Raveendran Nair v. Gopinathan Nair and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** ## **THURSDAY, THE 7TH DAY OF MARCH 2013/16TH PHALGUNA 1934** ## **SA.No. 903 of 2002 ( )** **---------------------AGAINST THE JUDGMENT IN AS.119/1998 of I ADDL.SUB COURT, THIRUVANANTHAPURAM DATED 15-12-2001** **AGAINST THE JUDGMENT IN OS.141/1992 of PRL.MUNSIFF COURT, THIRUVANANTHAPURAM DATED 09-07-1997** ## **APPELLANT(S)/RESPONDENT/PLAINTIFF:** **------------------------------------------------------------------** **RAVEENDRAN NAIR S/O. SANKARA PILLAI, PANAVILA VEEDU, NETTAYAM, PEROORKADA VILLAGE THIRUVANANTHAPURAM TALUK.** **BY ADVS.SRI.MVS.NAMBOOTHIRY SRI.P.RAHIM** ## **RESPONDENT(S)/APPELLANTS/DEFENDANTS 1,2,4 & 5:** **--------------------------------------------------------------------------------------------** **1. GOPINATHAN NAIR S/O. SANKARA PILLAI PANAVILA VEEDU, NETTAYAM, PEROORKADA VILLAGE THIRUVANANTHAPURAM TALUK.** **2. VASANTHA KUMARI AMMA W/O. GOPINATHAN NAIR, RESIDING AT DO.DO.** **3. MANIKANTAN NAIR S/O. GOPINATHAN NAIR, RESIDING AT DO.DO.** **4. CHITHRA D/O. VASANTHA KUMARI, RESIDING AT DO.DO.** **BY ADV. SRI.K.B.PRADEEP** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ S.A. No: 903 of 2002 -----------------------------------------Dated this the 7[th] day of March, 2013 ## **J U D G M E N T** The plaintiff is the appellant. The suit filed for mandatory and prohibitory injunction was decreed by the trial court. The appellate court reversed the finding of the trial court and the suit was dismissed. 2. The case of the plaintiff is that the plaint schedule property was obtained by him as per the settlement deed of 1958 and that after obtaining the settlement deed, the buildings were constructed by him which were assigned three separate numbers. The first defendant is the brother of the plaintiff. The other defendants are the wife and children of the first defendant. The plaintiff and his family members and also his mother were residing in the building situated in the A schedule property. The first defendant being the brother and other defendants being the wife and ## **S.A. No: 903/2002** **-2-** children used to come occasionally to that building and they used to reside in that building since the mother of the first defendant was staying in the building situated in the property. Plaint B schedule property is part of the plaint A schedule property which was obtained as per the settlement deed. Since the defendants failed to vacate the house as demanded by the plaintiff the suit was filed. 3. The defendants filed written statement contending that the house mentioned in the plaint schedule property was constructed by the defendants and that the plaintiff has no title to the same. It was also contended that the plaintiff had assigned portions of the property obtained as per the settlement deed. The extent of A schedule property was shown as 1 Acre. Thereafter, the extent was amended as 1 Acre and 34.5 cents. 4. The plaintiff was examined as PW1 and Exhibits A1 to A10 were marked. DW1 and DW2 were examined ## **S.A. No: 903/2002** **-3-** and Exhibits D1 to D5(a) were marked on the side of the defendants. The Commissioner's report and plan were marked as C1 and C1(a). 5. The plot marked as FJKL MNO IEG, shown in Ext.C2 plan, submitted by the Commissioner, is the plaint A schedule property. Three buildings referred to in the plaint are situated in that plot. The defendant did not set up any title in respect of the building or in respect of the land where the buildings are situated. Ext.A1 is the settlement deed which also was not disputed by the defendants. Exts A2 to A8 are the building tax receipts for having paid the building tax in respect of the buildings situated in the plaint schedule property. The defendants also paid building tax in respect of the said building. 6. The lower appellate court found that the plaintiff did not produce document to show that the buildings are situated in the plaintiff's property. But that finding is taken **-4-** ## **S.A. No: 903/2002** exception to by the learned counsel for the appellant. Advocate Commissioner has noted the number of the three buildings. It was in respect of that building the plaintiffs had paid building tax. Exhibits A4 to A8 would show the number of the building in respect of which the tax was paid by the plaintiffs. In the other receipts the building number is not mentioned, but the tax was collected from the plaintiff. Exts. B3(a), B3(b) and B3(c) are the three receipts obtained by the 1[st] defendant for having paid the building tax in respect of the three buildings referred to above. But it is seen that those receipts were also obtained on the eve of the suit and subsequent to the suit. One receipt- Ext.B3 is seen to be not in respect of this building, since the building number shown therein is totally different. 7. That apart, no document was produced by the defendants to contend that the house in the plaint schedule property was constructed by them. The specific case set up **-5-** ## **S.A. No: 903/2002** in the plaint is that after the settlement deed executed in favour of the plaintiff the buildings were constructed by him. That was not properly controverted by the defendants. Since the title to the A schedule property was not disputed, the contention raised by the defendants that the buildings belonged to them cannot be sustained. It is true principle that, he, who is the owner of the land, is also the owner of the building situated therein is not the law in India. But when the defendants contend that the B schedule buildings are not situated in the A schedule property and when it is established with the aid of the Commissioner's report and plan, that those three buildings are actually situated within the A schedule property, the contention to the contrary advanced by the defendants cannot be accepted. The evidence and circumstances would clearly show that the building in question belonged to the plaintiffs. ## **S.A. No: 903/2002** **-6-** 8. It was held by the apex court in **Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (Dead) Thr. L. - 2012 KHC 4181** thus: “1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. 2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. 3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the **-7-** ## **S.A. No: 903/2002** premises for some time either as a friend, relative, caretaker or as a servant. 4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour. 5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.” 9. The evidence on record would show that the defendants were in possession or occupation of the house only gratuitously. In the light of the dictum laid by the apex court as aforesaid also, the defendants cannot contend that they are entitled to be in possession and that they are not liable to be evicted. Since, their possession only is ## **S.A. No: 903/2002** **-8-** permissive the lower appellate court was not justified in reversing the decree granted by the trial court. In the result, this appeal is allowed. The judgment and decree passed by the lower appellate court are set aside. The decree and judgment of the trial court will stand restored. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jvt/jjj/das