P.K. Abdullakunhi (through legal heirs) v. Andunhi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 26[TH] DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943** **RSA NO. 1306 OF 2009** **AGAINST THE DECREE AND JUDGMENT DATED 27.08.2009 IN AS 27/2007 OF SUB COURT, KASARAGOD, KASARGOD AGAINST THE DECREE AND JUDGMENT DATED 08.02.2007 IN OS 275/2006 OF ADDITIONAL MUNSIFF, KASARAGOD, KASARGOD** ## **APPELLANT/APPELLANT/8TH DEFENDANT:** *1 P.K.ABDULLAKUNHI (DIED) (LEGAL HEIRS IMPLEADED) S/O.MOIDINKUTTY, UBARLA HOUSE, KUBANOOR VILLAGE,POST BEKUR,, KASARGODE. ADDL.A2 NABEESA U.T., AGED 68 YEARS W/O.LATE ABDULLA KUNHI P.K., ZEENATT MANZIL, P.O.BEKUR, VIA UPPALA, KASARGODE. ADDL.A3 KULSU, AGED 52 YEARS W/O.ABDULLA SANTHIKODE, P.O.BEKUR,NEW BADRIYA MANZIL, VIA.UPPALA, KASARGODE. ADDL.R4 MAIMMONA, AGED 51 YEARS W/O.N.IBRAHIM,RUBY MANZIL, P.O.PAIVALIKA, VIA.UPPALA, KASARGODE. ADDL.A5 RAMLA, AGED 48 YEARS W/O.ABDUL KHADER, PAVOOR P.O., VIA.MANJESWAR, KASARGODE. ADDL.A6 ABDUL AZIZ, AGED 41 YEARS S/O.LATE ABDULLA KUNHI, ZEENATH MANZIL, P.O.BEKUR, VIA.UPPALA, KASARGODE. ADDL.A7 ZURAIR, AGED 38 YEARS S/O.LATE ABDULLA KUNHI, ZEENATH MANZIL, P.O.BEKUR, VIA.UPPALA, KASARGODE. ADDL.A8 ZULAIK, **RSA NO. 1306 OF 2009** **2** AGED 36 YEARS W/O.ABDULLA ULLIGAM,ULLIGAM HOUSE, P.O.UJJAR, VIA.ARIKKAD, KASARGODE. ADDL.A9 MOHAMMED RAFEEQ, AGED 34 YEARS S/O.LATE ABDULLA KUNHI, ZEENATH MANZIL, P.O.BEKUR VIA, UPPALA, KASARGODE. ADDL.A10 FAREEDH A., AGED 31 YEARS S/O.LATE ABDULLA KUNHI, ZEENATH MANZIL, P.O.BEKUR, VIA.UPPALA, KASARGODE. BY ADVS. SRI.K.I.MAYANKUTTY MATHER SRI.P.RAHUL ## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 TO 7:** 1 ANDUNHI S/O.LATE SEEDI BEARY, UBARLA HOUSE,KUBANOOR VILLAGE, POST BEKUR, KASARGODE 2 M.A.MUHAMMADKUNHI, S/O.ABDULRAHIMAN, MALI HOUSE,, MUGU VILLAGE, KASARGODE 3 M.A.SEEDI HAJI, S/O.ABDULRAHIMAN, UJAMPADAVU HOUSE, PUTHIGE VILLAGE AND POST ,KASARGODE 4 M.A.IBRAHIM, S/O. ABDULRAHIMAN,, MALI HOUSE MUGU VILLAGE, KASARGODE 5 NAFEESA, MALI HOUSE MUGU VILLAGE, KASARGODE 6 AYSHATH JAMEELA, MALI HOUSE,MUGU VILLAGE ,KASARGOD, REPRESENTED BY NEXT FRIEND-NAFEESA 7 ZAINABATH SABEEB, MALI HOUSE,MUGU VILLAGE ,KASARGODE, REPRESENTED BY NEXT FRIEND-NAFEESA . **RSA NO. 1306 OF 2009** **3** 8 FATHIMATH SUHRA MALI HOUSE,MUGU VILLAGE ,KASARGODE, REPRESENTED BY NEXT FRIEND-NAFEESA . ADDL.R9 MOHAMMED FAROOK, AGED 46 YEARS, S/O.LATE ABDULLA KUNHI, 197/1, DAWOOD BAI FASAL BAI, ROOM NO.9, 1ST FLOOR, DONGRI, MUMBAI-400 009. ADDL.R10 MOHEEDEEN ASHRAF, AGED 45 YEARS, S/O.LATE ABDULLA KUNHI, 197/1, DAWOOD BAI FASAL BAI, ROOM NO.9, 1ST FLOOR DONGRI,MUMBAI-400 009. *(ADDL.APPELLANTS 2 TO 10 AND ADDL.RESPONDENTS 9 AND 10 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT AS PER ORDER DATED 05.06.2020 IN IA.770/2018.) BY ADV SRI.K.G.GOURI SANKAR RAI FOR R1 TO R8 THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 26.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **RSA NO. 1306 OF 2009** **4** ## **JUDGMENT** This Regular Second Appeal arises from the judgment and decree of the Additional Munsiff's Court, Kasargod in O.S. No.275 of 2006. 2. The facts giving rise to this appeal are briefly narrated below: 2.1 The plaint schedule property is 50 cents and 20.3 square meters of land in Re-survey No.20/2 of Kubanoor Village in Kasargod Taluk. The plaint schedule property originally belonged to deceased Seedi Beary, the father of the plaintiff. On the death of Seedi Beary, the plaint schedule property devolved upon his wife and children, including the plaintiff. The legal representatives left behind by Seedi Beary are his deceased wife Kaijamma, his daughter deceased Asiamma, plaintiff, Mammu Beary, Mariyamma, Zainaba and one Abdul Rahiman. Defendants 1 to 3 are the children of deceased Asiamma. Defendant No.8 purchased the right in respect of the share of plaintiff's mother Kaijamma, brothers Mammu Beary and Abdulrahiman, sisters Mariyamma and Zainaba in the plaint Schedule property. The plaintiff and Asiamma were not parties to the sale deed stated to have been executed in favour of defendant No.8. The plaintiff claims that himself and the defendants are in joint possession and enjoyment of the plaint 'A' schedule property. The plaintiff has 14/72 shares, defendants 1 to 7 together are entitled to 7/72 shares, and defendant No.8 has 51/72 **RSA NO. 1306 OF 2009** **5** shares in the plaint 'A' schedule property. There are two tiled buildings on the property. Coconut trees, mango trees, jack trees etc. are planted in the property. According to the plaintiff, he has been taking yield from the property, but defendant No.8 made an attempt to cut and remove trees from the plaint Schedule property which he prevented. The plaintiff demanded partition of the plaint Schedule property, but defendant No.8 is not ready and willing to effect partition. 3. Defendants 1 and 3 to 7 supported the claim of the plaintiff. 4. Defendant No.8 resisted the claim of the plaintiff. He pleaded that on the death of Seedi Beary the properties including plaint 'A' schedule property devolved upon his wife and children. In 1969, defendant No.8 approached the plaintiff and other legal heirs of Seedi Beary and offered to purchase the plaint 'A' schedule property. Though the plaintiff and Asiamma agreed to join the sale deed, they did not join as they were not available at the time of execution of the deed. Defendant No.8 has the absolute right in the plaint schedule property. He had paid the full market value of plaint 'A' schedule property to the executants. The consideration paid by defendant No.8 was utilised by the vendors for improving the remaining land in possession of the legal heirs of Seedi Beary. Defendant No.8 is in the exclusive possession of 'A' schedule property after the execution of the sale deed in 1969. He has been in **RSA NO. 1306 OF 2009** **6** the exclusive possession to the knowledge of the plaintiff and Asiamma. Defendant No.8 further pleaded that a week after the execution of the sale deed, the plaintiff and Asiamma approached him demanding share in the plaint Schedule property, but he refused. Thereafter, they never claimed any right over the plaint 'A' schedule property. Defendant No.8 has been enjoying the plaint 'A' schedule property openly, peacefully, continuously and uninterruptedly since 1969 as an absolute owner to the knowledge of all, including the plaintiff and his sister Asiamma. Defendant No.8 has perfected title over 'A' schedule property by way of adverse possession and ouster. The right, if any, the plaintiff had over the plaint schedule property has been lost by limitation and ouster. Defendant No.8 also pleaded that the suit is bad for partial partition and non-joinder of necessary parties. 5. The evidence, in this case, consists of the oral evidence of PW1 and DWs 1 and 2, Ext.A1 marked on the side of the plaintiff and Exts.B1 and B2 marked on the side of the defendants. 6. The Trial Court decreed the suit and a preliminary decree for partition was passed holding that the plaint schedule property shall be divided into 7 equal shares and the plaintiff is entitled to 14/72 of such shares. The Trial Court further held that the share of defendants 1 to 7 together is 7/72 and defendant No.8 is entitled to the remaining shares that **RSA NO. 1306 OF 2009** **7** he acquired by way of Ext.A1 title deed. The Trial Court also declared that the plaintiff and defendants 1 to 7 are entitled to future mesne profit. 7. Defendant No.8 challenged the decree and judgment passed by the Trial Court in OS No. 275 of 2006 before the Subordinate Judge's Court, Kasargod. The First Appellate Court confirmed the findings of the Trial Court. 8. Being aggrieved by the concurrent judgments passed by the Trial Court and the First Appellate Court, defendant No.8 has come up before this Court with this Regular Second Appeal. 9. On 16.12.2009 this Court admitted the appeal and issued notice on the following substantial questions of law: _(a) Is not the claim of the plaintiff for partition of the suit property barred by adverse possession and limitation? Whether gravity of plea and proof regarding ouster can be pressed into service to repel the plea of the appellant who is not a co-owner._ - _(b) Is not the suit filed by the plaintiff hit by the rule of partial partition.?_ - _(c) Is not the suit filed by the plaintiff bad for nonjoinder of necessary parties?_ 10. Heard the learned counsel for the appellant Sri.K.I.Mayankutty **RSA NO. 1306 OF 2009** **8** Mather assisted by Adv.Narayani Harikrishnan. 11. The learned counsel for the appellant/defendant No.8 contended that the plaintiff lost his right in the property as defendant No.8 perfected title over the property by way of adverse possession and ouster. The learned counsel further contended that the plaintiff failed to establish joint possession of the plaint Schedule property with defendant No.8 and other defendants. 12. The plaint schedule property originally belonged to Seedi Beary. The plaintiff is the son of Seedi Beary. After the death of Seedi Beary, the plaint schedule property devolved upon his wife and children, including the plaintiff. In 1969, defendant No.8 purchased plaint Schedule property by way of Ex.A1 sale deed. The executants of Ext.A1 sale deed are Kaijamma, the wife of Seedi Beary and other legal heirs of Seedi Beary except the plaintiff and Asiamma. 13. The case of defendant No.8 is that though the plaintiff and Asiamma agreed to join the sale deed, they did not join as they were not available for execution of the deed. 14. The challenge of the plaintiff is that he was not a party to Ext.A1 sale deed, and hence it is not binding on him. **RSA NO. 1306 OF 2009** **9** 15. It is clear from Ext.A1 that the vendors had specifically recited that they would obtain the consent of the plaintiff for the sale of the property and if he refused to give the consent, they would compensate defendant No.8. It was also specifically recited in Ext.A1 that vendor No.2 Asiamma had not signed the document. The Trial Court and the First Appellate Court found that the plaintiff and Asiamma did not join the sale deed. 16. Admittedly, the plaintiff and Asiamma, being the legal heirs of Seedi Beary, have acquired right and title over the plaint schedule property. The Trial Court and the First Appellate Court held that Ext.A1 sale deed is not valid and binding on the plaintiff and his sister Asiamma and that their rights in respect of the property are not affected on account of the execution of Ext.A1. The Courts below held that plaint 'A' schedule property is available for partition. 17. The challenge of defendant No.8 is based on the principle of adverse possession. It is contended that defendant No.8 perfected title in respect of the plaint schedule property by way of adverse possession and ouster. The learned counsel for defendant No.8 contended that the plea of the plaintiff that he has been in possession of the plaint schedule property had not been established. However, the First Appellate Court after re-appreciating the facts found that defendant No.8 failed to establish ouster as against the **RSA NO. 1306 OF 2009** **10** plaintiff in respect of the plaint Schedule property. 18. The concept of adverse possession is fundamentally based on the principle that a presumption arises that the actual title holder has abandoned his possessory rights if despite knowing that some other person is claiming hostile possession over his land, but he prefers to keep quiet and not to take any action against the said person as provided under the law. 19. The law of adverse possession traces back to the Code of Hammurabi. Rule 30 of the Code states thus: “if a chieftain or a man leave his house, garden, and field and hires it out, and someone else takes possession of his house, garden, and field and uses it for three years: if the first owner return and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.” ## 20. In **Perry v Clissold [(1907) A.C. 73]** the Judicial committee of the Privy Council settled the concept of the adverse possession as thus: "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitations applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. " ## 21. In **Nair Service Society Ltd. V Rev. Father K.C. Alexander (AIR 1968** **RSA NO. 1306 OF 2009** **11** **SC 1165)** a three Judge Bench of the Apex Court upheld the principles declared in **Perry v Clissold** _(supra)._ _22_ . In a case of adverse possession of land, possession must be adequate in continuity, in publicity and in extent to show that the possession is adverse to the true owner. The possession must start with a wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. The requisite ingredient of animus possidendi (intention to possess) should be present when claiming ownership by taking the plea of adverse possession. _23_ . In **Karnataka Board of Wakf v. Government of India & Others** **[(2004) 10 SCC 779]** , the Apex Court had an opportunity to consider the nature and acts amounting to adverse possession and held thus: “Non-use of the property by the owner even for a long time 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.” ## 24. In **P.T. Munichikkanna Reddy & Others v. Revamma & Ors [(2007) 6** **RSA NO. 1306 OF 2009** **12** **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 paperowner. 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.” _25_ . 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. 26. Yet another aspect to be considered is that defendant No.8 has not admitted the right and title of the plaintiff over the plaint Schedule property. The claim of adverse possession can only be raised against a true owner. In this view, the contention of defendant No.8 that he has perfected title by way of adverse possession cannot be accepted. Defendant No.8 failed to establish open assertion of hostile title coupled with exclusive possession and **RSA NO. 1306 OF 2009** **13** enjoyment to the knowledge of the plaintiff, who is the other co-owner. 27. The next question to be considered is whether the claim of the plaintiff was barred by partial partition. It is to be noted that defendant No.8/appellant is not a sharer or owner in respect of the rest of the other properties belonging to Seedi Beary. Hence, the appellant/defendant No.8 cannot raise the plea that the suit is bad for partial partition. In **Gopalan V. Vasu (1986 KLT 1100)** , this Court held that there is no rule of law which says that a party suing for partition will have to include all the properties to which he is entitled along with others, whatever be the capacities in which they claim partition regarding different items. Moreover, as defendant No.8 has no right over the other properties of Seedi Beary, the contention that the claim of the plaintiff is barred by partial partition will not stand. 28. Another contention raised from the side of the appellant is that the claim of the plaintiff is hit by the principle of non-joinder of necessary parties. The contention of the appellant is based on the plea that all the legal heirs of Seedi Beary are not made parties. In so far as plaint 'A' schedule property is concerned, the plaintiff and defendants 1 to 7 alone are interested, and other legal heirs of Seedi Beary are not interested in plaint 'A' schedule property. All other legal heirs of Seedi Beary transferred their right in respect of these properties to defendant No.8. Hence, the contention that **RSA NO. 1306 OF 2009** **14** the suit is bad for non-joinder of necessary parties will not stand. Substantial questions of law are answered, accordingly, against the appellant and the regular second appeal is dismissed. The parties are directed to bear their respective costs. **Sd/-** **K.BABU JUDGE** SVP