Narayanan and others v. Kausallia (R.S.A. No. 841 of 2005)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** ## **WEDNESDAY, THE 11TH DAY OF JANUARY 2012/21ST POUSHA 1933** ## **RSA.NO. 841 OF 2005 ( )** **--------------------------------------** **AS.4/2002 OF SUB COURT,KATTAPPANA OS.134/2000 OF MUNSIFF COURT, IDUKKI** ## **APPELLANT(S)/APPELLANTS:** **----------------------------------------------** **1. NARAYANAN, S/O. KUNJAPPY, THADATHIL HOUSE, PAZHAYARIKANDAM KARA KANJIKUZHY VILLAGE, THODUPUZHA TALUK.** **2. THANKA, W/O. NARAYANAN, -DO- -DO-.** **3. SHINY, D/O. NARAYANAN, -DO- -DO-.** **4. BINU, S/O. KUMARAN, PERUMKUNNATHU HOUSE, PAZHAYARIKANDAM KARA KANJIKUZHY VILLAGE, THODUPUZHA TALUK.** ## **5. JAYAN, S/O. NARAYANAN, THADATHIL HOUSE, PAZHAYARIKANDOM KARA, KANJIKUZHY VILLAGE THODUPUZHA TALUK.** ## **6. AJAYAN, S/O. NARAYANAN, -DO- -DO-.** ## **BY ADVS.SRI.N.RATHEESH SMT.SUMA RATHEESH** ## **RESPONDENT(S)/RESPONDENT/PLAINTIFF:** **-------------------------------------------------------** **KAUSALLIA, D/O. KALLYANI, KULAMATTATHIL HOUSE, PAZHAYARIKANDAM NOW RESIDING AT KIZHAKKEL HOUSE, THATTEKANNI KARA KANJIKUZHY VILLAGE, THODUPUZHA TALUK IDUKKI DISTRICT.** **BY SRI.P.C.JOHNEY (COVEATOR) BY SRI.K.S.HARIHARAPUTHRAN BY SRI.P.J.JOSEPH BY SRI.GEORGE MATHEW BY SRI.A.V.TELLES BY SRI.VIJO JOSE** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.841 of 2005 ==================================== Dated this the 13[th] day of January, 2012** ## **J U D G M E N T** Dispute is regarding prior possession of three acres of nonpatta land, in Sy.No.61/1 of Kanjikuzhy Village and building thereon. Respondent claimed that her mother, Kalyani got possession of the suit property and building and was residing there until her death on 15.07.2000. In 1973-74 respondent was sent in marriage. Until 1981, she resided in the building in the suit property and later shifted residence to the house of her husband. According to the respondent, even after the death of Kalyani on 15.07.2000 first appellant who was collecting yield (allegedly on behalf of the respondent) was giving the income to the respondent but later he stopped that practice. It is the further case that first appellant denied title of respondent in the suit property and remained in illegal possession thereof. Hence the suit for recovery of possession on the strength of possessory right. Second appellant is the sister of Kalyani. First appellant is the husband of second appellant and appellants 3 onwards are children of appellants 1 and 2. They contended that suit property **R.S.A. No. 841 of 2005** ## -: 2 :- was purchased by the first appellant from D.W.3 in the year, 1969 for consideration of Rs.400./-. Kalyani was deserted by her husband. Thereafter first appellant took Kalyani to his house. Second appellant and Kalyani could not move together. Hence first appellant provided a separate residence for Kalyani in the suit property. According to the appellants, suit property and building belonged to and is in the possession of first appellant. Either Kalyani or respondent never had any right in the suit property. Learned Munsiff, Idukki upheld the case of respondent and granted a decree for recovery of possession on the strength of prior possession. That decree was confirmed by the learned Sub Judge, Kattappana in A.S. No.4 of 2002. Hence this Second Appeal urging the following substantial question of law: Whether the courts below are right in applying the principle contained in **Krishnankutty Nair** **v. Subramanyan** (1998 [1] KLT 886) whereby though plaintiff claimed declaration of the title of the entire extent of the property but proves only partial title over the property which covers the building situated therein, plaintiff is entitled to obtain title of the entire large extent of the land and the building? ## **R.S.A. No. 841 of 2005** -: 3 :- 2. It is contended by learned counsel for appellants that the said decision has no application to the facts of the case. According to the learned counsel, that was a case of prior possession of plaintiff proved on the strength of which he was allowed to recover possession of the property though he failed in proving proprietory right. It is contended by learned counsel that in this case neither possession of respondent or that of her predecessor in interest is pleaded or proved. In the absence of that, finding of the courts below relying on the decision above stated is not correct. It is also argued by learned counsel that even if it is assumed that Kalyani was in occupation or possession of the building, that did not ipso facto lead to the conclusion that she was in possession of the suit property which extends to three acres. It is contended that evidence of first appellant as D.W.1 and that of D.W3 as to the first appellant purchasing the suit property was brushed aside for no sufficient reason. Learned counsel has requested that finding of the courts below though concurrent requires interference. 3. Learned counsel for respondent contended that parties are tribals and since the suit property is non-patta land, there could be no proprietory right and what is relevant for decision is only possessory right claimed by the parties. It is contended by learned counsel that documents produced by ## **R.S.A. No. 841 of 2005** ## -: 4 :- parties would show that building in the suit property belonged to Kalyani. In the absence of other evidence it must be taken that the building was constructed by Kalyani. That indicates possession of the suit property as well particularly in the absence of any contra evidence. According to counsel the decision **Krishnankutty Nair v. Subramanyan** (supra) is squarely applicable and no interference is required with the concurrent finding entered by the courts below. 4. Though appellants had disputed that respondent is the daughter of Kalyani, that contention is not pursued before me and Exts.X1 and X2 show that respondent is the daughter of Kalyani. 5. Admittedly the suit property is is non-patta land and there could be no documentary evidence regarding title nor could any of the parties claim proprietory right over the property. Therefore the controversy has to be resolved based on possessory right claimed by the parties. Respondent claimed that her mother, Kalyani got possession of the said property. Exhibit A1 is the ownership certificate issued by the local authority. Exhibit A2 is a receipt of the year 2000 to show payment of tax for the land in the suit property. Exhibit A3 is extract of assessment register of building in the suit property for 1993-94 to 2000-01. Exhibit A4, death certificate of Kalyani ## **R.S.A. No. 841 of 2005** ## -: 5 :- shows that she died on 15.07.2000. Respondent gave evidence as P.W.3. P.W.1 is the Headmaster who proved Exts.X1 and X2. P.W.2 is the Advocate Commissioner who submitted Exts.C1 and C2 report. 6. On the side of appellants, first appellant was examined as D.W.1. D.W.2 is the 5[th] appellant, son of first appellant. He was examined to show that he purchased rubber saplings as per Ext.B7, bill for planting in the suit property. Exhibits B4 and B5 series are produced to show that when Kalyani was ill disposed of, first appellant was treating her. Exhibits B1 to B3 are receipts for payment of tax for the building in the suit property for the period from 1995, 2000 and 2001. No doubt D.W3 has given evidence to show that he sold the suit property to the first appellant. But there is no document to evidence transfer of possession. Nor is there any evidence to show that D.W.3 was in possession of the property during the time he said to have transferred it to the first appellant. Hence evidence of D.W.3 is no avail to the first appellant. 7. So far as Ext.B7, bill for purchase of rubber saplings is concerned, even if it is held that those rubber saplings were planted in the suit property, if it is otherwise shown that property was in the possession of Kalyani, it is only an act done by the first appellant on behalf of Kalyani. It is not disputed that ## **R.S.A. No. 841 of 2005** ## -: 6 :- Kalyani was deserted by her husband and going by the version of appellants, Kalyani was taken by the first appellant for stay with him and as she could not move with the second appellant, wife of first appellant, first appellant put up separate residence for Kalyani in the suit property. 8. Exhibits A1 to A3 shows that suit property was in the possession of Kalyani. No doubt as per the law in India, land and building could be owned by different persons. But that situation arises in cases where the land is proved to be belonging to one and building is owned by another. In the absence of better evidence from the side of appellants, Exts.A1 to A3 are to be accepted and show that Kalyani was having control and possession over the suit property. 9. True that appellants produced Exts.B1 to B3 receipts for payment of revenue for 1995-2001. That does now show that first appellant is the owner of the building in the suit property. Payment of tax as per Exts.B1 to B3 can only be taken as on behalf of Kalyani or in her name. 10. It is contended by learned counsel that there are no proper averments in the plaint to show that respondent or Kalyani was in possession of the suit property and at any rate, first appellant trespassed into the suit property. I have been taken through the averments in paragraph 3 of the plaint where **R.S.A. No. 841 of 2005** ## -: 7 :- respondent says that Kalyani purchased the suit property and began to reside in the building thereon with the respondent. In paragraph 4 it is stated that at the time Kalyani fell ill, respondent and her relatives were manging the suit property. Respondent got the assistance of appellants in looking after the suit property at a time she was staying with her husband. Appellants were accounting to the respondent for the income from the suit property. In paragraph 5 it is stated that after death of Kalyani, respondent contested election to the local authority and was elected. In that circumstance, herself and children could not care for the suit property and exploiting that situation appellants began to appropriate the income from the suit property. Paragraph 6 states that appellants told the respondent that they will not allow the latter to take yield from the suit property. In paragraph 7 it is stated that appellants are in illegal possession and enjoyment of the suit property from 26.11.2000 onwards. Thus going by the averments in the plaint what is stated is that respondent was in possession and enjoyment of the property until 26.11.2000 and thereafter appellants are in unlawful possession thereof. 11. I stated that parties have no proprietory right over the property since it is non-patta land. Evidence on record justified the plea of respondent regarding possession of suit ## **R.S.A. No. 841 of 2005** ## -: 8 :- property for herself and before that, for her mother. Possessory right is next to proprietory right and is heritable. In **Krishnankutty Nair v. Subramanyan (supra)** on the strength of prior possession of the property with the plaintiff who failed to prove proprietory right, recovery of possession was granted. There is no reason why that principle should not apply to the facts of the case. 12. Courts below concurrently found that respondent was in possession of the suit property. That finding is based on facts and evidence on record. As such no interference is required in the Second Appeal. Substantial question of law urged is answered as earlier stated. 13. It is open to the respondent to withdraw the amount deposited by her in the executing court pursuant to the order passed on 19.01.2007. Second Appeal is dismissed. No cost. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv