M.N. Parthasarathi v. A.K. Santha and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 3RD DAY OF APRIL 2018 / 13TH CHAITHRA, 1940 SA.No. 538 of 2001 (E) AGAINST THE JUDGMENT AND DECREE DATED 18-01-2001 IN AS NO.128/1994 of II ADDITIONAL DISTRICT COURT,ERNAKULAM AGAINST THE JUDGMENT AND DECREE DATED 22-12-1993 N OS NO.54/1992 of SUB COURT, MUVATTUPUZHA ## APPELLANT/PLAINTIFF/1ST RESPONDENT: M.N.PARTHASARATHI, S/O.NEELAKANTAN, MOOTHEDATHU HOUSE, RAMAMANGALAM KARA, MARADY VILLAGE, MOOVATTUPUZHA. BY ADV. SRI.P.VISWANATHAN ## RESPONDENTS/DEFENDANTS/APPELLANT AND RESPONDENTS 2 TO 4: 1. A.K.SANTHA, W/O.PURUSHOTHAMAN, RESIDING AT PARAPPILLIL, MOOTHEDATHU HOUSE, KAVUMPADY, MOOVATTUPUZHA. 2. M.P.SHEEJA, D/O.PURUSHOTHAMAN,RESIDING AT PARAPPILLIL, MOOTHEDATHU HOUSE, KAVUMPADY, MOOVATTUPUZHA, NOW RESIDING AT KAMALA NIVAS, E.M.G.JUNCTION, VIKAS BHAVAN P.O., TRIVANDRUM. 3. M.P.SHIJU, S/O.PURUSHOTHAMAN,RESIDING AT PARAPPILLIL, MOOTHEDATHU HOUSE, KAVUMPADY, MOOVATTUPUZHA. NOW RESIDING AT KAMALA NIVAS, E.M.G.JUNCTION, VIKAS BHAVAN P.O., TRIVANDRUM. 4. MOHANAN, S/O.SANKARAN, THARIKKUZHI HOUSE, PERINGAZHA KARA, MARADI VILLAGE, MOOVATTUPUZHA. R1 TO R3 BY ADVS. SRI.B.KRISHNA MANI SRI.V.PREMCHAND SMT.ASHA JYOTHI R4 BY ADV. SRI.K.SUBASH CHANDRA BOSE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-04-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J. -------------------------------------S.A. No.538 of 2001 -------------------------------------Dated this the 3[rd] day of April, 2018** ## **JUDGMENT** This second appeal is at the instance of the plaintiff in a suit for recovery of possession of the plaint schedule property on the strength of his title and for arrears of rent in respect of a building possessed by the 4[th] defendant. The trial court decreed the suit as prayed for. The judgment and decree of the trial court was reversed in first appeal by the learned Additional District Judge. 2. Brief facts, relevant for our purpose, are as follows: Appellant and respondents 1 to 3 are close relatives. In fact, 1[st] defendant is the sister-in-law of the appellant. Respondents 2 and 3 are her children. Plaint schedule property originally belonged to the 1[st] respondent's husband Purushothaman (brother of the appellant) as per Ext.A1 sale deed dated 25.06.1968. The property was assigned by deceased Purushothaman to the appellant. It is the case of the appellant that as he was away for long time to pursue his employment, he entrusted management of the property to his brother Purushothaman. There is a shed in the plaint schedule property and the 4[th] respondent is conducting a workshop therein as tenant. It is the case of the appellant that the 4[th] 2 SA No.538 of 2001 respondent has defaulted paying rent to him. From the records, it is seen that there was an earlier round of litigation between the appellant and respondents 1 to 3. A suit for declaration of title and injunction was filed by the appellant against respondents 1 to 3 as O.S.No.490 of 1984 before the Court of Munsiff, Muvattupuzha. Ext.B2 is the judgment in that suit. The appellant lost that suit, against which he preferred A.S.No.146 of 1987 before the Sub Court, Ernakulam. The lower appellate court partly allowed the appeal and the appellant's title over the plaint schedule property was declared. However, a decree for permanent prohibitory injunction against respondents 1 to 3 was declined finding that the appellant was not in possession of the property as on the date of the suit. It is an admitted case that the judgment and decree in A.S.No.146 of 1987 has become final. Ext.A2 is the certified copy of the judgment in A.S.No.146 of 1987 and Ext.A3 is the decree. It is the contention of the appellant that the respondents 1 to 3 have no manner of right to hold the property and therefore, the present suit for declaration of title and recovery of possession on the strength of his title. 3. Respondents 1 to 3 resisted the suit by contending that it is not maintainable for the reason that the suit claim is barred by Order II Rule 2 of the Code of Civil Procedure, 1908 (in short, “the Code”). It is also contended, inter alia, that the appellant/plaintiff's right over the 3 SA No.538 of 2001 property, if any, had been lost by adverse possession and limitation. 4[th] respondent/defendant also opposed the suit by contending that he is not liable to pay any amount to the appellant. 4. Before the trial court, five witnesses were examined on the side of the respondents. Appellant/plaintiff did not adduce any oral evidence. Exts.A1 to A7 and B1 to B28 are the documents considered by the trial court. 5. The substantial questions of law raised in the memorandum of appeal are (a) Is the lower appellate court justified in finding that the appellant herein has lost his right over the property by way of adverse possession and limitation and is not entitled to get recovery of possession with mesne profits? (b) Is it proper for the lower appellate court to jump into a wrong conclusion without even trying to satisfy itself that the essentials of a claim of adverse possession are proved affirmatively by the defendant? (c) Whether the lower appellate court has failed to differentiate between adverse possession and permissive possession and to consider the well settled position of law that mere permissive possession, for how so ever length of time, will not transform into adverse possession? (d) Whether the lower appellate court was justified in over looking 4 SA No.538 of 2001 the testimony of DW1 that after Ext.A1 document the defendants were allowed to occupy the plaint schedule property, which clearly destroys the claim of adverse possession and establishes that it is permissive possession? (e) Is it proper for the lower appellate court to decide in favour of adverse possession since there is already a finding, by a suit in a previous proceedings between the same parties, to the effect that the plaintiff is the absolute owner and has perfect title of the property in dispute? (f) Whether the lower appellate court has failed to apply the principles of res judicata since the defendants had ample opportunity to disprove the title of the plaintiff by way of adverse possession in the earlier suit for declaration of title between the same parties? (g) Whether the lower appellate court was justified in relying upon the testimony of the highly interested witnesses examined on the side of the defendant? (h) Whether the lower appellate court was justified in wrongly fixing the onus of proof on the plaintiff and deciding the case on the basis that the plaintiff has failed to discharge the burden of proof, which is wrongly fixed on him, since it is against the well settled position of law governing burden of proof? At the time of admission, a learned Single Judge had issued notice to the 5 SA No.538 of 2001 respondents on the above substantial questions of law. 6. Heard the learned counsel for the appellant and the contesting respondents. 7. The trial court, referring to the pleadings and the admission of DW1 in the box, found that the plea of adverse possession and limitation raised by the contesting respondents could not be sustained. It also repelled the plea raised by the respondents that the suit is barred by the principles in Order II Rule 2 of the Code. 8. The lower appellate court, after re-appreciating the contentions of the parties, rejected the plea raised by the respondents that the suit claim is hit by Order II Rule 2 of the Code. However, the lower appellate court found that claim of the appellant for recovery of possession on the strength of title has been barred by adverse possession and limitation. 9. Learned counsel for the appellant contended that the lower appellate court committed a serious error in reversing a well considered judgment of the trial court. It is also contended that the plea of adverse possession was raised for the first time in this suit. In the earlier round of litigation, where declaration of title and injunction were sought for by the appellant, no such plea was raised by the contesting respondents. Instead, they contended that Ext.A1 is a benami transaction. As per Ext.A2 6 SA No.538 of 2001 judgment, the learned Subordinate Judge in A.S.No.146 of 1987 clearly found that Ext.A1 document did not reveal a benami transaction. Learned Subordinate Judge candidly stated the reasons for arriving at the conclusion that Ext.A1 was not a benami transaction. That finding has become final. No plea of adverse possession was raised by the respondents in the first round of litigation. Therefore, that contention would attract the wrath of Explanation IV of Section 11 of the Code. 10. Learned counsel for the appellant drew my attention to the candid admission made by DW1 that deceased Purushothaman and after his death, the respondents possessed the property on the permission granted by the appellant/plaintiff. It is fundamental that for constituting adverse possession, the starting point of possession must be with a hostile animus. The fundamental rule is that holding property on the basis of any permission or any derivative title for any number of years will not constitute adverse possession. In the absence of pleading regarding adverse possession in the first round of litigation and in the light of a crystal clear admission by the respondents in the present suit that they were holding the property on account of the permission granted by the appellant, the finding of the lower appellate court that the suit claim is hit by adverse possession and limitation is without any legal basis. Therefore, I have no hesitation to hold that the reasoning of the lower appellate court to non-suit the 7 SA No.538 of 2001 appellant on the ground of adverse possession and limitation is unsustainable. Hence I set aside the same. 11. Another contention raised by the learned counsel of the appellant is that the suit is not hit by Order II Rule 2 of the Code. The provision reads as follows: ## _“_ _**2.Suit to include the whole claim** .- (1) Every_ _suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court._ _(2)Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished._ _(3)Omission to sue for one of several reliefs.-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such relief; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted._ 8 SA No.538 of 2001 _**Explanation** .-For the purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”_ 12. On a reading of the provision, it is clear that the appellant is bound to include whole of the claim in respect of the same cause of action in a suit, otherwise the prohibition in Sub-rule (2) of Order II Rule 2 will prevent him from claiming any relief later, based on the cause of action. It is a basic principle that for understanding the nature of a suit, the averments in the plaint will have to be considered in its entirety. In the first round of litigation, the appellant claimed that he was in possession of the property and there was a threat to his title. His apprehension was that the respondents were likely to trespass upon the property. By virtue of Exts.A2 and A3 judgment and decree, it has now been concluded that the appellant holds title to the property as per Ext.A1. However, the lower appellate court found that on the date of suit, the appellant was not in possession and therefore, his prayer for prohibitory injunction was declined. Exts.A2 and A3 were pronounced in the year 1989. The present suit was filed with a substantive prayer for recovery of possession in the year 1992, that is, well within the period of limitation prescribed under Article 65 of the Limitation 9 SA No.538 of 2001 Act, 1963. In the second suit, it has been clearly pleaded that the appellant is out of possession of the property and therefore, he claimed recovery of possession on the strength of title. The cause of action for the first suit is entirely different from the cause of action for the second suit. Therefore, at the first blush itself, it will be evident that the embargo in Order II Rule 2 of the Code will not apply to this suit. 13. Learned counsel for the respondents relied on the decision in **Arabinda Sarma v. Landaru Roy (AIR 2015 Gauhati 45)** , wherein a learned single Judge held that the suit before him was barred by Order II Rule 2 of the Code. It is seen from the judgment that in the first round of litigation,the plaintiff had claimed that he was entitled to get khas possession of the suit land by evicting the defendant. But, still he did not seek a claim for recovery of possession. Only in the second round of litigation he had sought such a relief. On that reasoning, the learned single Judge held that the claim in the second suit is hit by order II Rule 2 of the Code. In this case, the fact situation is entirely different. Therefore the principles in **Arabinda Sarma** 's case cannot be applied. 14. Having regard to the facts and circumstances borne out from the records and after hearing the learned counsel on both sides, I am of the view that the lower appellate court erred in non-suiting the appellant/plaintiff on the ground of adverse possession and limitation, a 10 SA No.538 of 2001 plea which could have been taken by the respondents in the first round of litigation. Having omitted to do so, they cannot now be heard to say that the suit is hit by Order II Rule 2 of the Code by virtue of Explanation IV of Section 11 of the Code. The lower appellate court is right in holding that the claim of appellant/plaintiff is not barred under Order II Rule 2 of the Code. Therefore, the substantial questions of law are decided in favour of the appellant. In the result, the appeal is allowed. The judgment and decree passed by the lower appellate court is set aside and that of the trial court is restored. Parties are directed to suffer their respective costs. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** **cks** SA No.538 of 2001 11 **A.Hariprasad, J. S.A.No.538 of 2001 JUDGMENT 3[rd] April, 2018**