S.A No.1031 of 2012 9 10. 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. 11. In a case of adverse possession of land two aspects are important. Firstly, the nature of possession of land 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. 12. 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 R.S.A No.1031 of 2012 10 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.” ## 13. In P.T. Munichikkanna Reddy & Others v. Revamma & Ors ## [(2007) 6 SCC 59] , while dealing with the concept of adverse possession, the Honourable Apex Court held thus: “Therefore, to assess a claim of adverse possession, two-pronged 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.” ## 14. 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. 15. We have to analyse the pleadings and evidence in this case in the backdrop of the principles discussed above. ## 16. The case set up by the plaintiff is on the following R.S.A No.1031 of 2012 11 foundation: (a) The plaintiff's father Mundappa Shetty obtained 'A' schedule property along with other items of properties in 1952 as 'chalgeni lease'. (b) On the death of Sri.Mundappa Shetty the plaint schedule property devolved upon his legal representatives, including the plaintiff. (c) The plaintiff's brother Sri.Balakrishna Shetty was granted a certificate of purchase dated 18.09.1974 in a suo motu proceedings captioned as S.M.No.8/1970. (d) On 23.12.1972, the property was partitioned as per a registered partition deed by which plaint 'A' schedule property and other items were allotted to the plaintiff. (e) During 1974-75, the plaintiff planted cashew seedlings in plaint 'A' schedule property as per a Government scheme. (f) Plaint 'A' schedule property forms part and parcel of the other properties in possession of the plaintiff. (g) Though the plaint schedule property was assigned in favour of the defendant as per order dated 09.01.1969, the defendant had not R.S.A No.1031 of 2012 12 taken possession of the property. (h) The plaint schedule property and other properties in possession of the plaintiff are lying in a single compact plot. The plaintiff put up a barbed wire fence to protect the property in 2003. 17. According to the defendant, 'A' schedule property was assigned to him as per Ext.B7 order dated 09.01.1969 and pursuant to Ext.B7 he was granted Ext.B1 patta. The plaintiff challenged Exts.B1 and B7 in appeal contending that 'A' schedule property is the Kumki land along with his warg property. But the appeal was dismissed as per Ext.B2 order dated 23.08.1977. 18. The Trial Court as well as the First Appellate Court held that the case put forwarded by the plaintiff that his father Mundappa Shetty was in possession of 'A' schedule property right from 1952 could not be proved. The Courts below further held that the contention of the plaintiff that plaint 'A' schedule property came to the possession of the plaintiff as per Ext.A2 partition deed dated 23.12.1972 cannot be accepted. The appeal challenging Exts.B1 and B7 orders was pending and the same became final on 23.08.1977. The Trial Court and the First Appellate Court have recorded that the R.S.A No.1031 of 2012 13 plaintiff had not challenged Ext.B2 and it has become final. 19. The learned counsel for the appellant contended that the Trial Court and the First Appellate Court misconstrued evidence while recording the finding that if the properties adjacent to 'A' schedule property had actually been in possession of the plaintiff on Kumki right, his wife would not have applied for getting it assigned in her favour. The learned counsel for the appellant further contended that the possession of the entire property including 'A' schedule property by the plaintiff was admitted by the defendant in his cross examination. 20. The learned counsel for the appellant further contended that the finding of the First Appellate Court as well as the Trial Court to the effect that there is a contradiction in the date on which the wire fencing was erected is also a misconstruction of evidence. 21. The learned counsel for the appellant also contended that there is convincing evidence to show that 'A' schedule property was enjoyed by the plaintiff and it was the plaintiff who had planted cashew trees now standing thereon. 22. The First Appellate Court as well as the Trial Court held R.S.A No.1031 of 2012 14 that the properties, including the plaint schedule property and the adjacent properties assigned in favour of the plaintiff, his wife and cousin sisters were lying without any boundaries. But the Courts below specifically found that though no separate boundaries were there, that is not an indication that the plaintiff is in possession of 'A' schedule property. The First Appellate Court as well as the Trial Court further held that the evidence of DW1, the defendant that he had planted cashew trees in 'A' schedule property, is corroborated by Ext.C1 report. 23. Going by the proof affidavit, the plaintiff had stated that he had put the wire fencing about 6 months ago. DW1 stated that the barbed wire fence was erected on 13.12.2003. During cross examination, PW1 deposed that he had put up the barbed wire fence somewhere in May 2003. The suit was instituted in December 2003. Taking into account the nature of the contentions, this Court finds that these discrepancies will not affect the rival contentions of the parties. Both the Trial Court as well as the First Appellate Court held that the barbed wire fence was erected on 13.12.2003 immediately before the institution of the suit. R.S.A No.1031 of 2012 15 24. The learned counsel for the appellant mainly canvassed the fact that the properties, including the plaint schedule property, are lying in a single compact plot and that there is only one entrance on the north-east of 'A' schedule property to establish that the plaintiff is in settled possession of the plaint schedule property. The Trial Court as well as the First Appellate Court relying on Exts.C1 report and C2 plan, held that adjacent to the north-west of plaint 'A' schedule property, a road (noted as 'R' in the sketch) runs and hence, the contention of the appellant/plaintiff that he is in possession of 'A' schedule property cannot be accepted. The First Appellate Court also found that the compound wall noted as 'C' on the west of 'A' schedule property was constructed by the defendant for separating 'A' schedule property from the family property of the defendant. On the absence of a pathway from the family property of the defendant, the First Appellate Court held that the defendant wanted to enter the plaint schedule property only to collect cashew nuts during the season and there would not be any pathway to the plaint 'A' schedule property in such situation. The First Appellate Court also took note R.S.A No.1031 of 2012 16 of the fact that the defendant is residing 5 kilometres away from the plaint schedule property. 25. The learned counsel for the appellant also contended that as on the date of Ext.B2, that is 23.08.1977, itself the plaintiff had set up his hostile intention to possess plaint 'A' schedule property, which was well known to the defendant and the fact that he had failed to take any steps to demarcate the property also probabalises the case of the plaintiff. 26. The learned counsel for the defendant contended that the absence of demarcating the boundaries, especially taking into account the nature of cultivation thereon, is not a ground to enter into a conclusion that the plaintiff is in possession of the property. It is further contended that the absence of demarcating boundaries separating one property from the other will not anyway lead to a conclusion that a person in possession of the same is not in actual possession of the property. It has come out in evidence that the wire fencing enclosing plaint 'A' schedule property along with the rest of the properties in possession of the plaintiff was done on 13.12.2003. The First Appellate Court held that the fence put up by R.S.A No.1031 of 2012 17 the plaintiff was a fresh one and the Commissioner could notice granite pillars also lying on the plaint schedule property. 27. Both the Trial Court and the First Appellate Court found that the plaintiff failed to establish that he had been in possession of property right from 1952 as pleaded. It is the specific finding of the Courts below that as on 23.12.1972, the date of execution of Ext.A2 partition deed, the defendant was in possession of the plaint schedule property. The plaintiff failed to establish that he had been in possession of the plaint schedule property as pleaded. 28. The pleadings and evidence do not pursue this Court to infer that the plaintiff exercised control over the property in the assumed character of the owner. There is no evidence to show that the plaintiff maintained exclusive, continuous and uninterrupted possession over the property. The plaintiff failed to establish that his alleged possession is adequate in continuity, in publicity and in the extent to show that his possession is adverse to the defendant. 29. While analysing the evidence in the backdrop of the principles discussed above, this Court cannot sustain the contention of the plaintiff that he has perfected title by adverse R.S.A No.1031 of 2012 18 ## possession over plaint 'A' schedule property. 30. The learned counsel for the appellant further contended that as the Trial Court found that the appellant/plaintiff is in possession of the plaint schedule property, the Courts below ought to have granted relief of prohibitory injunction as prayed for. It is to be noted that the Trial Court has held that the plaintiff was a trespasser to the plaint 'A' schedule property. It is useful to refer to the relevant portion of the finding of the Trial Court in paragraph 22 of the judgment: “22. …....Exhibit C1 report shows that the barbed wire fence put up by the plaintiff is a fresh one. And further, the Commissioner could see some granite pillars lying in the suit property. The plaintiff has not filed any objection to the above said report of the Commissioner. The granite pillars found in the property are the excess pillars converged there to put up the barbed wire fence. If the iron fence was put up during the time deposed by the plaintiff, the same would have started rusting. But the Commissioner could see the fresh iron wire. The Commissioner could not see any sign of rusting to the iron wire used for fencing. Exhibit C1 report probabalises the case of the defendant that the plaintiff put up C1 barbed wire fence marked in Ext.C2 plan on 13.12.2003. Hence I hold that the plaintiff put up the barbed wire fence very recently i.e 13.12.2003 enclosing the property of the defendant unlawfully. As such the plaintiff is a trespasser to the plaint A schedule property.” ## 31. The First Appellate Court confirmed the said finding of the ## Trial Court. ## 32. The learned counsel for the appellant contended that the plaintiff has settled possession of the plaint schedule property. R.S.A No.1031 of 2012 19 ## 33. In Puran Singh v. State of Punjab [(1975) 4 SCC 518, para.12] , the Apex Court has laid down the following tests which may be adopted as a working rule for determining the attributes of ## “settled possession”: “(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; (ii) that the possession must be within the knowledge either express or implied, of the owner or- without any attempt at concealment and which contains an element of animus possidendie. The nature of possession of the trespasser would, however, be a matter to be decided on facts and circumstances of each case (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and (iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser. then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession.” ## 34. In Horam and others v. Rex [AIR 1949 All 564] , a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter may be dispossessed by the true owner only by having recourse to the due process of law for reacquiring R.S.A No.1031 of 2012 20 possession over his property. The view taken by the Allahabad High Court in Horam and Others v. Rex (supra) was approved by the Apex Court in Munshi Ram v. Delhi Administration [AIR 1968 SC 702] and Puran Singh (supra). 35. In Mahadeo Savlaram Shelke v. Pune Municipal Corporation [(1995) 3 SCC 33] the Apex Court held after referring to Woodroffe on 'Law relating to Injunctions'; L.C. Goyle's 'Law of Injunctions'; David Bean's 'Injunctions;' Joyce on 'Injunctions', Modern Law Review and the Law Quarterly Review, leading articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In Shiv Kumar Chadha v. Municipal Corporation of Delhi [1993 (3) SCC 161] the Apex Court observed that injunction is discretionary and that Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court. 36. In Mahadeo case (supra) the Apex Court further held that it is settled law that no injunction could be granted against the true owner at the instance of a person in unlawful possession. 37. The Courts below concurrently held that the plaintiff is a R.S.A No.1031 of 2012 21 ## trespasser. In Poona Ram v. Moti Ram (D) Th.Lrs. And Others (2019 ## KHC 6085) the Apex Court held thus: “13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.” 38. In the present case, the appellant/plaintiff failed to establish that he was in actual possession of the property over a sufficiently long period. It has come out in evidence that both the Courts concurrently found that he erected fencing enclosing the plaint 'A' schedule property on 13.12.2003. 39. This Court is of the view that the plaintiff is not entitled to the prohibitory injunction as prayed for. Both the Courts below concurrently held that the plaintiff failed to perfect title over the plaint 'A' schedule property by adverse possession and that he is R.S.A No.1031 of 2012 22 not entitled to the prohibitory injunction as prayed for. The substantial questions of law are answered accordingly against the plaintiff. The Regular Second Appeal stands dismissed. The parties are directed to bear their respective costs. Sd/K.BABU, JUDGE KAS