P K Fathima and others v. P A Saibunnisa and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 6[TH] DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945** ## **RSA NO. 419 OF 2013** **AGAINST THE JUDGMENT IN OS 206/2001 OF MUNSIFF COURT, KALPETTA AS 58/2004 OF SUB COURT (KALPETTA), SULTHANBATHERY** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** 1 P K FATHIMA, AGED 77 YEARS, W/O.LATE P.K.SULAIMAN, KARIYAMBADI P.O., VYTHIRI TALUK, MUTTIL AMSOM DESOM, WYNAD DISTRICT. 2 P.K.SUHARA, AGED 49 YEARS, D/O.P.K.SULAIMAN, KARIYAMBADI P.O., VYTHIRI TALUK, MUTTIL AMSOM DESOM, WYNAD DISTRICT. 3 P.K.MOHAMMED YOUSUF, AGED 44 YEARS, S/O.LATE P.K.SULAIMAN, KARIYAMBADI P.O., VYTHIRI TALUK, WYNAD DISTRICT. 4 P.K.GAFOOR, AGED 42 YEARS, S/O.LATE P.K.SULAIMAN, VYTHIRI TALUK, WYNAD DISTRICT, KARIYAMBADI P.O. 5 P.K.ABDUL JALEEL, AGED 40 YEARS, S/O.LATE P.K.SULAIMAN, VYTHIRI TALUK, WYNAD DISTRICT, KARIYAMBADI P.O. 6 P.K.SHAHUL HAMEED, AGED 39 YEARS, S/O.LATE P.K.SULAIMAN, VYTHIRI TALUK, WYNAD DISTRICT, KARIYAMBADI P.O. 7 P.K.LAILA, AGED 35 YEARS, S/O.LATE P.K.SULAIMAN, MUTTIL AMSOM DESOM, VYTHIRI TALUK, WYNAD DISTRICT, KARIYAMBADI P.O. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN ## **RESPONDENTS/APPELLANTS/PLAINTIFFS:** 1 P A SAIBUNNISA, AGED 63 YEARS, D/O.PULAVAR ABDUL RAZAK RAVOTHER, MUTTIL AMSOM DESOM, VYTHIRI TALUK, WYNAD DISTRICT-673122. 2 P.A.THAJUNNISSA, AGED 64 YEARS D/O.PULAVAR ABDUL RAZAK RAVOTHER, MUTTIL AMSOM DESOM, VYTHIRI TALUK, WYNAD DISTRICT-673122. BY ADVS. SRI.GEORGE THOMAS (MEVADA)(SR.) FOR R1 & R2 SRI.MANU GEORGE KURUVILLA FOR R1 & R2 SMT.RINU JOSE FOR R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA No.419 of 2013 2 ## K.BABU, J. -------------------------------------- R.S.A No.419 of 2013 --------------------------------------Dated this the 6[th] day of November, 2023 ## JUDGMENT The Regular Second Appeal arises from the judgment dated 18.10.2012 in A.S.No.58/2004, setting aside the judgment in O.S.No.206/2001 of the Munsiff Court, Kalpetta passed by the Subordinate Judge's Court, Sulthanbathery. 2. The defendants are the appellants. 3. The brief facts are as follows: The plaint schedule property originally belonged to Hussain Ravuther, Shiekrum Ravuther and Subaidabi. The plaintiffs and their mother Jamilabi acquired the title and possession over the property by virtue of assignment deed No.865 of 1955 dated 14.6.1955. After the death of Jamilabi, the right over the property devolved upon the plaintiffs and their father Abdul Rasak Ravuther. Thus, the plaint schedule property came to the joint possession of the plaintiffs and their father. Plaintiff No.1 filed O.S.No.214/1981 for the partition of 1.04 acres of land in Re.Sy. No.474 in Muttil Amsom, RSA No.419 of 2013 3 Muttil Desom. A preliminary decree was passed on 22.3.1981. They filed a final decree application as I.A. No.872/1989. The Commissioner appointed by the Court reported that plots F, H, J, having an extent of 5.5 cents referred to in Ext.C3 plan in that suit, were in the possession of one P.K.Sulaiman Ravuther, husband of defendant No.1 and father of the other defendants. Accordingly, in the final decree proceedings, Sulaiman Ravuther was impleaded as respondent No.12, and the final decree was passed on 30.1.1993. As per the final decree, plots D, E and F in the plan were allotted to plaintiff No.1. Plots J and I were allotted to plaintiff No.2 and plots G and H were allotted to plaintiff’s father Abdul Rasak Ravuther. After the death of Abdul Rasak Ravuther, the right over plots G and H devolved upon the plaintiffs in equal shares. In the execution proceedings, plots D, E, and I were delivered to the plaintiffs and the execution petition was closed on 4.11.2000. The defendants herein, who are the legal heirs of late Sulaiman Ravuther, were also made parties in the execution proceedings. They challenged the final decree before this Court by filing C.R.P. No.2545/1998. This Court held that as the property in the exclusive possession of Sulaiman Ravuther was also included in the final decree, the Court RSA No.419 of 2013 4 below should have directed the decree holders to file a suit for recovery of possession, impleading the legal representatives of Sulaiman Ravuther. The Court further held that the decree holders could not have been competent to execute the decree as such a right was not given to them by the final decree. 4. Subsequent to the order in C.R.P.No.2545/1998, the plaintiffs instituted the present suit for recovery of possession based on the title deed. They pleaded that they had acquired the title over plots F, H and J in Ext.C3 plan in O.S.No.214/1981. In the plaint, this property was scheduled as plaint B schedule property. The plaintiffs further pleaded that the defendants have no right over the plaint B schedule property. 5. The defendants resisted the suit, contending that the plaintiffs have no title or possession over plaint A and B schedule properties, and hence, they are not entitled to recovery of possession of B schedule property. They contended that the plaintiffs failed to plead the nature of their right over B schedule property. The defendants further contended that they acquired right over plaint B schedule property by virtue of a purchase certificate No.275/1987 issued by the Land Tribunal, Kalpetta. The defendants RSA No.419 of 2013 5 also contended that they had been paying land tax in respect of the property subsequent to the issuance of Ext.B16 purchase certificate. The trial court framed the following issues: - (i) Whether the suit is maintainable? - (ii) Whether the plaint schedule properties were identifiable? - (iii) Whether the plaintiffs have absolute title over plaint A schedule property? - (iv) Whether the defendants are bound by the decree in O.S.No.214/81? - (v) Whether the plaintiffs are entitled to recover plaint schedule property from the defendants? - (vi) Whether the plaintiffs are entitled to claim mesne profit? - (vii) Reliefs and costs. - (viii) Whether the defendants perfected their title by adverse possession and limitation? 6. The parties went to trial. Plaintiff No.2 gave evidence as PW1 and Exts.A1 to A4 were marked on the side of the plaintiffs. The first defendant gave evidence as DW1. The Village Officer concerned was examined as DW2. Exts.B1 to B31 were marked on the side of the defendants. Exts.C1 to C3 were marked as Court exhibits. Exts.X1 and X2 were marked as third-party exhibits. RSA No.419 of 2013 6 7. The Trial Court found that though the plaintiffs have acquired title over the plaint B schedule property, they lost the same by way of adverse possession. Consequently the suit was dismissed. 8. The plaintiffs challenged the decree and judgment passed by the Trial Court by filing A.S No.58/2004 before the First Appellate Court. The First Appellate Court reversed the judgment and decree passed by the Trial Court, holding that the defendants failed to establish the right over B schedule property by way of adverse possession. The Appellate Court decreed the suit directing the defendants to surrender vacant possession of the plaint B schedule property. The said decree and judgment are under challenge in this Regular Second Appeal. 9. This Court, after hearing both sides, reframed the substantial question of law as follows: “Have the Courts below drawn the necessary inferences and presumptions that would apply to the facts and circumstances of this case?” 10. Heard Sri.Sreekumar G, the learned counsel for the appellants/defendants and Sri.Manu George Kuruvila, the learned RSA No.419 of 2013 7 ## counsel for the respondents/plaintiffs. 11. The learned counsel for the defendants submitted that right from 1968, the defendants or their predecessors in interest have been paying tax in respect of the property. The learned counsel also contended that by virtue of Ext.B16, the defendants have title over the Plaint B schedule property. The learned counsel for the defendants submitted that the pleadings and evidence would lead to the conclusion that the defendants have maintained uninterrupted possession of the property, to the knowledge of the plaintiffs, beyond the statutory period and thus acquired title over it by way of adverse possession. 12. The learned counsel for the plaintiffs would contend that the judgment and decree passed by the First Appellate Court require no interference for the sole reason that the defendants raised rival claims of title and right over the property by way of adverse possession. 13. The title of the plaintiffs over the plaint B schedule property was concurrently found in their favour by the Munsiff Court and the First Appellate Court. The finding on this fact is not open for consideration in this Regular Second Appeal as it has RSA No.419 of 2013 8 become final. Now, what survives is whether the defendants have acquired right over the property by way of adverse possession. In support of defendants' case, defendant No.1 gave evidence as DW1. DW1 stated in her evidence that she never had a feeling that the property in their possession belonged to the plaintiffs. DW1 further admitted that the property obtained by Sulaiman Ravuthar as per Ext.B16 is the property in resurvey No.473, whereas the B schedule property is in resurvey No.474. 14. 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. 15. 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 RSA No.419 of 2013 9 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 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.” ## 16. 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.” ## 17. 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. 18. Mere possession for howsoever length of time does not RSA No.419 of 2013 10 result in converting the permissive possession into adverse possession. This position was reaffirmed by the Apex Court in Ram Nagina Rai and Anr. v. Deo Kumar Rai (Deceased) By Lrs. and Anr. [(2018) 10 SCJ 533] . 19. The Apex Court in Karnataka Board of Wakf (supra) held that whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. Therefore, the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate the former is renounced. 20. In Dagadabai v. Abbas [(2017) 13 SCC 705] the Apex Court held that a person first admit ownership of the true owner over the property before claiming ownership on the strength of adverse possession. 21. In the present case, the defendants, throughout the proceedings, have continued to claim title over the property, and therefore, the claim of the defendants based on the principle of adverse possession cannot be sustained. The substantial question of law is, therefore, answered accordingly against the appellants/defendants. The judgment and decree passed by the RSA No.419 of 2013 11 First Appellate Court require no interference. The Regular Second Appeal stands dismissed. No costs. Pending Interlocutory Applications, if any, stand closed. Sd/K.BABU, JUDGE Ab+KAS