P.A. Kunjumohammed v. Janaki and Sujatha T.E.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 19[TH] DAY OF DECEMBER 2022 / 28TH AGRAHAYANA, 1944** ## **RSA NO. 282 OF 2014** **AGAINST THE JUDGMENTAND DECREE IN AS 253/2007 OF VI ADDITIONAL DISTRICT COURT, ERNAKULAM DATED 20TH DECEMBER, 2013.** **THE JUDGMENT IN OS 1660/2005 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM DATED** **29TH SEPTEMBER, 2007.** ## **APPELLANT:-(RESPONDENT/DEFENDANT)** P.A.KUNJUMOHAMMED, AGED 70 YEARS, S/O. LATE ABOOBACKER, POTHADY HOUSE, PONNARIMANGALAM, MULAVUKAD P.O. BY ADV SRI.T.M.ABDUL LATHEEF ## **RESPONDENTS:-(APPELLANTS/PLAINTIFFS)** - 1 JANAKI, W/O. LATE ITTAMAN, THANDASSERY HOUSE, MULAVUKAD, ERNAKULAM-683 205. - 2 SUJATHA T.E., D/O. ITTAMAN & W/O. K.A.MOHANDAS, THANDASSERY HOUSE, MULAVUKAD, ERNAKULAM-683 205. BY ADVS. SRI.DEEPAK T.NEDUNGADAN SRI.M.K.DILEEPAN SMT.P.SUMITHRA **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A NO. 282 OF 2014 ## **JUDGMENT** ## **Dated this the 19[th] day of December, 2022.** Appellant is the defendant in O.S.No.1660/2005 on the file of IInd Additional Munsiff's Court, Ernakulam. Suit is one for permanent injunction. (Parties will hereafter be referred as per their status before the trial court) Plaintiffs are alleged to be the absolute owners in possession of the plaint schedule property having an extent of 8 cents of land comprised in survey No.312 of Mulavukad Village. This property along with other properties originally belonged to deceased Ittaman and his brother Raman and they purchased the property as per document No.760/1958 of Ernakulam S.R.O. Subsequently, the property was partitioned as per partition deed No.2007/1973 of Ernakulam S.R.O. Plaint A schedule property was set apart to deceased Ittaman and B schedule property to Raman. Plaint schedule property is item No.2 in A schedule property in the partition deed. Ittaman died ## R.S.A NO. 282 OF 2014 **3** in the year 1976, leaving plaintiffs as his legal heirs. Defendant is a tenant of the building No.VII/63, VII/64 and VII/65 of Mulavukadu Panchayath. The building is constructed on the rear side of the plaint schedule property. Defendant has no other right, claim, title than the tenancy or occupation over the building. On 05.12.2005 when there was attempt to increase the plinth area of the building and dump waste in the plaint schedule property causing inconvenience to the enjoyment of the property by the plaintiffs, the suit has been filed. 2. The defendant filed written statement contending that suit property originally belonged to Pathumma Bai and she gave 4 Cents of property to late P.K.Aboobacker, father of the defendant considering the services rendered by him. That the said portion of property was given for the purpose of constructing a building by way of license and defendant's father constructed a building with three rooms and varadah and the building was with tiled roof. It was constructed before 70 years R.S.A NO. 282 OF 2014 **4** and license is irrevocable one. In that building, business was being done by the father of the defendant and which was later given to defendant by his father excluding all others. Defendant is paying tax and his brother Muhammed Ali is doing business on his behalf as permitted by the defendant. There was no tenancy arrangement between the plaintiffs and the defendant. Building is almost situated on the rear side of 4 cents of property The plaintiffs and predecessors in interest were aware of the license right given to the defendant and no claim of any title over property having 4.5 Cents was ever made by the plaintiffs or their predecessor in interest. The said 4.5 Cents of property is in exclusive possession of the defendant from 1985 onwards, and before that defendant's father was in exclusive possession and enjoyment of the property. So claim of title if any upon plaintiffs over 4 cents is lost by adverse possession and limitation due to continious , uninterrupted, open and peaceful possession and enjoyment of the said 4.5 Cents of property and building for ## R.S.A NO. 282 OF 2014 the last more than 70 years, even prior to the purchase of property by Ettaman and Raman. Hence defendant has got every right to carry out any additional construction . 3. PW1 examined. Exts.A1 and A2 marked from the side of the plaintiffs. DWs 1 to 4 examined and Exts.B1 to B16 marked from the side of the defendants. Ext.C1 also marked. 4. On evaluating the facts circumstances and evidence adduced, Trial court dismissed the suit. Aggrieved by the same, appellants/plaintiffs filed appeal and the 1[st] appellate court on reappreciating the facts circumstances and evidence, reversed the judgment and decree passed by the Trial court and decreed the suit. 5. Against which appellant/defendant approaches this Court in this second appeal. At the time of admission, the following substantial question of law has been framed; 1. Was the lower appellate court justified in limiting the R.S.A NO. 282 OF 2014 **6** right of the defendant to the extent that he is entitled to right only to the building as is now existing and not to the land also which, according to the defendant, was the subject matter of the licence ? 6. Notice was issued to the respondents and respondents appeared through counsel. LCR were called for and perused. Both sides were heard. 7. According to the learned counsel for the appellant, the specific contention of the defendant is that there is no landlord - tenant relationship between plaintiffs and defendant and he never took the building on rent from the plaintiffs or their predecessor and there is no evidence adduced from the side of the plaintiffs to prove that the buildings were let out by them to the defendant. The specific contention of the defendant is that defendant is in possession of 4 Cents of land as given by Pathumma Bai in consideration of the services rendered by him. His father put up the building and conducted business and R.S.A NO. 282 OF 2014 **7** subsequently father gave the property to him excluding all others. It is also his contention that plaintiffs has no title over plaint schedule property and predecessor in interest of the plaintiffs Pathumma Bai had 44 Cents of property in total and out of which only 40 Cents was sold to the plaintiffs predecessor and the balance 4 Cents of property was given to his father and father has been in open uninterrupted possession of the property. If at all the plaintiffs or their predecessor had any right over the property, it has been lost by continious uninterrupted open enjoyment of the same by the defendant. It is also his contention that as permitted by Pathumma Bai ,his father put up a permanent construction and hence, the benefit under Section 60(b) of the Indian Easements Act, 1882 is also available to the defendant. It is further contended that he produced tax receipts to prove the possession and enjoyment of the building from the period relating to 1990 - 2007. He also examined three witnesses to prove his possession and enjoyment R.S.A NO. 282 OF 2014 of the property. It is also his contention that property description in the plaint is not tallying with the commissioner's report and hence, the identity of the property is not proved. 8. The learned counsel for the plaintiffs on the other hand would contend that defendant has no consistent case. In the written statement, their specific contention is that building has been constructed before 70 years whereas during evidence he would depose that it was a pond and subsequently reclaimed by them . During cross examination, his version is that the property was given before 70 years and that was a big pond and they were given permission to cultivate fish as a means of livelihood by Ibrahim Sulaiman Set. For 5 years, they cultivated fish and there after permission was given to reclaim the pond, but that is not stated in the written statement. It was reclaimed before 55 years. Provision store is being conducted for last 55 years. So that version according to the learned counsel is inconsistent. He would also contend that in order to claim ## R.S.A NO. 282 OF 2014 adverse possession the defendant has to admit the title of the plaintiffs and further that though benefit of Section 60(b) is also claimed as per Section 17 of the Registration Act, 1908, it is compulsorily registrable. It is also his contention that there is no dispute regarding the identity of the property in the written statement since it has been clearly admitted in the written statement that suit property belonged to Pathumma Bai and she give 4 Cents for constructing the building by way of licence to defendant's father. He would also contend that payment of building tax by the defendant will not confer any title. 9. Though the learned counsel for the defendant would vehemently contend that burden of proof is upon the plaintiffs to prove that the building was let out by them to the defendant and no evidence whatsoever has been adduced by the plaintiffs to prove that contention and further that title deed of the plaintiffs produced would not prove that plaint A schedule item No.2 is having any shop buildings, it is to be noted that Ext.A2 R.S.A NO. 282 OF 2014 deed proves that 8 Cents of property described therein was set apart towards the share of the predecessor of the plaintiffs. Defendant set up a separate claim of right over 4 Cents of property alleged to have obtained from Pathumma Bai and wherein his father put up the building. So the burden is upon the defendant to prove that the building which are now being occupied by him is in the said property given by Pathumma Bai . Since it is an independent right claimed by the defendant, it is for him to prove that fact as per Section 101 and 102 of the Indian evidence Act, 1872. Though DWs 2 to 4 were examined, none of them deposed regarding the construction of the building by the predecessor in interest of the defendant as per the consent given by Pathumma Bai. DWs 2 to 4 only speaks about the conduct of provision shop by the father of the defendant. DW3 is conducting a conducting a cycle shop in one of the rooms and he claimed to have taken the building on rent from the defendant. DW4 is also an occupant in one of the rooms and DWs R.S.A NO. 282 OF 2014 **11** 3 and 4 are claiming to pay rent to DW1 . So their evidence will not in any way establish the case of the defendant that 4 Cents of property was given by Pathumma Bai to defendant's father and with her permission his father put up the shop rooms. 10. On the other hand Ext.A2 deed produced by the plaintiffs would prove the purchase of property by Ittaman and Raman, the husband and father of the 1[st] and 2[nd] plaintiffs as well as his brother and the subsequent partition in between them. Though the learned counsel would highlight the fact that there is no reference with regard to the buildings in item No.2 of A schedule in Ext.A2, that would not in any way would leads to an inference that it is the defendant or his father who had put up the building in the property. So also though Ext.B1, possession certificate has been produced by the defendant it has been marked subject to proof and no steps was taken by the defendant to prove Ext.B1 by examining the Secretary of the Gramapanchayat who issued the certificate. So Ext.B1 cannot be ## R.S.A NO. 282 OF 2014 **12** acted upon. It is true that defendant produced Exts.B2 to B16 which are receipts for payment of building tax and electricity bill. But those documents will not in any way prove the title of the defendant.In Savad v Abdul Wahab 2019(1) KLT SN 74(c.No.98) it has been held that electricity receipts or notices issued by K.S.E.B can not be taken as evidence establishing possession. So also admittedly by the plaintiffs the defendant is occupying the building as tenant and the suit has been filed when there was apprehension of trespass into surrounding area and extending the plinth area of the building and making structural alteration and modification. 11. _**Subramnya Swamy Temple Ratnagiri v. V. Kanna Gounder**_ [(2009) 3 SCC] was relied on by the learned counsel for the defendant. But the fact situation of that case has no application in the present case because plaintiffs are claiming to be the title holders of plaint schedule property and the question is not as to who is having better possessory title. In that R.S.A NO. 282 OF 2014 **13** decision, appellant temple was in prior possession of puramboke land.Respondent encroached upon a portion of puramboke land,then it was held that option of the plaintiff is to evict the respondent on the basis of its possessery title. 12. In _**Yamuna Nagar Improvement Trust v. Khariati Lal**_ [(2005) 10 SCC 30] relied on by the learned counsel, it has been held that when the plaintiffs approached this Court for permanent injunction claiming to be the owner of the property, it is his duty to prove that he was owner of the property which remained in his possession and defendant had no right title and interest therein. But in the present case, possession of the shop building with the defendant is not in dispute and plaintiffs case is that the defendant is occupying the building as a tenant. It is true that the plaintiffs could not produce any documents to prove the tenancy arrangement or receipt of rent from the defendant. But plaintiffs produced the title deed and though defendant sets up a claim of obtaining 4 Cents of land from R.S.A NO. 282 OF 2014 **14** Pathumma Bai and with her consent his father put up the building in the plaint schedule property and he is absolute owner of 4 Cents of property, there is no materials whatsoever apart from his bald allegation in the written statement regarding such entrustment of land by Pathumma Bai and construction of building by his father in the plaint schedule property. So in the absence of any materials to substantiate the contention of the defendant that the property was given to his father by Pathumma Bai considering the services, merely because of the fact that he was possessing the building situated in the plaint schedule property owned by the plaintiffs, it cannot be concluded that it is defendant's father who had put up building as permitted by Pathumma Bai. 13. It is true that the learned counsel for the defendant has also got contention that the total extent of property was 44 Cents and only 40 Cents has been sold to the predecessor in interest of the plaintiffs and the balance 4 Cents has been alloted to him by R.S.A NO. 282 OF 2014 **15** Pathumma Bai and plaintiffs did not produce the prior title deed, to suppress that fact. That also is not at all a sustainable contention since the defendant cannot expect the plaintiffs to prove his case by producing their document. If at all there is any such arrangement in between Pathumma Bai and the father of the defendant, he could have very well examine witnesses or produce document to substantiate that contention. 14. It is also contended that plaint schedule property is not identified and since there is balance 4 Cents of property left with Pathumma Bai, Plaintiffs ought to have taken steps to measure plaint schedule property to identify the same. First of all, apart from the wild allegation in the written statement regarding the alleged arrangements with Pathumma Bai with his father, there is no evidence whatsoever to substantiate the contention. It is also to be noted that eventhough defendant is claimed to have obtained the property from Pathumma Bai, he could not produce any property tax receipt at least to prove his possession of the R.S.A NO. 282 OF 2014 **16** property. Only building tax receipt and electricity bill has been produced and those documents has no significance at all since it is an admitted case of the plaintiffs that he is occupying the building as tenant. 15. The learned counsel would next content that adverse possession has been claimed against Pathumma Bai and not against the plaintiff and the 1[st] appellate court misinterpreted the contention and found that the defendant admitted the ownership of the plaintiffs since he has claimed adverse possession and limitation as well as the benefit under Section 60(b) of the Indian Easements Act. But it has already been found that defendant failed to prove the alleged licence arrangement between Pathumma Bai and his father. Defendant also did not dispute the transfer of 40 Cents of property by Pathumma Bai in favour of Ittaman and Raman. So the burden is upon the defendant to prove that there was 44 Cents of property in total and the building is in the remaining 4 Cents left out after sale. R.S.A NO. 282 OF 2014 **17** Moreover, plaintiffs admits the possession and occupation of the building by the defendant as tenant. So the question of adverse possession and permanent license also do not arise. So also defendants has no consistency with regard to land in possession. In some places in written statement the land in possession is averred as 4 Cents and in some other places, the extent is stated as 4.5 Cents. Hence, as found earlier there is no convincing evidence to establish that the building in question has been constructed by the father of the defendant. Consequently, _**Jai Narayan v Sri Ram Narain**_ [AIR 1989 Allahabad 182] relied on by the defendant has no application in this case. That was a case in which owner of property granted a particular extent of land with right to construct a house. He constructed the house leaving a portion of land appurtenant to it and was in use of the same. Subsequently, dispute arouse with respect to that land. In that context it was found that appurtenant land is being used by the plaintiff for tethering cattle and other miscellaneous acts and ## R.S.A NO. 282 OF 2014 that land is part and parcel of the land which was given on licence and hence, section 60 is attracted. But it has already been found that defendant failed to prove that the schedule property is part and parcel of 4 Cents of licensed property belonging to Pathumma Bai in which his father has put up the buildings. So on evaluation of facts and circumstances and evidence adduced, I am of the considered view that first appellate court appreciated the facts and law in a correct perspective and I find no reason to interfere with the same. Hence, appeal dismissed. In the facts and circumstances parties shall bear their respective costs. Sd/- rps/ ## **M.R.ANITHA, JUDGE**