P. Krishnan v. V. Chandravathy and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 11[TH] DAY OF OCTOBER 2021 / 19TH ASWINA, 1943 MAT.APPEAL NO. 570 OF 2011 AGAINST THE JUDGMENT IN OP 197/2006 OF FAMILY COURT,** ## **KASARAGOD** ## **APPELLANT/1st RESPONDENT:** P.KRISHNAN, AGED 62, S/O.V.RAMAN MANIYANI, HINDU,, BUSINESS, SREE NILAYAM, NEAR AGRICULTURAL, DEVELOPMENT BANK, DEVAN ROAD, HOSDURG VILLAGE,, HOZDURG TALUK, P.O.KANHANGAD, KASARAGOD DISTRICT. BY ADVS. SRI.T.K.VENUGOPALAN SRI.SHIBU JOSEPH ## **RESPONDENTS/PETITIONER & RESPONDETNS 2, 3 & 4:** 1 V.CHANDRAVATHY AGED 59 YEARS D/O.LATE PACHIKKARAN KRISHNAN MANIYANI,, HINDU, TEACHER, RESIDING AT VANNARATH HOUSE,, KOLLAKADA, PULLOOR VILLAGE, HOZDURG TALUK,, KASARAGOD DISTRICT, HARIPURAM P.O., VIA., ANANDASHRAM-671 531. 2 R.ASHOKAN AGED 41 YEARS S/O.RAVINDRAN, HINDU, HOTEL KEEPER, NEAR AGRICULTURAL DEVELOPMENT BANK, DEVAN ROAD,, HOZDURG VILLAGE, HOZDURG TALUK, PO.KANHANGAD, KASARAGOD DISTRICT-671 531 Mat.Appeal No.570/2011 -:2:- 3 B.HARI AGED 33 YEARS HINDU, GOLDSMITH, SREE SASTHA COLOUR HOUSE, NEAR NIRMAL BHAVAN HOTEL, P.O.KANHANGAD,, HOZDURG TALUK, KASARAGOD DISTRICT-671 531. 4 A.LAKSHMI AGED 42 YEARS W/O.P.KRISHNAN, HINDU, HOUSE HOLD, SREE NILAYAM,, NEAR AGRICULTURAL DEVELOPMENT BANK, DEVAN ROAD,, HOZDURG VILLAGE, HOZDURG TALUK, KASARAGOD, DISTRICT-671 531 BY ADV SRI.M.GOPIKRISHNAN NAMBIAR THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 11.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat.Appeal No.570/2011 -:3:- J U D G M E N T Dated this the 11[th ] day of October, 2021 ## Kauser Edappagath, J. This appeal has been filed against the judgment of the Family Court, Kasaragod in OP No.197/2006 dated 3[rd] May, 2011. 2. The original petition has been filed for declaration of title of the plaint A Schedule property and for recovery of possession. The first respondent at the Court below is the appellant. The petitioner at the Court below is the 1[st] respondent herein. The respondents 2 to 4 at the Court below are the respondents 2 to 4 herein. We refer the status of the parties as shown in the original petition. 3. The petitioner and the 1[st] respondent are the divorced spouses. Their marriage was solemnized on 4/11/1970. Three children were born out of the wedlock. Their marriage was dissolved through Court on 8/6/1995 as per proceedings in OP No.52/1993 on the file of the Sub Court, Hosdurg. The dispute in the original petition is regarding plaint A schedule property. Mat.Appeal No.570/2011 -:4:- According to the petitioner, she is the title holder of the A schedule property purchased by her as per Ext.A1 title deed. There is a residential building and commercial shop rooms in the A schedule property. After the marriage, the petitioner and the 1[st] respondent along with their children resided in the residential house in the plaint A schedule property. The commercial shop rooms were let out to tenants who have been arrayed as respondent Nos. 2 and 3. The 4[th] respondent is the present wife of the 1[st] respondent. According to the petitioner, she along with her children resided in the house in the A schedule property only till 29/8/1987. It is alleged that on account of the cruelty exercised by the 1[st] respondent, she and her children left the said house and started residing in her parental house at Pollakad. However, the 1[st] respondent continued to reside in the house situated in the A schedule property. According to her, the possession of the 1[st] respondent over the house in the A schedule property is only permissive one and his status is that of a licensee. The petitioner on 21/1/2002 issued Ext.A9 notice to the 1[st] respondent terminating the licence and calling upon him to surrender possession of the house situated in the A schedule Mat.Appeal No.570/2011 -:5:- property. He sent Ext.A11 reply claiming title over the A schedule property. The respondents 2 and 3 also supported the 1[st] respondent. It was in these circumstances, the suit was instituted by the petitioner to declare her title over the A schedule property and to recover possession of the house situated therein from the 1[st] respondent on the strength of her title. No relief was claimed against the respondents 2 to 4. 4. The 1[st] respondent filed counter statement disputing the allegations in the petition. The marital status was admitted. According to him, A schedule property was purchased by him utilizing his own funds in the name of the petitioner. He contended that the residential house as well as the commercial shop rooms therein were constructed by him. It is further contended that his status is not that of a licensee nor his possession over the house in the A schedule property is a permissive one. The title of the petitioner over the A schedule property has been disputed by him. He has also taken a contention that Ext.B1 unregistered settlement deed has been executed by him and the petitioner whereby the petitioner has admitted that she is only having 1/3[rd] right over the A schedule Mat.Appeal No.570/2011 -:6:- property. Plea of adverse possession and limitation has also been taken by him. It was further contended that the suit is barred by limitation. 5. The 2[nd] respondent filed counter statement stating that he is tenant of the two rooms situated in the A schedule property under the 1[st] respondent and he has been paying rent to him. He contended that, to his knowledge, his building owner is the 1[st] respondent. 6. The respondent No.3 remained absent and was set _ex parte_ . The respondent No.4 though entered appearance did not file any counter statement. 7. The parties went on trial. On the side of the petitioner, PW1 was examined and Exts.A1 to A15 were marked. On the side of the respondent, RWs 1 and 2 were examined and Exts.B1 to B3(d) were marked. After trial, the Court below allowed the petition and declaration and recovery of possession as prayed for was granted vide the impugned decree and judgment. The 1[st] respondent preferred this appeal challenging the said decree and judgment. 8. We heard the learned counsel for the appellant as well Mat.Appeal No.570/2011 ## -:7:- the learned counsel for the respondents and perused the records. 9. Both the petitioner and the 1[st] respondent claim rival title over the plaint A schedule property. Ext.A1 is the title deed of the A schedule property. It would show that the property was purchased by the petitioner on payment of consideration. The 1[st] respondent does not challenge Ext.A1. His only case is that the consideration to Ext.A1 was paid by him and he purchased the property in the name of the petitioner. Thus, the burden is upon the 1[st] respondent to prove that the property was purchased by him utilizing the consideration paid by him in the name of the petitioner. Apart from the interested testimony of 1[st] respondent himself, there is absolutely nothing to prove the same. PW1 gave evidence that she purchased the property utilizing the fund given to her by her father. It has come out in evidence that the father of the petitioner was a timber merchant and her mother was a headmistress. The petitioner was employed as a teacher even before her marriage. Ext.A1 is sufficient to prove that the title of A schedule rests with the petitioner. Ext. A14 series land revenue payment receipts and Ext.A13 series building tax payment Mat.Appeal No.570/2011 -:8:- receipts would show that Ext.A1 was acted upon and the property is in the possession of the petitioner. In these circumstances, we have no hesitation to hold that the Court below was absolutely justified in declaring that the petitioner is the title holder of the plaint A schedule property. 10. The 1[st] respondent has also raised an alternative plea of adverse possession and limitation. According to him, he is in continuous possession of the petition schedule property and the house situated therein for more than twelve years adverse to the interest of the petitioner and he has perfected his title over the same. The law of adverse possession and limitation is well settled. The burden is entirely upon the party who set up adverse possession to plead and prove that he is in possession of the property in question openly, uninterruptedly, notoriously, as a matter of right and hostile to the true owner for a period exceeding twelve years. It is equally settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without _animous possidendi_ . Unless the person possessing the property has a requisite _animous_ to possess the property hostile Mat.Appeal No.570/2011 -:9:- to the title of the true owner, the period for prescription will not commence. Coming to the facts of the case, there is no sufficient pleading to constitute adverse possession. There is no evidence either. The 1[st] respondent has taken three different mutually destructive pleas. He claimed absolute title over the property. He has also claimed 1/3[rd] right over the property based on Ext.B1 family arrangement. He has also pleaded adverse possession and limitation. He miserably failed to prove all these pleas. Ext.B1 relied on by the 1[st] respondent is an unregistered document. Therefore, no title will pass on the strength of Ext.B1. That apart, Ext.B1 was not satisfactorily proved. At any rate, there is nothing on record to show that the 1[st] respondent has perfected title over the A schedule property by adverse possession and limitation. The finding on this by the Court below does not warrant any interference. 11. The learned counsel for the appellant, next, vehemently argued that the suit is barred by limitation. According to him, Ext.A1 was executed on 15/6/1977 and the marriage was dissolved on 8/6/1995. The counsel submitted that as per Article 58 of the Limitation Act, a suit to obtain any other declaration has Mat.Appeal No.570/2011 -:10:- to be filed within three years when the right to sue first accrues. The petitioner has clearly pleaded that the status of the 1[st] respondent is that of a licensee and she issued Ext.A6 notice terminating the licence and calling upon the 1[st] respondent to surrender vacant possession of the house in the A schedule property. To the said notice, the 1[st] respondent sent Ext.A8 reply disputing the title of the petitioner over the A schedule property and setting up title in himself. The 1[st] respondent asserted title over the A schedule property for the first time in his reply notice. Thus, the cause of action accrued only when the 1[st] respondent sent reply notice on 19/3/2002. The petition was originally filed in the year 2005 at the Sub Court, Hosdurg which is well within the period of limitation. That apart, the Apex Court in _**State of Maharashtra v. Pravin Jethalal Kamdar**_ [(2000) 3 SCC 460] has held that when the relief of recovery of possession is sought along with the relief for declaration, the governing article would be Article 65 of the Limitation Act. In _**C.Natrajan v. Ashim Bai and Another**_ [(2007) 14 SCC 183], the Apex court held that when the suit has been filed for possession as a consequence of declaration of the plaintiff's title, Article 58 will have no Mat.Appeal No.570/2011 -:11:- application. The Division Bench of this Court in _**Abraham K.J. and Another v. Mariamma Itty and Others**_ (2016 (3) KHC 718) has held that in a suit for recovery of possession of immovable property based on title, the question of limitation will arise only when the defendant pleads and proves adverse possession for a continuous period of twelve years. The Apex Court in _**Ravinder Kaur Grewal and Others v. Manjit Kaur and Others**_ (AIR 2019 SC 3827) has held that right to recover possession based on title is absolute irrespective of limitation in the absence of adverse possession by the defendant for twelve years. We have already found that the 1[st] respondent failed to prove adverse possession and limitation pleaded by him. Thus, plea of limitation must also fail. The evidence on record would clearly show that the petitioner has succeeded in proving her title over the petition A schedule property. The petitioner along with the 1[st] respondent and her children were residing in the house situated in the petition-schedule property since their marriage till they separated. The possession of the 1[st] respondent over the house after divorce can only be termed as 'permissive one'. The status Mat.Appeal No.570/2011 -:12:- of the 1[st] respondent is only that of a licensee. The said licence has been terminated by issuing Ext.A6 notice. Therefore, the petitioner is entitled to a declaration as well as recovery of possession as rightly held by the Court below. We find no merit in the appeal and accordingly, it is dismissed. No order as to costs. **Sd/-** **A.MUHAMED MUSTAQUE JUDGE** **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** **Rp**