Najmuneesa v. Dileep Kumar, M/S Revathi Apartments Private Ltd., and V.N. Radhakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 15[TH] DAY OF MARCH 2022 / 24TH PHALGUNA, 1943 EX.F.A.NO.20 OF 2021** **AGAINST THE ORDER DATED 16.09.2021 IN E.A.NO.125 OF 2020 & E.A.NO.345 OF 2020 IN E.A.NO.356 OF 2019 IN E.P.NO.150 OF 2016 IN O.S.NO.204 OF 2014 OF THE PRINCIPAL SUB COURT,** ## **PALAKKAD** ## **APPELLANT/PETITIONER:** ## **NAJMUNEESA,** **AGED 46 YEARS, W/O. BASHEER, 588/B, MEENKARA, GOVINDAPURAM P.O., MUTHALAMADA, PALAKKAD DISTRICT-678507.** **BY ADVS. DINESH R.SHENOY EBIN MATHEW P.ROHIT PREMANANDAN SHENOY** ## **RESPONDENTS/DECREE HOLDER & RESPONDENTS:** **1 DILEEP KUMAR, AGED 50 YEARS, S/O.KARUPPAN, VALIYAPARAMBU, KOOLIMUTTAM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN-680691. 2 M/S REVATHI APARTMENTS PRIVATE LTD., REP. BY MANAGING DIRECTOR, V.N.RADHAKRISHNAN, NO.0909247/1995, HOUSE NO.1126/11, NEELIPPARA, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD, PIN-678507.** 2 Ex.F.A.No.20 of 2021 **3 V.N.RADHAKRISHNAN, S/O. V.C.NARAYANAN, MANAGING DIRECTOR,** **M/S.REVATHI APARTMENTS PRIVATE LTD., NO.17/2624, SANTHI MADAM, SOUTH NALUVAZHI, PARAVUR VILLAGE, PARAVUR TALUK, ERNAKULAM, PIN-683513.** **BY ADVS. R1 BY RAJESH SIVARAMANKUTTY R1 BY K.V.ANTONY R1 BY ARUL MURALIDHARAN R2 & R3 BY V.A.PRADEEP KUMAR** **THIS EXECUTION FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON 04.03.2022, THE COURT ON 15.03.2022 DELIVERED THE FOLLOWING:** 3 Ex.F.A.No.20 of 2021 ## **JUDGMENT** ## Ajithkumar, J. The appellant filed E.A.No.125 of 2020 in E.P.No.150 of 2016 in O.S.No.204 of 2014 before the Principal Sub Court, Palakkad, under Order XXI, Rule 97 of the Code of Civil Procedure, 1908. The Sub Court as per order dated 16.09.2021 dismissed that obstruction petition. As per the same order, E.A.No.345 of 2020 filed by the appellant seeking to appoint an Advocate Commissioner was also dismissed. This appeal has been filed challenging the legality of the said orders. 2. The 1[st] respondent filed O.S.No.204 of 2014 for recovery of money, which was paid as advance sale consideration in relation to a contract for sale of an immovable property. The respondents 2 and 3 were the defendants. Suit was decreed. The 1[st] respondent filed E.P.No.150 of 2016 and in that execution petition, he brought on sale the plaint schedule property of 4.64 acres of land, which was the subject matter of the agreement. The 4 Ex.F.A.No.20 of 2021 execution court put the southern 2.32 acres of land alone on auction and the 1[st] respondent bid that property for a sum of Rs.70 lakhs. On getting sale certificate, the 1[st] respondent filed E.A.No.356 of 2019 for getting delivery of the property. The court deputed an Amin for effecting delivery. At that time, the appellant filed E.A.No.125 of 2020 staking claim over the petition schedule property, ie., 2.32 acres of land comprised in Sy. No. 49D/4B of Muthalamada Village. 3. The appellant claimed that a total area of 4.64 acres of land belonging to the 2[nd] respondent was entrusted on its behalf by the 3[rd] respondent with the appellant on 20.05.2002. Ever since, she has been in possession and occupation of the said property and residing in the building thereon along with her children. For the last 18 years, she has been in possession and enjoyment of the said property openly, peaceably, without any obstruction and with the knowledge of respondents 2 and 3. By such possession she has perfected title to the property by adverse possession. Therefore, she is not liable to be ejected from the said 5 Ex.F.A.No.20 of 2021 property. But, under the guise of a sale certificate obtained from the Sub Court, Palakkad fraudulently and in collusion between the respondents, the 1[st] respondent is attempting to evict her. Therefore, she filed the application for establishing her right, title and interest in the said property. 4. The 1[st] respondent filed an objection controverting the claims of the appellant. It was contended that such a claim has been raised by the appellant on the behest of respondents 2 and 3. It is totally incorrect that she has been in possession and enjoyment of the property since 20.05.2002. Agreement for sale upon which O.S.No.204 of 2014 arose was executed with the husband of the appellant as a witness. The petition was filed without any bonafides and liable only to be dismissed. 5. Respondents 2 and 3 did not file any counter statement. The execution court recorded oral testimony of PWs.1 and 2 and marked Exts.A1 to A4 on the side of the appellant. No evidence was let in by the respondents. After considering the said evidence and on hearing both sides, 6 Ex.F.A.No.20 of 2021 E.A.No.125 of 2020 and E.A.No.345 of 2020 were dismissed, holding that the appellant failed to establish any legal right so as to avoid delivery of the property. 6. On 08.10.2021, this Court ordered notice on admission to the respondents and ordered to defer delivery of the property in question for a period of ten days. The interim order was extended from time to time and is in force. 7. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 1[st] respondent. 8. The question that arises for consideration is whether the claim raised by the appellant that she has perfected title to the petition schedule property by adverse possession and limitation is proved? 9. PW1, the appellant and PW2, a neighbour, gave oral evidence with respect to the possession of the appellant over the petition schedule property since 20.05.2002. The learned counsel appearing for the appellant would contend that the said evidence in the light of Exts.A1 to A4 proved in 7 Ex.F.A.No.20 of 2021 unmistakable terms that the appellant has been in possession of the property and the possession has been of such a nature that she perfected title by adverse possession. Considering the nature of the claim raised by the appellant, it can first be looked into what is the extent of her burden of proof to sustain her claim under Order XXI, Rule 97 of the Code. This question was considered in detail by the Apex Court in **Shamsher Singh V.S. v. Col.Nahar Singh (D) Thar.Lrs.** **[AIR 2019 SC 4840]** . That was a case where a claim petition under Order XXI, Rules 98 and 99 of the Code was filed after dispossession. The claim of the claimant was that she has perfected title to the property by adverse possession, and therefore, she was entitled to get back possession of the property. The execution court after enquiry held that the claimant failed to prove that he had acquired title by way of adverse possession. The claimant preferred an appeal before the High Court and in the appeal, High Court had set aside the order of the execution court with a direction to put back the claimant into possession of the property. 8 Ex.F.A.No.20 of 2021 10. Of course, in this case, the appellant raised predelivery obstruction under Order XXI, Rule 97 of the Code. Be the claim is under Rule 97 or Rule 99 of Order XXI of the Code, similar is the question to be considered in the light of the provisions of Order XXI Rule 101 of the Code. As per Rule 101, all questions, including questions relating to right, title and interest in the property, arising between the parties to a proceedings on an application under Rule 97 or Rule 99 of the Code shall be determined by the execution court. 11. The Apex Court in **Shamsher Singh (supra)** explained the law on the point as follows: 'Under Order XXI Rule 101 all disputes between the decree-holder and any such person are to be adjudicated by the executing court. A party is not thrown out to relegate itself to the long-drawn-out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree-holder and the other person claiming title on their own right to get it adjudicated in the very execution proceedings.' The Apex Court extracted with approval the powers of the court while dealing with an application under Order XXI Rule 97 of the Code the following from **Nooruddin v.** 9 Ex.F.A.No.20 of 2021 ## - **Dr.K.L.Anand [(1995) 1 SCC 242],** 'The scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. xx xx xx The purpose of amendment under Rule 103 is also that any adjudication made under Rule 101 shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it was a decree. Rule 101, thus, affords an opportunity to get all issues relating to right, title or interest in the property to be determined. xx xx xx In the proceeding under Order XXI Rules 99, 100 and 101, right, title or interest has to be determined and without establishing right, title or interest, the respondent No.1 cannot claim that he should be put back into possession.' (Underline supplied) 10 Ex.F.A.No.20 of 2021 12. Therefore, the claim raised by the appellant based on adverse possession and limitation is obliged to be decided in this proceeding and the appellant is obliged to prove with cogent evidence the necessary parameters, if she has to succeed. The learned Sub Judge had considered the claim keeping in mind the said principles, and had passed the impugned order. 13. The categoric plea of the appellant is that she was put in possession of the property by the 2[nd] respondent on 20.05.2002, meaning thereby that she is a permissive occupier. Even on a forensic consideration of the contentions of the appellant, it cannot be inferred from which date the appellant started hostile possession of the property. No evidence was let in on this point by the appellant. Specific pleading followed by proof as to commencement of hostile possession is sine qua non for establishment of adverse possession. The continuity, openness, peaceable enjoyment with hostile animus have to be proved. In the absence of proof for commencement of hostile possession, the rest of the 11 Ex.F.A.No.20 of 2021 factors like openness, peaceable enjoyment and continuity in possession, etc are inconsequential. The Apex Court in **Karnataka Board of Wakf v. Govt. of India [(2004) 10 SCC 779]** has held thus,- '11. In the eyes of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. 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 the 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 is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See **S.M.Karim v. Bibi Sakina [AIR 1964 SC 1254], Parsinni v. Sukhi [1993 AIR SCW 3606]** and **D.N. Venkata Rayappa v. State of Karnataka [AIR 1997 SC 2930].** ) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are 12 Ex.F.A.No.20 of 2021 to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. 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 his adverse possession - **Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [AIR 1996 SC 869].** (Underline supplied) 14. The bar of limitation is created under Article 65 of the Limitation Act, 1963. As per the provision a suit for possession on the basis of title has to be filed within 12 years from the date the possession becomes adverse. If the person claimed to be in possession fails to prove adverse possession qua the disputed land in his favour, the suit cannot be held to be barred by limitation. 15. In the light of the law governing the appellant's 13 Ex.F.A.No.20 of 2021 claim as noted above, extracting of the exact claim of the appellant and the defence as are available in the claim petition filed by the appellant and the objection filed by the 1[st] respondent will hep to appreciate the rival claims appropriately. Relevant portions are extracted below: ## Claim petition, “The petition schedule property was handed over to the petitioner by the 3[rd] respondent on behalf of 2[nd] respondent to the petitioner on 20.05.2002. Since then the petition schedule property is in actual physical possession and enjoyment of the petitioner. xx xx xx The petitioner has valid documents to prove her possession of the petition schedule properties for 18 years openly, peacefully, without any obstruction, with the knowledge of the respondent Nos.2 and 3 and have perfected title by adverse possession.” Defence of the 1[st] respondent, “In the petition stated that the petition schedule property is in actual physical possession and enjoyment by the petitioner since 20.05.2002 onwards are absolutely false and untrue, it is frivolous and vexatious. The petition schedule property was handed over by 3[rd] respondent/judgment debtor to the petitioner which is a fabricated story.” 14 Ex.F.A.No.20 of 2021 16. In order to prove the said claim, evidence available on record is the oral testimony of PWs.1 and 2 and of course Exts.A1 to A4. Only if it is proved that the appellant has been in possession of the property with the hostile animus for a continuous period of 12 years, she can succeed. Such possession shall be nec vi, nec claim, and nec precario. What PW1 stated is that she was put in possession of the property by the 3[rd] respondent on 20.05.2002. During crossexamination she more clearly deposed that she knew the 3rd respondent Sri.Radhakrishnan and the property was entrusted with her by him. It was 4.64 acres; obviously to which the petition schedule property forms a part. She further stated that her husband was an employee under respondents 2 and 3 and it was in that way she knew respondents 2 and 3. 17. PW2 deposed in court that the appellant has been residing in the building in the petition schedule property for about 20 years. How the appellant has come into possession of that property, in what capacity she has been in occupation of the same and what is her right in the property are facts not 15 Ex.F.A.No.20 of 2021 known to PW2. 18. A Commissioner was appointed in the execution proceedings. It is seen from the records that when the Commissioner inspected the property, the appellant was in occupation of the building in the petition schedule property. The Commissioner identified the southern part of the total 4.64 acres of land where is the building situated. From the said facts, it can be seen that the appellant has been residing now in the building in the disputed property. But the evidence is totally insufficient to prove that when she started occupying the building and whether she has been in possession of the disputed land. Ext.A1 is an Aadhaar card issued on 18.05.2012 to the appellant. Ext.A2 is an original voters’ identity card dated 15.06.2015 in the name of the appellant. Exts.A3 and A4 are ration cards dated 06.06.2017 and 19.04.2012 respectively in the name of the appellant. The address of the residential building in the disputed property is shown in these documents. On the strength of the said documents, the learned counsel for the appellant would 16 Ex.F.A.No.20 of 2021 contend that her continuous possession of the property is well established. 19. Even if it is taken that the appellant succeeded in proving that she has been residing in the building in the disputed property for such a long period, pleadings and evidence are absolutely lacking to establish a claim of title by adverse possession. 20. From the pleadings extracted above, it is quite clear that the appellant is a permissive occupier. As long as she is not able to prove that on which date her possession has become hostile to the owner of the property, she would not be entitled to contend that she possesses the property openly, peaceably and with an animus hostile to the interest of its owner. The 1[st] respondent categorically denied the claim of the appellant that she has been possessing the property as she claimed, but no reliable evidence in order to establish that her possession has been with a hostile intention so as to acquire title to the property has come on record. In the said circumstances, we are not able to ascribe to the submission of 17 Ex.F.A.No.20 of 2021 the learned counsel for the appellant that the claim of adverse possession of the appellant is proved. Accordingly, we answer this point against the appellant and confirm the findings of the execution court. We hold that the appeal is liable to be dismissed. Hence the appeal is dismissed without any order as to costs. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr