P. Ramananda Bhandary and others v. K. Harishchandra Holla

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 8TH DAY OF AUGUST 2014/17TH SRAVANA, 1936** ## **RSA.No. 337 of 2008** **-----------------------AS NO.77/1998 OF ADDL.DISTRICT COURT (ADHOC I), KASARAGOD DATED 29-02-2008** **....... OS NO.193/1995 OF SUB COURT, KASARAGOD DATED 16-02-1998** **......** ## **APPELLANTS/RESPONDENTS/PLAINTIFFS:** **-----------------------------------------------------------------** *** 1. P.RAMANANDA BHANDARY ( D I E D).** ## **2. P.BEERANNA BHANDARY** ## **3. P.RATNAKARA BHANDARY** ## **4. P.SHRIMATHI ALVA** **ALL ARE CHILDREN OF KOCHANNA BHANDARY. NO.1 IS RESIDING AT SOMESHWAR VILLAGE, MANGALORE TALUK, P.O.KOTEKAR. NO.2 IS RESIDING AT NO.119, R.M.V.EXTENSION, BANGALORE - 560 080. NOS.3 & 4 ARE RESIDING AT C/O NO.2 AT NO.119, R.M.V. EXTENSION, BANGALORE - 560 080. NOS. 2 TO 4 ARE REPRESENTED BY THEIR BROTHER AND POWER OF ATTORNEY HOLDER NO.1.** ## ***ADDL.A5 TO R7 IMPLEADED:** **ADDL.A5. UMA R.BHANDARY** **A6. NAGINA** **A7. THARUNYA SHETTY** **NO.5 IS THE WIFE AND 6 AND 7 ARE THE CHILDREN OF DECEASED RAMANANDA BHANDARY, RESIDING AT SOMESHWARA VILLAGE, MANGALORE TALUK, P.O. KOTTEKAR, KARNATAKA STATE.** **ADDL.APPELLANTS 5 TO 7 ARE IMPLEADED BEING THE LR'S OF DECEASED FIRST APPELLANT VIDE ORDER DATED 9/01/2012 IN I.A.N.2942/2011.** ## **BY ADV. SRI.K.G.GOWRI SHANKAR RAI** **..2/-** **Kss** **..2....** ## **RSA.NO.337/2008** ## **RESPONDENT/APPELLANT/DEFENDANT:** **------------------------------------------------------------------** **K.HARISHCHANDRA HOLLA, S/O.NARAYANA HOLLA, RESIDING AT UPPALA VILLAGE AND POST, KASARAGOD TALUK.** **BY SRI.S.V.BALAKRISHNA IYER,SENIOR ADVOCATE ADVS. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/07/2014, THE COURT ON 08/08/2014 DELIVERED THE FOLLOWING:** **Kss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 337 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of August, 2014. ## **JUDGMENT** The plaintiffs who gained a decree from the trial court but were non-suited by the appellate court are the appellants. The suit was one for declaration of title and recovery of possession. 2. The plaintiffs obtained the plaint schedule property in execution of the final decree for partition in O.S. 49 of 1957. It is claimed that actual delivery of the property was obtained and they were in possession and enjoyment of the same. While so, the defendants trespassed into the property and forcibly occupied plaint A schedule property and claiming to be a cultivating tenant remained there. He also put up a shed in the property. The plaintiff learned that with the connivance of Ramappa Alva, certain documents have been created between Ramappa Alva and defendants as regards RSA.337/2008. 2 suit property and on the basis of those documents claims were made. The defendants went to the extent of even obtaining purchase certificate in respect of the said property. The said Ramappa Alva had no rights over the property to lease it out to anybodyelse let alone the defendant. Coming to know about the purchase certificate issued by the Land Tribunal in favour of the defendant, the plaintiffs appealed before the appellate authority and the appellate authority allowed the appeal and dismissed the O.A. filed by the defendant. The defendant has no manner of right over the suit property and he is not more than a trespasser. On the basis of these allegations, the suit was laid. 3. The suit was resisted by the defendant by pointing out that the plaint allegations are false. According to him, one Ramappa Alva obtained the property on lease from the family of the plaintiffs in 1960. While Ramappa Alva was in possession of the property, he assigned his leasehold RSA.337/2008. 3 interest in favour of one Paulson and who in turn assigned the property to the defendant. Paulson had put up a shed in the property which was made a pucca construction by the defendant. The defendant and his predecessor-in-interest have been in occupation of the property peacefully, continuously as of right and in derogation of the right of the plaintiffs and if at all the plaintiffs had any title to the suit property, that was lost by adverse possession and limitation. At any rate, according to the defendant, even assuming that he is not entitled to the benefit under the Land Reforms Act, he qualifies a tenant falling within the ambit of Act 2 of 1965. According to him, therefore the suit was liable to be dismissed. 4. On the basis of the above pleadings, issues were raised and parties went to trial. There was no oral evidence adduced from either side. The plaintiffs had marked Exts.A1 to A4. The trial court on appreciation of the evidence in the RSA.337/2008. 4 case came to the conclusion that the plaintiffs had title to the suit property and in the light of the fact that the order granting purchase certificate to the defendant had been set aside by the appellate authority and since the defendant was not able to show a better title to remain in possession of the property, the suit was decreed. 5. The aggrieved defendant carried the matter in appeal as A.S. 77 of 1998. The lower appellate court found the decree passed by the trial court to be untenable. The lower appellate court found that if at all the plaintiffs in the partition suit had been allotted the property herein also, they would have sought for possession of the same within one year of the obstruction caused by the defendant and having not done so, they cannot claim any right to the property. Even according to the plaintiffs, it was pointed out that the defendant had trespassed into the property in 1974 and had occupied the same in which case the suit brought in 1995 is RSA.337/2008. 5 bad since by then the defendant had perfected his title by way of adverse possession and limitation. The appellate court received several documents produced by the appellant before the court and based on those documents and other materials on record came to the conclusion that the plaintiffs had no title to the suit property and dismissed the suit. The said dismissal of the suit is challenged before this court in this appeal. 6. At the time of admission, the following substantial questions of law that were formulated: “1. When the defendant claimed that he is a tenant under plaintiffs and approached the Land Tribunal to purchase the jenm right asserting thew tenancy and the order of the Land Tribunal was set aside by Ext.A4 order of Appellate Authority (Land Reforms) on 28.2.984, whether first appellate court was justified in holding that title of the plaintiffs is barred by adverse possession? RSA.337/2008. 6 2. Whether first appellate court was justified in admitting Ext.B1 to B9, invoking Rule 27 of Order XLI of Code of Civil Procedure without satisfying the conditions provided therein?” 7. Learned counsel appearing for the appellants contended that the lower appellate court has grossly erred both on facts and in law in dismissing the suit. The reasons given are totally unsustainable in law. The lower appellate court seems to have forgotten that the defendant was claiming as a tenant and was clinging on to his tenancy right to defend his possession. That necessarily means that the title of the plaintiffs is admitted. It is also significant to note, according to the learned counsel, that the purchase certificate was obtained with a member of the family of the plaintiffs who had no rights in the property as the landlord. That was set aside in appeal. The mere fact that the plaintiffs had in the plaint stated that the defendant had trespassed into the property in 1974 after the plaintiffs had obtained possession RSA.337/2008. 7 of the property in execution of the decree in the partition suit cannot by itself be a ground to non-suit the plaintiffs. It must be remembered, according to the learned counsel, that the defendant had obtained a purchase certificate and it was on the strength of the purchase certificate and claim of tenancy that he remained in possession of the property. The order of the Land Tribunal granting purchase certificate was set aside only on 29.2.1984. At worst as against the plaintiffs, what could be said is that adverse possession of the defendant begins from 1984 onwards. The suit was brought in 1995 and if that be so, it is well within time. 8. Learned counsel also pointed out that it is significant to notice that no document whatsoever was produced by the defendant in the trial court and at the appellate stage, he produced several documents which were readily accepted by the court below without bothering to ascertain whether the situations mentioned in Order 41 Rule RSA.337/2008. 8 27 of the Code of Civil Procedure are made out. No opportunity was given to the plaintiffs to meet those documents and it was unilaterally relied on. 9. It is trite, according to the learned counsel, the burden of proving adverse possession and limitation is on the person who claims the same. In the case on hand, the defendant stuck to his plea of tenancy and if that be so, it is for him to establish as to when he shed the character of the tenant and began to hold the property adverse to the interests of the plaintiffs. There is no such plea or evidence in this case. Having remained in possession of the property on the basis of the purchase certificate which was set aside only in 1984, the defendant could not say that he had perfected his title by adverse possession and limitation. There is no evidence adduced by the defendant to show that he had perfected his title by adverse possession and limitation. RSA.337/2008. 9 According to the learned counsel, the decree of the lower appellate court is clearly unsustainable. 10. The learned counsel appearing for the respondents on the other hand pointed out that in the plaint it is averred that the plaintiffs had obtained the suit property in execution of the decree in the partition suit between the members of the family of the plaintiffs. It is further stated in the plaint that the plaintiffs were allotted the plaint schedule property and they had got delivery of the same. According to the plaintiffs, after the plaintiffs had obtained possession of the property in execution of the decree of the partition suit, the defendant trespassed into the suit property and occupied the same. That was in the year 1974. If that be so, his possession becomes hostile since then, and the suit filed in 1995 as rightly noticed by the lower appellate court is beyond the statutory period of limitation. Going by Section 27 of the Limitation Act plaintiffs have both rights over the property and RSA.337/2008. 10 also right to seek remedy also. It is therefore contended that no grounds are made out to interfere with the judgment and decree of the court below. 11. After having heard learned counsel for the appellants and the respondent and after having perused the records, it seems that there is considerable force in the submission made by the learned counsel for the appellants. 12. The defendant did not produce any documents before the trial court. They produced Exts.B1 to B6 before the lower appellate court. True, Order 41 Rule 27 of the Code of Civil Procedure was invoked to receive additional evidence. But when one goes through Order 41 Rule 27 it could be seen that receipt of the additional evidence at the appellate stage is not a matter of course. Order 41 Rule 27 contemplates three situations under which the additional evidence could be received. It is not necessary to reproduce the same here. Suffice to say that there is no reason given by the lower RSA.337/2008. 11 appellate court as to why it was accepting the additional evidence produced by the defendant in the suit at the appellate stage. The documents simply seem to have been accepted without adjudicating the acceptability or reliability at all. It is significant to notice that the defendant had neither adduced oral evidence nor produced documentary evidence before the trial court. The trial court had on evaluation of the materials before it found that title of the property was with the plaintiffs. 13. In the decision reported in Union of India v. Ibrahim Uddin ( (2012) 8 SCC 148), it was held as follows: “48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the RSA.337/2008. 12 court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage. 49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the RSA.337/2008. 13 evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court.” The lower appellate court has not given any reasons as already noticed as to why those documents which were produced before the lower appellate court were not produced before the trial court and the defendant had established any of the grounds as enumerated in Order 41 Rule 27 of C.P.C. 14. Apart from the above aspect, the plaintiffs were not given an opportunity to offer their explanation with regard to the documents produced by the defendant. If the court below felt that the additional documents had to be RSA.337/2008. 14 received, necessarily an opportunity ought to have been given to the plaintiffs to show that those documents cannot be relied on. It would have been only proper for the appellate court to raise an issue and remand the matter to the trial court for disposal. 15. The act of the lower appellate court in not providing an opportunity to the plaintiffs to meet the documents and in having simply accepting the documents produced by the defendant cannot be supported in law. 16. Coming to the title of the plaintiffs, the plaintiffs traced their title to Ext.A1 dated 8.2.1995 which is the final decree in O.S.47 of 1957. The plaintiffs had claimed that by virtue of the decree granted in the partition suit, they had obtained the plaint schedule property as their share and they were in possession and enjoyment of the same. This title traced by the plaintiffs is not disputed by the defendants at all. RSA.337/2008. 15 17. What the defendant would contend is that he had obtained the property from one Paulson who had obtained it on oral lease from Ramappa Alva. According to the appellants, Ramappa Alva had no interest in the property. 18. It is true that the plaintiffs had alleged that the defendant had trespassed into the property in 1971. As rightly pointed out by the learned counsel for the appellants, the case of the defendant was that he was a cultivating tenant in the property and had obtained purchase certificate arraying Ramappa Alva as the landlord. That purchase certificate had been obtained even prior to the execution proceedings in O.S. 49 of 1957 were completed. Of course, there seems to have been no attempt from the side of the plaintiffs to have the defendant vacated from the properties. However, the plaintiffs have specifically averred in the plaint and produced documents to show that the property was in fact RSA.337/2008. 16 delivered to them. During the trial stage no documents were produced by the defendant to show that it was not so. 19. The case of the defendant is that Ramappa Alva had obtained the property on lease from the family of the plaintiffs who in turn had assigned the property to Paulson on oral lease who in turn had assigned the property to the defendant. 20. The plaintiffs had pointed out Ramappa Alva had no manner of right at the time to create such arrangements in the property. 21. The defendant now wants to take advantage of the purchase certificate and claims to have continued to be in possession till 1995 and also that they had perfected title by adverse possession and limitation. 22. The question as to whether the defendant can succeed on the plea of adverse possession and limitation is open to serious doubt. Even though the plaintiffs RSA.337/2008. 17 characterized him as a trespasser, he claimed to be a cultivating tenant in respect of the property. It is not disputed before this Court that he had moved the Land Tribunal and had obtained the purchase certificate. Under those circumstances, it would have been difficult for the plaintiffs to obtain actual physical delivery of the plaint schedule property in execution of final decree in the partition suit. As long as the defendant was holding the property on the basis of a purchase certificate, any attempt to take actual delivery of property would have been a futile attempt. 23. As rightly done, the plaintiffs therefore moved an appeal before the Appellate Authority assailing the order of the Land Tribunal granting purchase certificate to the defendant. The Appellate Authority allowed the appeal and dismissed the application under Section 72B of the Kerala Land Reforms Act made by the defendant. The said order is dated 28.2.1984. RSA.337/2008. 18 24. It is well settled that the burden is on the person who sets up adverse possession and limitation. Having admitted the title of the plaintiffs and having claimed that they are cultivating tenants of the property, one cannot simply rely on a stray sentence in the plaint about trespass alleged by the plaintiffs and hold that the adverse possession of the defendant relates back to 1974 onwards. 25. The above aspect has to be noticed in the light of the fact that the defendant had obtained purchase certificate which is conclusive going by Section 72K of the Kerala Land Reforms Act. Realizing the said fact, the appellants moved the appellate authority and had the O.A. dismissed. As things now stand, the said order has become final. That means the tenancy claim put forward by the defendant was not accepted by the Land Tribunal authorities. RSA.337/2008. 19 26. It could at best be said that as far as the defendant is concerned, from the date of Ext.B2 the order by which the Appellate Authority allowed the appeal and dismissed the O.A. dated 28.2.1984, his possession comes to be adverse to that of the plaintiffs. Till then, even going by the claim made by the defendant, he was occupying the property believing himself to be a tenant and on the strength of the purchase certificate. The burden to prove hostile animus to hold the property in derogation of the right of the landlord is on the person who sets up adverse possession and limitation. 27. The lower appellate court finds that the final decree in the partition suit had become unexecutable since 12 years have elapsed after decree and finds fault with the appellant for not getting delivery of the property under Order 21 Rule 96 of C.P.C. The appellate court was considerably RSA.337/2008. 20 impressed by the fact that in the plaint the plaintiffs had stated that the occupation of the defendant began in 1974 and that persuaded the court below to dismiss the suit on the ground that if the defendant had trespassed into the property in 1974, the suit brought in 1995 is clearly barred. 28. Viewed in the above form, it may be so. But as already noticed, the status claimed by the defendant cannot be lost sight of. 29. There is some controversy regarding the delivery of the property to the plaintiffs as per execution proceedings of the final decree in O.S.49 of 1957. While the plaintiffs would claim that the property except the building was delivered, the defendant would dispute the same. According to him, the land and the land on which the building stands were not delivered. It is true that going by the delivery documents the property was not delivered to the plaintiffs. But that proceedings was in the year 1974. It appears that RSA.337/2008. 21 there was no attempt from the side of the plaintiffs to obtain delivery of the property from the defendant soon thereafter. But that is quite understandable in the light of the fact that by that time, the defendant had procured purchase certificate in respect of the property. If the appellant thought that without getting the order of the Land Tribunal set aside, there will be no point in prosecuting the said proceedings, they could not be found fault with. That is the precise reason why they had challenged the order in O.A. granting purchase certificate before the Appellate Authority and they succeeded in it too. 30. As rightly pointed out by the learned counsel for the appellants, the possession of the defendant till the order in O.A. was set aside by the Appellate Authority can only be that of the character of a tenant as pleaded by the defendant. The defendant had no case that any time prior to the order of the Appellate Authority dismissing the O.A., he was holding the property in derogation of the rights of the RSA.337/2008. 22 plaintiffs. 31. Probably one could say that after the final orders were passed in the appeal filed by the plaintiffs before the Land Tribunal Appellate Authority, that is on 29.12.1984, the subsequent possession of the defendant is clearly illegal, unlawful and such possession can be that of only a rank trespasser. Thereafter it may be possible for the defendant to claim that his possession becomes adverse. But then the suit which has been brought in 1995 is within 12 years of the dismissal of the O.A. 32. These aspects of the case have not been considered by the lower appellate court which are of considerable relevance and importance in the case. At any rate, these significant and relevant aspects have not received the attention of the lower appellate court and it could be said that relevant aspects have not been noticed by the said court. It is extremely doubtful in the light of the above facts whether RSA.337/2008. 23 the lower appellate court was justified in dismissing the suit holding that the final decree in the partition suit had become unexecutable and also that possession of defendant from 1974 onwards is to be treated as adverse to the right of the plaintiff. 33. It is therefore felt that a reconsideration of the matter is required at the hands of the lower appellate court since it had not dealt with the real issues arising in the case and also because the lower appellate court has simply received additional documents in evidence without ascertaining if grounds under Order 41 Rule 27 of C.P.C. are established and without affording an opportunity to the plaintiffs to adduce evidence in that regard. In the result, the judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh consideration and disposal in accordance with law and in the light of what has been stated RSA.337/2008. 24 above. The parties shall appear before the lower appellate court on 27.8.2014. Both parties will be at liberty to adduce further evidence if they so choose. The lower appellate court make every endeavour to dispose of the appeal within six months from the date of appearance of the parties. P. BHAVADASAN, JUDGE sb.