Radhamma Pillai Prasannakumary Radha Bhavan v. Madhavan Pillai Prabhakaran Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 28TH DAY OF MARCH 2017/7TH CHAITHRA, 1939** **SA.No. 181 of 2001 ( ) -----------------------** **AGAINST THE JUDGMENT & DECREE DATED 08-08-2000 IN AS 2/1997 of SUB COURT, NEDUMANGAD** **AGAINST THE JUDGMENT & DECREE DATED 24.10.1995 IN OS 118/1991 of ADDL.MUNSIFF COURT,NEDUMANGAD** ## **APPELLANT/APPELLANT/PLAINTIFF:** **----------------------------** **RADHAMMA PILLAI PRASANNAKUMARY RADHA BHAVAN, THOTTAMPARA MURI, VEERANAKAVU VILLAGE, NEDUMANGAD** **BY ADVS.SRI.T.M.CHANDRAN SRI.K.I.ACHUTHAN SRI.S.SUJITH** **RESPONDENT/RESPONDENT/DEFENDANT:** **------------------------------MADHAVAN PILLAI PRABHAKARAN NAIR NAMBUKONATH THADATHARIKATHU PUTHEN VEEDU ANACODE MURI, VEERANAKAVU VILLAGE** **BY ADV. SRI.R.S.KALKURA** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J. ------------------------------S.A.No.181 of 2001 ---------------------------------------------Dated this the 28[th] day of March, 2017** ## **JUDGMENT** Plaintiff, in a suit for declaration of title and possession over the plaint schedule property, prohibitory injunction decree and in the alternative, recovery of property on the strength of plaintiff's title, is the appellant. Two courts concurrently dismissed the suit finding that the plaintiff's claim is barred by adverse possession and limitation. 2. Heard Sri.T.M.Chandran, learned counsel for the appellant and Smt.Bindhu, learned counsel for the respondent. 3. Facts in brief are as follows: Plaint schedule property is item No.9 in F schedule to Ext.A1 settlement deed. It was set apart to the plaintiff's mother Easwary Pillai Radhamma Pillai. Plaintiff's mother Easwary Pillai Radhamma Pillai gifted the property by virtue of Ext.A2 in the year 1971 and thereby the plaintiff came into possession of the property. According to the plaint averments, the defendant/respondent has no manner of right or possession over **S.A.No.181 /2001** **2** the plaint schedule property. He attempted to trespass upon the property and hence, the suit was filed. 4. Defendant/respondent filed a written statement contending that the plaintiff has no right, title or possession over the property. According to him, he is the absolute owner of the plaint schedule property. He is in possession and enjoyment of the same. The plaint schedule property was admittedly included in Ext.A1 settlement deed. It was allotted to Gopala Pillai, father of the plaintiff's mother and he was in possession of the property. Mutation was effected in his name in respect of the property and he had been paying basic tax. While Gopala Pillai was in possession and enjoyment of the plaint schedule property, he executed a settlement deed in the year 1972, which is marked as Ext.B2. After Ext.B2, Gopala Pillai's son Vijayakumar became owner in possession of the property. Thereafter, the defendant purchased the property for a valuable reconsideration as per Ext.B1 document in the year 1979. Ever since Ext.B1, the defendant is in possession of the property and enjoying the property. He has effected improvements to the property and planted yielding trees thereon. Defendant and his assignor were **S.A.No.181 /2001** **3** paying basic tax and exercising all acts of possession. The plaintiff has no right and therefore, the suit is liable to be dismissed. 5. Before the trial court, two witnesses were examined on the side of the plaintiff and three witnesses on the side of the defendant. Exts.A1 and A2 and B1 to B3 series are the documents produced by the parties. 6. Learned trial judge found that the plaintiff has established title over the property. However, he further found that the rights of the plaintiff have been lost by adverse possession and limitation. The same view was affirmed by the lower appellate court. 7. At the time of admitting the appeal, the learned Single Judge has not framed any substantial question of law. It is well settled that a second appeal can be admitted and decided only on framing a substantial question of law. Hence, I am framing the following substantial questions of law: 1. Whether the finding of the court below that the plaintiff's title to plaint schedule property has been lost by adverse possession and limitation is proper in the light of the evidence available on record ? **S.A.No.181 /2001** **4** 2. Whether a plea of adverse possession can be sustained when it is admitted that the defendant and his predecessor possessed the property asserting title in themselves, without acknowledging the title of the adverse party ? 8. To resolve the controversy, I shall start from the anterior document through which both the plaintiff and defendant claim title. Ext.A1 settlement deed is dated 12.2.1958. This document was executed by Chempakaraman alias Raman Pillai in favour of his children and grand children. Gopala Pillai, the predecessor in title of the defendant, was son of Chempakaraman alias Raman Pillai. Plaintiff's mother Radhamma Pillai is the daughter of Gopala Pillai. Properties described in B schedule were set apart to Gopala Pillai and properties described in F schedule were set apart to Radhamma Pillai. Both parties admit that plaint schedule property is item No.9 in F schedule to Ext.A1. Going by the recitals in Ext.A1, the properties settled in the name of each beneficiary had been handed over to them. The disputed property is part and parcel of Survey No.836/5 of Veeranakkavu Village. It has come out in evidence that a large extent of property is included in Survey **S.A.No.181 /2001** **5** No.836/5 and the plaint schedule property is only a portion in the survey sub division. Plaintiff would contend that after Ext.A1 settlement deed, plaintiff's mother gifted the property as per Ext.A2 in her favour and she thereby derived title and possession over the property. 9. Per contra, the contention raised by the defendant is that the property was outstanding in the possession of Radhamma Pillai's father Gopala Pillai. It is pertinent to note that how Gopala Pillai derived possession of the property, which was not set apart to him as per Ext.A1, has not been stated in the written statement. Nevertheless, it is contended that Gopala Pillai executed a settlement deed, namely Ext.B2, in the name of his son Vijayakumar and from him the defendant purchased the property by virtue of Ext.B1 dated 16.03.1979. The suit was filed on 19.02.1991. It is therefore clear that the suit was filed within a period of 12 years. 10. Learned counsel appearing for the respondent contended that the plaintiff has not produced any document show that she or her mother was in possession of the property from 1958 onwards. On the contrary, the defendant and his **S.A.No.181 /2001** **6** predecessors have paid basic tax which is evidenced from Ext.B3 series. It is also the contention of the learned counsel that mutation has been effected in the name of Gopala Pillai as seen from Ext.B3(C) of the year 1965. It is true that the defendant has produced certain documents to show that from 1965 onwards a portion of the property in Survey No.836/5 was outstanding in the possession of Gopala Pillai as revealed from the basic tax. However, in the light of the specific admission by the witnesses on the side of defendant that vast extent of property is included in Survey No.836/5, production of basic tax alone will not advance the case of the defendant as it is not clear whether Gopala Pillai was in possession of any property in Survey No.836/5 other than the disputed property. No such plea was raised nor attempted to be proved. Therefore, merely on production of basic tax receipts, the plea of adverse possession cannot be accepted. 11. The trial court as well as the appellate court found that the property in dispute was allotted to Radhamma Pillai as per Ext.B1. However, the courts found on the basic tax receipts and oral evidence that Gopala Pillai was in possession of the **S.A.No.181 /2001** **7** property. My attention is drawn by the learned counsel for the appellant to the deposition of DW-3 wherein in cross examination, he has candidly admitted that he never asserted any right or possession over the properties set apart to Radhamma Pillai (mother of plaintiff) as per Ext.A1 settlement deed. Further down the cross examination, he has admitted that his father Gopala Pillai had no occasion to possess the property set apart to his own daughter as per 1958 document. Therefore, the essential condition to attract adverse possession that Gopala Pillai was in possession of the property with a hostile animus against Radhamma Pillai is not revealed from the oral evidence adduced. 12. The courts below committed a legal error in not appreciating the law relating to adverse possession and limitation from the correct perspective. It is trite law that in order to establish adverse possession, the main ingredients to be established are animus possidendi and corpus possissiononis. It is well settled principle that the right claimed by adverse possession has to be established by the three components namely, nec-vi, nec-clam and nec precario. In other words, it **S.A.No.181 /2001** **8** must be established that the person in adverse possession against the owner must be in possession of the property with an open assertion that he intend to exclude the real owner from possession and enjoyment of the property for a statutory period of 12 years prescribed in Article 65 of the Limitation Act, 1963. It is well settled proposition of law that adverse possession starts from a wrong and after the prescribed period, it matures into a right. In order to establish the claim of averse possession, there must be specific pleadings and proof regarding the hostile animus exhibited and the actual physical possession of the adverse possessor for the statutory period. In this case, there is no such specific pleading that the property in dispute belonged to Radhamma Pillai and Gopala Pillai, knowing that it was not his property, entered into possession of the property of Radhamma Pillai and asserted hostile right. Actually, the right set up by the defendant in the written statement is to the effect that the property was obtained by Gopala Pillai and later it devolved on his son, by virtue of settlement as per Ext.A1. Therefore, the finding of the court below that the claim of plaintiff is barred by limitation is not sustainable. **S.A.No.181 /2001** **9** 13. Learned counsel for the appellant pointed out that the decision of a single Judge relied on by the lower appellate court reported in **Raman v. Devadasa Maller [1991 (1) KLJ 377]** is no longer good law in view of the binding precedents by the Supreme Court in **T.Anjanappa v. Somalingappa [2006 (7) SCC 570].** It is held that the view taken by the High Court that the defendant's claim of adverse possession is sustainable even if they do not prove who the true owner is incorrect because in such a case requirements of proving adverse possession have not been established. If the defendant is not sure who the true owner is, the question of there being a hostile possession and the question of denying title of the true owner never arise. 14. Another decision reported in **P.T.Munichikkanna Reddy v. Revamma [2007 (6) SCC 59]** also laid down a proposition that the plea on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. 15. All these decisions were considered by a learned Single Judge of this Court in **George v. Balakrishnan [2014 (4) KLT 788].** On the basis of definite and well found reasoning **S.A.No.181 /2001** **10** the learned Single Judge found that the principle of law stated in **Raman's case (supra)** is not good law. Therefore, the view taken by the courts below that long possession without asserting hostile ownership against the true owner will constitute adverse possession is an incorrect proposition. Therefore, the foundation of the reasoning of the court below also cannot be sustained. 16. Considering the facts and circumstances, I am of the view that the plaint claim for injunction may not be allowable. However, the declaration and recovery of possession claimed by the plaintiff should be sustained in the light of the title established by the plaintiff pursuant to Exts.A1 and A2 documents. It is all the more relevant to note that the case of the defendant that it was set apart to Gopala Pillai as per Ext.A1 was not established and therefore, the subsequent documents thereto cannot confer title on them in respect of this property. As mentioned above, there is no specific plea of adverse possession as they do no set up any hostile right against Radhamma Pillai and her successor in title. Hence, I am of the view that the finding of the courts below are legally incorrect and therefore, are liable to be reversed. The substantial **S.A.No.181 /2001** **11** questions of law decided in favour of the appellant. In the result, the appeal is allowed. The suit is decreed declaring title of the plaintiff over the plaint schedule property and the plaintiff is permitted to recover possession of the property. It is made clear that the defendant, if establishes his right to claim value of improvements in the execution proceedings, the execution court shall consider the plea after affording both parties an opportunity to establish their contentions in respect of value of improvements. No order as to costs. All pending interlocutory applications will stand dismissed. JV Sd/- **A. HARIPRASAD JUDGE**