Michael Philipose v. Vas Pillai Choondamala & Krishnamma Lalitha Choondamala

RSA No.169/2014 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 10[TH] DAY OF AUGUST 2023 / 19TH SRAVANA, 1945** **RSA NO. 169 OF 2014** **AGAINST THE JUDGMENT IN OS 467/1985 OF PRINCIPAL MUNSIFF COURT,** ## **NEDUMANGAD** **AS 80/1990 OF II ADDITIONAL SUB COURT,THIRUVANANTHAPURAM** ## **APPELLANT/APPELLANT/PLAINTIFF:** MICHAEL PHILIPOSE, S/O. MICHAEL, THADATHARIKATHU VEEDU, THARATTAYIL, CHEKKAKONAM MURI, KARAKULAM VILLAGE. BY ADV SRI ARAVIND S.S ## **RESPONDENTS/RESPONDENTS/RESPONDENTS:** 1 VASU PILLAI CHOONDAMALA, CHARIKUVILAKATHU VEEDU, ANADMURI, PERINGAMALA VILLAGE. 2 KRISHNAMMA LALITHA CHOONDAMALA, CHARIKUVILAKATHU VEEDU, ANADMURI, PERINGAMALA VILLAGE. BY ADV SRI M.DINESH THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING **:** RSA No.169/2014 2 ## **T.R. RAVI, J.** **--------------------------------------------** ## **R.S.A.No.169 of 2014** **--------------------------------------------** **Dated this the 10th day of August, 2023** ## **JUDGMENT** The plaintiff in a suit for declaration of title and recovery of possession of the plaint schedule property having an extent of 35 cents, having lost before the trial court and the first appellate court has preferred this appeal. Parties are referred to as per their status in the trial court. The case of the plaintiff is that an extent of 35 cents in Sy.No.2245/39 of Peringamala Village originally belonged to his father. On the death of his father, the plaint schedule property along with other properties devolved on his mother, the plaintiff, and his two siblings as per release deed No.3344/82. The 3/4th right of the mother and the other siblings were released in favour of the plaintiff and the plaintiff became entitled to a total extent of 55 cents. An extent of 20 cents was sold and the remaining property has been scheduled in the plaint. The defendants are neighbouring owners. When the defendants attempted to trespass into the plaint schedule property, the plaintiff had filed O.S.No.333 of 1984 praying RSA No.169/2014 3 for a decree of permanent injunction restraining the defendants from trespassing into the plaint schedule property and constructing structures therein. The suit was decreed on 29.9.1984. Exts.A1 and A2 are the judgment and decree in the said suit. The present suit was filed alleging that, on 15.1.1985, within six months of the earlier decree, the defendants trespassed into the property, constructed a small structure, and started occupying the structure. 2. The defendants filed a written statement alleging that the plaintiff did not have title over the property. The defendants sought to trace title through certain mortgages executed. According to the defendants, the entire property had been conveyed to strangers, and the plaintiff has no possession or title over the plaint schedule property. A contention was taken that the release deed executed in favour of the plaintiff was fraudulent. Along with the judgment and decree of the earlier suit, the plaintiff had also produced the release deed of 1982, which is, however, not marked in the absence of oral evidence being tendered by the plaintiff. 3. The defendants had also claimed kudikidappu right. The said issue was referred to the Land Tribunal. By order dated 18.2.1989 in O.A.No.115/87, the Land Tribunal, Nedumangad, entered a finding that the defendants have failed to prove the RSA No.169/2014 4 kudikidappu right. The Tribunal also found that as per Ext.C1 report of the Revenue Inspector, there was no kudikidappu existing in the property. 4. The trial court dismissed the suit for the reason that the plaintiff did not enter the box and get the title deed marked. The appellate court confirmed the judgment of the trial court and also found that the plaintiff did not prove the extent of the plaint schedule property, which has been trespassed upon. The second appeal has been preferred, being aggrieved by the judgments of the trial court and the first appellate court. Notice before admission was issued to the respondents. The respondents entered appearance. The case was, hence, finally heard at the stage of admission. Based on the contentions taken in the second appeal, the following questions of law arise for consideration. (i) Whether the courts below were justified in dismissing the suit entirely, when on facts it is evident that the defendants were not in possession as on 29.9.1984? (ii) Whether the courts below were justified in refusing relief, particularly when the defendants have not been able to show a better title? RSA No.169/2014 5 5. The counsel for the appellant relied on the judgment in **Nair Service Society Ltd. v. Ref.Father K.C. Alexander** reported in **[AIR 1965 SC 1165]** . The question that was considered by the Hon'ble Supreme Court was whether a suit based on prior possession alone could be filed after the period of six months contemplated in Section 9 of the Specific Relief Act, 1877. The Hon’ble Supreme Court considered the judgment in **Lachman v. Shambu Narain** reported in **[(1911) 33 ALL.174]** rendered by a Full Bench, which had expressed a view that the remedies under Sections 3 and 9 of the Specific Relief Act, 1877 are mutually exclusive. The Full Bench had held that while a suit for possession based on title can be filed under Section 8, Section 9 contemplates a summary remedy of a suit based on prior possession, which is to be instituted within six months from the date of dispossession. The Full Bench held that after the expiry of six months, a suit based on title alone is maintainable. The Hon'ble Supreme Court disagreed with the said reasoning of the Full Bench and held that a suit based on possession is competent even after the expiry of six months. The Apex Court further held that if in a suit for possession filed beyond the period of six months, questions of title are raised by the defendant, the plaintiff must establish a better title or fail. It was held that a suit on RSA No.169/2014 6 prior possession within 12 years is not barred, and title need not be proved unless the defendant can prove one. 6. Reliance was also placed on the judgment of a learned Single Judge of this Court in **E.N.Chandran v. Valsan Matathil** reported in **[2017 (3) KLT SN 16 (Case No.21)]** to submit that once the defendant had suffered a decree of injunction based on the possession of the plaintiff, he cannot contend that he was in possession of the property. It is submitted that in the case on hand, there is also a finding rendered by the Land Tribunal, which is a Tribunal of exclusive jurisdiction, that there was no kudikidappu existing in the property. It is hence submitted that the possession of the defendants can only be after the date of the judgment and decree produced as Exts.A1 and A2. The counsel for the defendants submitted that the plaintiff, having not proved his title by producing his document of title and examining himself, cannot maintain a suit for possession based on title. As regards the earlier suit, it is contended that the said suit was not a suit on title. 7. I have considered the arguments put forward by the counsel on either side. 8. The trial court, as well as the appellate court, have nonsuited the plaintiff for the reason that the plaintiff did not mount the box and did not produce the document of title, which is the release RSA No.169/2014 7 deed executed in 1982 by his mother and other siblings. The courts were of the view that since the suit is based on title and since the plaintiff did not prove the title, the suit needs to be dismissed. Neither the trial court nor the appellate court considered the question of the right of a plaintiff based on his prior possession. Exts.A1 and A2 judgments and decree would show that as of 29.9.1984, the date of the judgment, the defendant was not in possession. There is also a decree of prohibitory injunction restraining the defendants from trespassing into the plaint schedule property and constructing structures. The allegation in the suit is that on 15.1.1985, the defendants trespassed into the property and constructed a structure. There is no case for the defendants that they are entitled to do so legally. Necessarily, it is a violation of Exts.A1 and A2 judgment and decree. When the present suit was filed, the contention of the defendants was that they were entitled to Kudikidappu right over the property. The said question was referred to the Land Tribunal, and the Land Tribunal answered in the negative. The defendants' possession can hence be only as that of a trespasser and cannot have any legal colour either on the basis of a better title than that of the plaintiff or based on right under the Kerala Land Reforms Act. Once the plaintiff is able to show that he had prior possession, that there was a decree for an injunction against the defendants from committing trespass, and that the defendants had failed to prove their right to remain in the RSA No.169/2014 8 property as kudikidappukaran, the Courts below ought not to have dismissed the suit in its entirety for the sole reason that title is not proved. The Hon'ble Supreme Court in **NSS Society Ltd. (supra)** categorically held that even if the plaintiff does not prove his title, he can still maintain a suit based on prior possession. While doing so, the Hon'ble Supreme Court has extracted the following words from the judgment of the Madras High Court in **Mustapha Sahib v. Santha Pillai reported in [1900 ILR 23 Madras 179]** ; “…..... ….. that a party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recovery by virtue of the possession he had held before the ouster even though that possession was without any title”. 9. That is to say, even if the plaintiff does not have title, he can still maintain the suit based on prior possession. In the case on hand, the failure to prove title is only because the title deed was not produced and marked by examining the plaintiff. The appellant is, hence entitled to succeed in the second appeal. 10. The appeal is allowed. The judgments and decrees of the Principal Munsiff Court, Negumangad in O.S.No.467/1985, and the Second Additional Sub Court, Thiruvananthapuram in A.S.No.80/1990, are set aside. The suit is decreed directing the defendants/ RSA No.169/2014 9 respondents to vacate the premises after removing the structure that has been constructed, at their cost, within three months from the date of receipt of a certified copy of this judgment and in case of failure of the defendants to so vacate, the plaintiff may get the defendants evicted through court at the cost of the defendants. **==> picture [324 x 63] intentionally omitted <==** Sd/- **T.R. RAVI JUDGE** dsn