Raghavan v. Devayani

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ``` ``` RSA NO. 347 OF 2019 ``` ``` AGAINST THE DECREE AND JUDGMENT IN A.S.NO.110/2011 OF DISTRICT COURT, ALAPPUZHA ARISING FROM THE DECREE AND JUDGMENT IN O.S.NO. 726/2009 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA ``` ## **`APPELLANT/RESPONDENT/DEFENDANT:`** ## **`RAGHAVAN,`** ``` S/O.VELU, VADAKKEVELI, NORTH ARYAD MURI, KOMALAPURAM VILLAGE, ALAPPUZHA-688 538. ``` ``` BY ADV R.AZAD BABU ``` ## **`RESPONDENT/APPELLANT/PLAINTIFF:`** ``` DEVAYANI, W/O. DHANANJAYAN, VADAKKEVELI, NORTH ARYAD MURI, KOMALAPURAM VILLAGE, ALAPPUZHA -688 538 ``` ``` BY ADVS. SRI.K.S.HARIHARAPUTHRAN SMT.BHANU THILAK ``` ## **`THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON`** ``` 27.02.2024, THE COURT ON 5.3.2024 DELIVERED THE FOLLOWING: ``` ``` RSA NO. 347 OF 2019 2 ``` ## **CR** ## **JUDGMENT** Dated this the 5[th] day of March, 2024 This Regular Second Appeal has been filed by the appellant against the judgment and decree in A.S.No.110/2011 on the files of the District Court, Alappuzha, arose out of the judgment and decree in O.S.No.726/2009 on the files of the Additional Munsiff Court, Alappuzha. The appellant herein is the defendant in the above suit. The plaintiff is the sole respondent herein. 2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondent. 3. I shall refer the parties in this appeal as 'plaintiff' and ‘defendant' for convenience. 4. As on 29.8.2019, my learned predecessor admitted this appeal raising the following substantial questions of law: _(i) Did not the plaintiff have the duty to give oral evidence when the dispute was whether plaint item no.2 property was part of the property of the plaintiff or the property of the defendant?_ ``` RSA NO. 347 OF 2019 3 ``` _(ii) Was it proper to decree the suit, rejecting the claim of the defendant that he had perfected title by the law of limitation and adverse possession, on the sole ground that the defendant was paying tax in the name of the plaintiff?_ _(iii) When the defendant contended that he had no intention to sell any property, was it correct to grant the relief of injunction in a case where the plaintiff did not enter the witness-box to speak to the cause of action?_ 5. Originally, suit has been filed by the plaintiff, seeking the relief of recovery of possession of plaint Item No.1 property, after demolishing plaint Item No.2 shed situated therein on the strength of title viz., sale deed No.921/1961 of Mararikkulam S.R.O. in the name of the plaintiff. According to the plaintiff, as on 15.1.2009, the defendant trespassed upon the property and constructed a shed encroaching on the eastern portion of the plaint Item No.1 property and the same necessitated filing of the suit. 6. The defendant entered appearance and filed written statement and the contention in the written statement is by raising plea of adverse possession. The relevant paragraphs of ``` RSA NO. 347 OF 2019 4 ``` ## the written statement are extracted hereunder: _“2. The averments in Para 2 of the plaint are not correct and hence denied. The plaintiff has no title on the plaint scheduled property. The plaint scheduled property forms part of the property held by the defendant for 4 decades. It is true that the property was purchased in the name of the plaintiff. The property on the East and North of the plaint scheduled property belongs to the defendant. The property lying adjoining on the plaint scheduled property on the east having an extent of 35 cents purchased by the defendant as per sale deed No.1521 dated 15-04-1965 along with the residential building therein. Thereafter the defendant started residence along with the mother and family. The property having an extent of 5 cents on the North was also held by him having obtained by the same by family partition. When he took up residence in the year 1966 he enclosed the plaint scheduled property which was lying adjoining to the 35 cents purchased by him on the east and 5 cents of property on the North obtained by the defendant as per family partition. Ever since the defendant exercised absolute possession and enjoyment of the same along with his adjoining properties having an extent of 40 cents. Ever since the plaint scheduled property is in absolute possession of the defendant which is_ ``` RSA NO. 347 OF 2019 5 ``` _open, hostile and continuous. The plaintiff has, after 1966, never exercised any act of possession or enjoyment of the same. All these years the defendant who is paying land tax. When resurvey was finalized in the year 1994 the plaint scheduled property was included in the T.P. Account No.3224 of the defendant and he is paying land tax for 18.80 Ares of land equivalent to 46.436 cents comprised in Re-Sy. No.331/12 in block No.3 of Komalapuram Village in the name of the defendant. The plaintiff has never objected to the resurvey proceedings by which the plaint scheduled property was mutated in the name of the defendant and included in his T.P. Account._ _3. The plaintiff has lost the title if any she had over the plaint scheduled property because of the long, hostile and uninterrupted possession of the plaint scheduled property by the defendant who had perfected his title by adverse possession and limitation.”_ 7. The trial court recorded evidence. No oral evidence adduced by the plaintiff. Ext.A1 certified copy of sale deed No.921/1961 was marked on the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 to B4 were marked on the side of the defendant. Exts.C1, C1(a) and C1(b) were also marked. ## **`RSA NO. 347 OF 2019 6`** Finally, the learned Munsiff dismissed the suit, holding that the defendant had perfected title over the plaint schedule property by adverse possession and limitation. 8. When the matter was taken in appeal, the learned District Judge, on re-appreciation of the evidence, at par with the pleadings tendered by both sides, reversed the verdict of the trial court and decreed the suit as under: - _“2) O.S No.726/2009 is decreed as below:-_ - _a) The appellant/plaintiff is allowed to recover the plaint schedule property on the strength of her title._ - _b) The defendant is restrained by way of a permanent prohibitory injunction from creating any document in respect of the plaint schedule property in the name of any strangers and from alienating the plaint schedule property in any manner._ - _c) The claim of title by adverse possession and limitation set up by the defendant is rejected._ - _3) The plaintiff/appellant is entitled to realise cost in the suit as well as in the appeal from the defendant.”_ 9. While attempting to upset the verdict of the first appellate court, and to restore the verdict of the trial court, the ``` RSA NO. 347 OF 2019 7 ``` learned counsel for the appellant/defendant argued that, in the written statement, the defendant raised specific contention to perfect title by adverse possession over the plaint schedule property starting from 1966 onwards and in the said case, the plaintiff did not mount the box to give evidence to prove her possession. Therefore, the trial court rightly found adverse possession in favour of the defendant and dismissed the suit. Accordingly, it is argued that reversal of the said verdict by the first appellate court, without adverting the pleadings and evidence, would require interference, by answering the substantial questions of law. 10. The learned counsel for the respondent/plaintiff repelled this contention and argued at length on the principles of adverse possession. According to the learned counsel for the plaintiff, the plaintiff sought the relief of recovery of possession, on the strength of title, after admitting possession of the property at the hands of the defendant from 2009 onwards. In support of this contention, plaintiff produced her title deed in proof of her title, thereby, her title is proved, where the defendant admitted the title of the plaintiff by raising plea of ``` RSA NO. 347 OF 2019 8 ``` adverse possession. It is submitted that in such a case, merely because the plaintiff failed to adduce oral evidence, the plaintiff could not be non suited. According to the learned counsel for the plaintiff, the title of the plaintiff could not be defeated at all and it is the duty of the defendant who pleads adverse possession to establish the same after pleading the essentials for the same and to adduce evidence to support the said plea. 11. In support of the argument, the learned counsel for the plaintiff placed reliance on the decision of the Apex Court in **Krishnamurthy S. Setlur** v. **O.V.Narasimha Setty and Others** reported in **[(2007) 3 Supreme Court Cases 569].** In the said decision, it was held as under: “ _In the matter of adverse possession, the courts have to find out the plea taken by the plaintiff in the plaint. In the plaint, the plaintiff who claims to be owner by adverse possession has to plead actual possession. He has to plead the period and the date from which he claims to be in possession. The plaintiff has to plead and prove that his possession was continuous, exclusive and undisturbed to the knowledge of the real owner of the land. He has to show a hostile title. He has to communicate his hostility to the real owner.”_ ``` RSA NO. 347 OF 2019 9 ``` The learned counsel placed another decision in **Ram Nagina Rai and Another** v. **Deo Kumar Rai (deceased) by LRs and Another** reported in **[2019 KHC 7372]** . In the said decision, it was held as under: _“Art.65 of the Schedule of the Limitation Act, 1963, viz., 12 years, is applicable in the matter to file a suit for possession of immovable property based on title. The limitation of 12 years begins when the possession of the defendants would become adverse to that of the plaintiffs. Thus, it is incumbent on the plaintiffs to file a suit for possession within 12 years from when the possession of the defendants becomes adverse to the plaintiffs. Art.65 presupposes that the limitation starts only if the defendants prove the factum of adverse possession affirmatively from a particular time. Adverse possession means a hostile assertion, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. The person who bases his title on adverse possession must show, by clear and unequivocal evidence, that the possession was hostile to the real owner and it amounted to the denial of his title to the property claimed. In deciding whether the acts alleged by the person constitute adverse possession, regard must be given to the animus of the person doing such acts,_ ## **`RSA NO. 347 OF 2019 10`** _which must be ascertained from the facts and circumstances of each case. It is needless to observe that where the possession can be referred to a lawful title, it would not be considered to be adverse, the reason being that the person whose possession can be drawn to a lawful title, will not be permitted to show that his possession was hostile to another's title. Simply put, one who holds possession on behalf of another, does not by mere denial of the other's title, make his possession adverse so as to give himself the benefit of the statute of limitation.”_ The learned counsel also placed reliance on the decision in **Shri Uttam Chand (D) through LRs.** v. **Nathu Ram (D) through LRs** . **and Others** reported in **[2020 KHC 6034].** In the said decision, it was held as follows: _“13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them:_ _"24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession_ ``` RSA NO. 347 OF 2019 11 ``` _of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners." (See Vidya Devi v. Prem Prakash [(1995) 4 SCC 496], SCC p.504, para 24.)_ _14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession:_ _"14. ... Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Art.65 [of the Limitation Act,] burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding_ ``` RSA NO. 347 OF 2019 12 ``` _whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. ..._ _15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not_ _be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at_ ``` RSA NO. 347 OF 2019 13 ``` _all. (See Annasaheb Bapusaheb Patil v. Balwant [(1995) 2 SCC 543, p.554 : AIR 1995 SC 895, p.902], SCC p.554, paras 1415.)"_ _12. In Kurella Naga Druva Vudaya Bhaskara Rao, the payment of tax receipts and mere possession for some years was found insufficient to claim adverse possession. It was held that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff's title will not be sufficient._ Again in **Shri Uttam Chand** ’s case (supra), it was held as under: **==> picture [470 x 33] intentionally omitted <==** _"15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession_ ``` RSA NO. 347 OF 2019 14 ``` _and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law."_ Apart from these decisions, two more decisions viz., **Narasamma and Others** v. **A. Krishnappa (Dead) Through LRs.** reported in **[2020 KHC 6503]** and **Ravinder Kaur Grewal and Others v. Manjit Kaur and Others** reported in **[2019 (4) KHC 256],** also have been placed by the learned counsel for the plaintiff, in support of his contention. In **Narasamma’** s case (supra), it was held as under: _“The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession, i.e.,_ ``` RSA NO. 347 OF 2019 15 ``` _whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by learned counsel for the respondent herein, which succinctly set forth the legal position. In Karnataka Board of Wakf (supra) case, it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that "....the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out (M. Siddiq (Dead) Through LRs (Ram Janmabhumi Temple Case) v. Mahant Suresh Das & Ors. (supra)). We may also note another judicial pronouncement in Ram Nagina Rai & Anr. v. Deo Kumar Rai (Deceased) by LRs & Anr., 2019 KHC 7372 dealing with a similar factual matrix, i.e., where there is permissive possession given by the owner and the defendant claims that the same had_ ``` RSA NO. 347 OF 2019 16 ``` _become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time. The legal position, thus, stands as evolved against the appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date.”_ 12. When addressing the requirements of adverse possession, the classical requirements of adverse possession are; _nec vi, nec_ clam and _nec precario_ , that it should be peaceful, open and continuous. (1) _nec vi_ means neither by force. If the rightful owner of the property is constantly visiting the property, trying to get back possession, but the adverse possessor is throwing him out and is maintaining his wrongful possession by force, then his adverse possession does not begin. (2) _nec clam_ means neither secretly. If the possession of the wrongful occupier is a guarded secret, and the legal owner cannot be reasonably expected to know of the fact of the loss of possession to the wrongful occupier, then also adverse possession does not begin. (3) _nec precario_ means neither ``` RSA NO. 347 OF 2019 17 ``` licence or permission. Since the concept of adverse possession is _nec vi nec clam nec precario,_ there must in the first instance be actual possession and secondly there must be open hostile _animus_ ; possession required must be adequate in continuity, in publicity and in extent to show that his possession is adverse to the competitor. It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession. Consonant with this principle the commencement of adverse possession in favour of a person, implies that that person is in actual possession, at the time with a notorious hostile claim of exclusive title, to repal which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the _animus_ or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the _requisite animus_ . The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It must be actual, visible, exclusive, hostile and continued for over the statutory ``` RSA NO. 347 OF 2019 18 ``` period. The hostile character of the possession is gauged by the _animus_ of the person setting up adverse possession. The question of _animus_ is a question of personal equation of the prescriber and not that of the person whose title is sought to be acquired. Thus, where a person was found to be in possession on behalf of another, notwithstanding that the latter admitted the farmer's possession to be on his own account, it could be held that the former's possession was only on the latter's behalf and not adverse to him. The animus of the prescriber alone determines the nature and quantum of the estate that is being prescribed. Adverse possession depends on intention of the occupant to claim and hold the land in opposition to the whole world and also embodies the idea that the owner or persons interested in the property have knowledge of the assertion of ownership by the occupant. Adverse possession consists of actual possession with intent to hold solely by the possessor to the exclusion of all others. 13. The learned counsel for the plaintiff argued mainly relying on the pleadings and evidence given by DW1. During cross examination, DW1, the defendant at one stage stated that ``` RSA NO. 347 OF 2019 19 ``` the property was purchased by the plaintiff. At a later point of time, he stated that the property was purchased in the name of the plaintiff by the defendant. Thereafter, DW1 given evidence that he started possession of the property from the date of purchase i.e., from 1961 onwards, but, in the written statement his case is that, he has been possessing property from 1966 alone. It is specifically pointed out by the learned counsel for the plaintiff that, DW1 given evidence that he had paid tax on behalf of the plaintiff and the same would go to show that the defendant possessed the property for and on behalf of the plaintiff and not adverse to the intent of the plaintiff. Therefore, the learned counsel argued that the first appellate court rightly re-appreciated the evidence while upsetting the finding of the trial court. 14. While addressing the arguments with reference to the substantial questions of law raised, at the outset, it is held that, it is not the absolute mandate of law that the plaintiff should have to adduce oral evidence when the dispute was whether Item No.2 property was part of the property of the plaintiff or the property of the defendant and the court is bound to look into ``` RSA NO. 347 OF 2019 20 ``` the available evidence to decide the dispute. 15. In this case, as per Ext.A1, property, having an extent of 6 cents in Sy.No.367/7 of Komalapuram Village, purchased by the plaintiff in the year 1961. The plaintiff is the direct sister of the defendant and admittedly, defendant is having property on the eastern and northern sides of the plaint schedule property. As per Ext.C1(b) plan, the Commissioner located the plot ‘ABIHA’ as property, having an extent of 6 cents as per Ext.A1 sale deed and survey plan. Thereafter, the Commissioner located 46.430 cents of property as plot ‘ABCDEFGHA’ as 35+5 cents of property covered by the title deed of the defendant, viz., sale deed No.1521/1965 in Sy.No.331/12. The Commissioner specifically located 40 cents of property obtained by the defendant excluding 6 cents as ‘BCDEGHIB’ plot. 16. As I have already pointed out, when the plaintiff asserts title and let evidence by producing the title deed in proof of title, Article 65 of the Limitation Act, 1963, would apply. The same provides as under: ``` RSA NO. 347 OF 2019 21 ``` ||**Description of suit**|**Period of**<br>**limitation**|**Time from which**<br>**period begins to run**| |---|---|---|---| |65.|For possession of immovable<br>property or any interest therein<br>based on title.<br>_Explanation._—For the purposes of<br>this article—<br>_(a)_<br> where the suit is by a<br>remainderman, a reversioner<br>(other than a landlord) or a<br>devisee, the possession of the<br>defendant shall be deemed to<br>become adverse only when the<br>estate of the remainderman,<br>reversioner or devisee, as the<br>case may be, falls into possession;<br>_(b)_where the suit is by a Hindu<br>or Muslim entitled to the<br>possession of immovable property<br>on the death of a Hindu or<br>Muslim female, the possession of<br>the defendant shall be deemed to<br>become adverse only when the<br>female dies;<br>_(c)_<br> where the suit is by a<br>purchaser at a sale in execution<br>of a decree when the judgment-<br>debtor was out of possession at<br>the date of the sale, the|Twelve<br>years|When the possession of<br>the defendant becomes<br>adverse to the plaintif.| ``` RSA NO. 347 OF 2019 22 ``` purchaser shall be deemed to be a representative of the judgmentdebtor who was out of possession. 17. It is true that in a suit for recovery of possession, the defendant is at liberty to raise plea of adverse possession as a shield with the aid of necessary pleadings, as pointed out by the Apex Court in the decisions referred by the learned counsel for the plaintiff. Going through the averments in paragraph No.3 of the trial court judgment, the case of the defendant is that, he has been possessing property from 1966 onwards and the properties surrounding the plaint Item No.1 are properties purchased by the defendant only in the year 1965. The evidence given by DW1 would suggest that he got possession of the plaint schedule property in the year 1961 i.e., on the date of purchase of the same by the plaintiff as per Ext.A1. But, in the written statement, his contention is that, he has been in possession from 1966 onwards. Thus, the defendant has no consistent case as to when he started possession of the property with hostile animus. As rightly argued by the learned counsel for the plaintiff, DW1 given evidence that he had paid tax on behalf of the plaintiff, the ``` RSA NO. 347 OF 2019 23 ``` same would go to show that the ownership of the property by the plaintiff is admitted by DW1. 18. In the instant case, the defendant is the direct brother of the plaintiff Devayani and as per Ext.A1 title deed, Devayani purchased the plaint schedule property in the year 1961. At the time of purchase, the defendant not obtained title or possession over the adjoining properties, because he did not purchase any property prior to 1965, as admitted by the defendant. Thus, the inconsistent versions given by DW1 would go to show that he failed to establish the essentials to constitute the plea of adverse possession, as discussed hereinabove and thereby, the first appellate court negatived the said contention after reversing the finding of the trial court. 19. Indubitably, in order to perfect plea of adverse possession, the person asserting the same should have to admit the title of the other party and in such a case, when the party asserting title if admits that he has been paying tax in the name of title holder for and on his behalf, that would go to show that his possession is not adverse to the interest of the plaintiff. Therefore, the second question of law answered, holding that ``` RSA NO. 347 OF 2019 24 ``` the first appellate court did not negative the claim of adverse possession by the defendant, not on the sole ground that the defendant was paying tax in the name of the plaintiff, but in consideration of inconsistent versions of the defendant and in the absence of convincing evidence to sustain adverse possession claimed by the defendant. 20. Before completion, the third question of law also required to be answered. The third question of law is ‘ _When the defendant contended that he had no intention to sell any property, was it correct to grant the relief of injunction in a case where the plaintiff did not enter the witness-box to speak to the cause of action?’_ Insofar as grant of prohibitory injunction is concerned, the apprehension of the parties seeking relief is relevant and mere admission of the opposite party to the effect that he had no intention to do the acts apprehended by the plaintiff, would not make grant of the relief impermissible and in a case where evidence would suggest grant of the said relief even without the oral evidence of the plaintiff, such a relief is liable to be granted. 21. Answering the substantial questions of law as above, it ``` RSA NO. 347 OF 2019 25 ``` is held that the appeal is liable to fail. 22. In the result, this Regular Second Appeal fails and is dismissed. All interlocutory orders stand vacated and all interlocutory applications pending in this Regular Second Appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb