P. Sakunthala v. Sivasankarapillai and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 30[TH] DAY OF JUNE 2023 / 9TH ASHADHA, 1945** ## **SA NO. 730 OF 2002** ## **AGAINST THE DECREE AND JUDGMENT IN A.S.No.133/1996, DATED 22/1/2002 ON THE FILES OF THE SUB COURT, NEDUMANGAD** **AND JUDGMENT AND DECREE DATED 4.1.1995 IN OS NO.380/1987 OF MUNSIFF'S COURT NEDUMANGAD** ## **APPELLANT – 1ST APPELALNT – 2ND DEFENDANT** ## P. SAKUNTHALA RESIDING AT PLAVARATHALA VEEDU, KOKKOTTALA, KOTTAKKAKOM MURI, ARYANDU VILLAGE. BY ADV. SRI. K. SATHEESHKUMAR. ## **BY ADV. S.SOMAN** ## **ADV. USHA RAVINDRAN** ## **RESPONDENTS – RESPONDENTS & APPELLANTS 2 TO 6 – PLAINTIFF AND DEFENDANTS 1, 3 TO 13** ## **.** 1. SIVASANKARAPILLAI( ***) DIED LRS IMPLEADED** S/O. PARAMESWARA PILLAI, KOKKOTTALA VALIYA KOKKUDI PUTHEN VEEDU, KOTTAKKALAM MURI, ARYANAD VILLAGE. 2. P. KRISHNAPILLAI KOKKOTTALA VALIYA KOKKUDI PUTHEN VEEDU, KOTTAYKKAKM MURI, ARYANAD VILLAGE. 3. P. VISWANATHAN NAIR, KOKOOTTELA VALIYA KOKKUDI PUTHEN VEDDU, KOTTTAYKKAKAM MURI, ARYANAD VILLAGE. 4. P. SAVITHRY, KOKKOTTELA VALIYA KOKKUDI PUTHEN VEDDU, KOTTAYKKAKAM MURI, ARYANAD VILLAGE. 5. P. SEETHA KOKKOTTELA VLIYA KOKKUDI PUTHEN VEEDU, KOTTAYKKAKAM MURI, ARYANADU VILLAGE. 6. K. SUGATHAKUMARI, KOKKOTTELA KALIYAL VEEDU, KOTTAKKAKAM MURI, ARYANAD VILLAGE. ## **S.A.NO. 730 OF 2002** ## **-:2:-** 7. P. THANKAMMA KOKOTTELA PLAVARATHALA VEEDU, KOTTAKKAKAM MURI, ARYANAD VILLAGE. 8. DEVAKY AMMA W/O. KRISHNA PILLAI, N.K.P. SADANAM ANPATHARALAYKAL, KOTTAYKKAKAM MURI, ARYANAD VILLAGE. 9. K. PREMACHANDRAN N.K.P. SADANAM, ANPATHARALAYKAL, KOTTAYKKAKAM MURI, ARYAND VILLAGE. 10. K. BALACHANDRAN, N.K.P. SADANAM, ANPATHARALAYKAL, KOTTAYKKAKAM MURI, ARYAND VILLAGE. 11. P. SARATHCHANDRAN, N.K.P. SADANAM, ANPATHARALAYKAL, KOTTAYAKKAKAM MURI, ARYAND VILLAGE. 12. K. RAJENDRAN N.K.P. SADANAM,ANAPATHARALAYKAL, KOTTAYAKKAKAM MURI, ARYANAD VILLAGE. - ADDL.R13. K.CHANDRIKA W/O SIVASANKARA PILLAI, CHERIYA KOKKUDI PUTHEN VEEDU, KOKKOTTALA ARYANAD, NEDUMANGAD TALUK, THIRUVNANATHAPURAM. - ADDL.R 14. C. REMANI - D/O SIVASANKARA PILLAI, SREEKUTTAN BHAVAN, KOKKOTTALA (P.O), ARYANAD. - ADDL.R 15. GOPAKUMAR S/O. SIVASANKARA PILLAI, CHERIYA KOKKUDI PUTHEN VEEDU, KOKKOTTALA (P.O) ARYANAD. ## **S.A.NO. 730 OF 2002** ## **-:3:-** ## ADDL.R 16. JAYAKUMAR S/O SIVASANKARA PILLAI, CHERIYA KOKKUDI PUTHEN VEEDU, KOKKOTTALA (P.O), ARYANAD. - ADDL.R 17. VINOD S/O SIVASANKARA PILLAI, CHERIYA KOKKUDI PUTHEN VEEDU, KOKKOTTALA (P.O), ARYANAD. - ADDL.R 18. BIJU S/O SIVASANKARA PILLAI, CHERIYA KOKJKUDI PUTHEN VEEDU, KOKKOTALA (P.O), ARYANAD. ## ADDL.R 19. BINU S/O SIVASANKARA PILLAI, CHERIYA KOKKUDI PUTHEN VEEDU, KOKKOTALA (P.O) ARYANAD. (*)ADDITIONAL RESPONDENTS 13 TO 19 IMPLEADED AS LRS OF DECEASED 1ST RESPONDENT, AS PER ORDER DATED 12/2/2004 IN I.A.No.839/2003 BY ADVS. SRI.K.SATHEESH KUMAR SRI.T.A.UNNIKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21//6/2023, THIS COURT ON 30/6/2023 DELIVERED THE FOLLOWING: ## A.MUHAMED MUSTAQUE, J. ----------------------------------------- ## S.A.No.730 of 2002 ----------------------------------------- ## Dated this the 30[th] day of June, 2023 ## J U D G M E N T This appeal was filed by the second defendant in O.S.No.380/1987 on the file of the Munsiff’s Court, Nedumangad. The second defendant, in a suit for declaration of the plaintiff’s title and possession over 5 items of property, claimed that plaint schedule item No.3 property is in her exclusive possession and that the title or interest, if any, of the plaintiff is barred by adverse possession. Both Courts concurrently rejected the plea raised by the second defendant. It is challenging this, the second appeal was preferred. 2. The learned counsel for the appellant Shri S.Soman, placing reliance on the judgments of the Hon’ble Suprement Court in Ravinder Kaur Grewal v. Manjit Kaur, [(2019) 8 SCC 729] and Amrendra Pratap Singh v. Tej Bahadur Prajapati, [(2004) 10 SCC 65] argued that both courts failed in addressing the question of law in a proper perspective. It is submitted that when it is evident from the plea and evidence that the second defendant is found to be in possession for more than 12 years, the courts below could not have decreed the suit in favour of the plaintiff. It is apposite to quote the relevant paras of the above judgments which are as follows: **-:2:-** ## **S.A.NO. 730 OF 2002** ## Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit. ## Amrendra Pratap Singh v. Tej Bahadur Prajapati, [(2004) 10 SCC 65] ## What is adverse possession ? 22. Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of twelve years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of Section 27 of the Limitation Act, on the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title on to himself and such prescription having continued for a period of twelve years, he ## **S.A.NO. 730 OF 2002** ## **-:3:-** acquires title not on his own but on account of the default or inaction on the part of the real owner, which stretched over a period of twelve years, results in extinguishing of the latter's title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrongdoing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrongdoer and re-enter into possession, has defaulted and remained inactive for a period of twelve years, which the law considers reasonable for attracting the said penalty. Inaction for a period of twelve years is treated by the doctrine of adverse possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession. 3. I shall consider the plea of ‘adverse possession’ raised by the second defendant. According to the second defendant, she and her predecessors enjoyed the property without any interruption as to the possession, for several years. A specific issue was framed by the Trial Court. Trial Court placed reliance on the Commission report. According to the second defendant, plaint schedule item No.3 property claimed by her is well bounded by boundaries on all four sides but the Commissioner's plan belies the claim and shows that there is no separate existence to identify the property claimed by the second defendant. It is observed by the Commissioner that the said plaint schedule item No.3 property is the remaining part of other property as referred to in plaint schedule item No.5. 4. The courts below concurrently found that there was nothing in the pleadings or evidence to hold that possession was adverse to the real owner. No averments, as to when the possession commenced and when it became adverse, etc are seen to be included. The courts below noted that the only averments with regard to the plea of adverse possession was that the second ## **S.A.NO. 730 OF 2002** ## **-:4:-** defendant and her predecessors had been in possession and enjoyment of the property for the past several years. It was also found by the courts below that the second defendant who was examined as DW1 had not deposed anything regarding adverse possession while in the box. The courts below negatived the plea of adverse possession for lack of pleadings and evidence. It is settled law that the plea of adverse possession must be specifically pleaded. (See Karnataka Board of Wakf v. Govt. of India [(2004) 10 SCC 779 )]. In Karnataka Board of Wakf’s case (supra), the Hon’ble Supreme Court had held: 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. **==> picture [472 x 34] intentionally omitted <==** In light of the above, there is absolutely no question of law that arises in this matter. In such circumstances, there is no merit in this appeal. The second appeal is accordingly dismissed. No costs. Sd/- A.MUHAMED MUSTAQUE, JUDGE ms ## **ORDER ON C.M.P. NO. 2264 OF 2003.** ## **IN** ## **S.A. 730 OF 2003** **----------------------------------------------------------------** ## **CLOSED** **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE**