Regular Second Appeal No. 862 of 2020 (Seetha and Ramanan vs Unni Velappan Asari and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** ## **WEDNESDAY, THE 31[ST] DAY OF AUGUST 2022 / 9TH BHADRA, 1944** ## **RSA NO. 862 OF 2020** **AGAINST THE ORDER/JUDGMENTAS 39/2017 OF PRINCIPAL SUB COURT,ATTINGAL** ## **OS 5/2013 OF MUNSIFF COURT,VARKALA** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** - **1 SEETHA AGED 63 YEARS D/O. CHELLAPPAN ASARI, ALUVILA VEEDU, NEAR GHS, VARKALA VILLAGE AND DESOM, THIRUVANANTHAPURAM DISTRICT - 695001,** - **2 RAMANAN AGED 65 YEARS** - **S/O. KRISHNAN ASARI, ALUVILA VEEDU, NEAR GHS, VARKALA VILLAGE AND DESOM, THIRUVANANTHAPURAM DISTRICT - 695001,** - **BY ADV LATHEESH SEBASTIAN** ## **RESPONDENTS/RESPONDENTS 2 TO 7/PLAINTIFFS 2 TO 4:** - **1 UNNI S/O. VELAPPAN ASARI,AGED 57 YEARS, NOW RESIDING AT KULANGARA VILAKOM VEEDU, KALIPPAINKULAM, THIRUVANANTHAPURAM FROM ALUVILA VEEDU, NEAR GHS VARKALA, VARKALA VILLAGE, VARKALA P.O., THIRUVANANTHAPURAM DISTRICT - 695141,** - **2 RAMACHANDRAN ASARI AGED 75 YEARS** - **S/O. CHELLAPPAN ASARI, KULANGARA VILAKOM VEEDU, KALIPAINKULAM, THIRUVANANTHAPURAM - 695009.** - **3 GOPI ASARI AGED 69 YEARS** - **S/O. CHELLAPPAN ASARI, IB/31, 3RD FLOOR, KRISHA BUILDING, LINK ROAD, BHAGAT SINGH NAGAR, GOREGOAN, MUMBAI - 400104.** - ***4 SARASWATHY AGED 59 YEARS** - **W/O. THANKAPPAN ASARI, AGED 59 YEARS, VILAYIL VEEDU, KAVALAYOOR DESOM, MANAMBOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT – 695144. [DIED. RESPONDENTS 5 AND 6 ARE RECORDED AS LEGAL HEIRS OF DECEASED R4 AS PER ORDER DATED 26/08/2022 IN MEMO DATED 25.08.2022 IN RSA 862/2020].** - **5 SYAMLAL AGED 33 YEARS** - **S/O. THANKAPPAN ASARI, VILAYIL VEEDU, KAVALAYOOR DESOM, MANAMBOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695144.** - **6 SANJEEV AGED 31 YEARS** - **S/O. THANKAPPAN ASARI, VILAYIL VEEDU, KAVALAYOOR DESOM, MANAMBOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695144. BY ADVS. K.P.SANTHI TARA PREM** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31.08.2022, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.No.862/2020 **2** ## **JUDGMENT** The Regular Second Appeal has been directed against the judgment and decree passed in A.S.No.39/2017 on the file of Subordinate Judge's Court, Attingal, which arose out of the judgment and decree in O.S.No.5/2013 on the file of Munsiff's Court, Varkala. 2. The defendants are the appellants. The suit was one for eviction and recovery of possession. Parties would hereinafter be referred as per their status before the trial court. 3. Plaintiffs and first defendant are siblings. Second defendant is the husband of the first defendant. Plaintiffs obtained the plaint schedule property as per Gift Deed No.2406/1984 of Sub Registry Office, Varkala. The plaint B schedule property is the building situated in plaint A schedule property. Defendants have no manner of right over plaint A and B schedule properties. On 25.08.1996 defendants along with two others attempted to trespass into plaint A schedule property and R.S.A.No.862/2020 **3** thereupon O.S.No.225/1996 was filed seeking for an injunction. That suit was decreed in favour of the plaintiffs. A.S.No.83/1998 filed against the judgment and decree was dismissed and it has become final. On 01.08.2008 defendants trespassed into a portion of building and started residence there. Thereafter, plaintiffs filed petition to prosecute the defendants for violating the decree in O.S.No.225/1996. That petition happened to be dismissed, against which, O.P.(C)No.1243/2010 was filed. Defendants, after trespass to B schedule, damaged a portion of kitchen and veranda. Defendants are having house at Kudappanakkunnu. The second plaintiff's family is residing in the plaint schedule building. Hence, the suit. 4. Defendants filed written statement denying the right and title of the plaintiffs over plaint schedule properties. Plaint schedule property is in the occupation of the defendants and their family. The plaintiffs got the Gift Deed executed exerting undue influence upon the mother. The description of the plaint B schedule is incorrect. Defendants never violated the order in O.S.No.225/1996. E.P.No.49/2007 and E.A.No.105/2008 was dismissed after hearing both parties. First defendant is born and brought up in the plaint schedule property and after her R.S.A.No.862/2020 **4** marriage the second defendant is also residing with her. They have not caused any damage to any portion of the building as alleged. Plaintiffs are not residing in the plaint schedule property and they are residing at Kalippankulam near Manakkadu. First and 4[th] plaintiffs are residing at Manamboor and Mumbai respectively. Plaintiffs are not having any title or possession over the plaint schedule properties. 5. PWs 1 and 2 examined and Exts.A1 to A6 marked from the side of the plaintiffs. DW1 examined and Exts.B1 to B13 marked from the side of the defendants. 6. The learned Munsiff on evaluating the facts, circumstances and evidence found that plaintiffs proved their right and title over the plaint schedule properties and entitled for recovery of possession of plaint B schedule property. Against the judgment and decree passed by the learned Munsiff, A.S.No.39/2017 was filed before the Sub Court, Attingal. The learned Sub Judge on re-appreciating the facts and circumstances and evidence confirmed the judgment and decree passed by the trial court and dismissed the appeal. 7. Having lost before the two forums, appellants R.S.A.No.862/2020 **5** approaches this Court in this Regular Second Appeal. 8. Notice was issued to the respondents and both sides were heard. 9. Learned counsel for the appellants would contend that Exts.B1 and B2 produced from the side of the defendants would prove the defendants' possession of the property even at the time of filing of the suit and non-consideration of Exts.B1 and B2 has caused serious prejudice to the defendants. In O.S.No.225/1996 also defendants contended that they are in possession of the property and finding their possession Exts.B1 and B2 orders were passed. 10. Defendants were in possession of the property even at the time of filing of O.S.No.225/1996 and the present suit has been filed only on 03.01.2013 after 16 years of continuous uninterrupted hostile possession of the defendants and hence appellants prescribed title by adverse possession though it is not specifically pleaded. 11. The plaint schedule property was obtained by the plaintiffs as per Gift Deed No.2406/1984, the attested copy of which is produced and as Exts.A4. Plaint B schedule building R.S.A.No.862/2020 **6** admittedly is situated in plaint A schedule property. Ext.A5 is the tax receipt, which would prove that plaintiffs effected mutation and paid tax with respect to plaint A schedule property. The specific case of the plaintiffs is that when an attempt was made by the defendants to trespass into plaint A and B schedule properties on 25.08.1996 O.S.No.225/1996 was filed for permanent injunction against trespass into the plaint schedule properties and forcefully taking usufructs or committing any acts detrimental to the ownership and possession of the plaintiffs over plaint schedule property and further from committing any obstruction to the plaintiffs' residence in the building situated in the plaint schedule property. That suit was decreed. Ext.A1 is the copy of the judgment in O.S.No.225/1996 and Ext.A2 is the attested copy of the decree in that case. Ext.A3 is the attested copy of the decree in A.S.No.83/1998. So Exts.A1 to A3 would prove the plaintiffs possession over plaint schedule property. Though it has been contended by the learned counsel for the defendants that Exts.B1 and B2 would prove that the defendants' possession over the plaint schedule properties, the specific case of the plaintiffs is that on 01.08.2008 defendants trespassed into a portion of the building and started residence there and in R.S.A.No.862/2020 **7** pursuance of the same they filed petition for prosecuting the defendants for violating the decree of injunction. Though that was dismissed they alleged to have filed O.P.(C)No.1243/2010. It is subsequent to that the present suit has been filed. The judgment and decrees, Exts.A1 to A3, would prove concurrently the plaintiffs' possession over the plaint schedule property and defendants were restrained from trespassing into the plaint schedule property. 12. Plaintiffs relied on Ext.A4 Gift Deed executed by their mother in their favour on 05.06.1984 bequeathing 6 Ares of property in Survey No.1015/A/9 in favour of the plaintiffs out of love and affection. Subsequently, mutation was effected. Ext.A5 tax receipt would substantiate that fact. So, as has been concurrently found by the courts below, the defendants have no subsisting right over the plaint B schedule property. It has also come out from the evidence of first defendant that she had filed O.S.No.184/1996 to set aside Ext.A4 Gift Deed and that was dismissed. So the earlier attempt made by the first defendant to challenge the Gift Deed executed by the mother in favour of the plaintiffs also ended in vain. The decree passed in the favour of the plaintiffs in O.S.No.225/1996 which is subsequently R.S.A.No.862/2020 **8** confirmed in A.S.No.83/1998 would prove the right and possession of the plaintiffs over the plaint schedule property. Though the subsequent execution petition filed by the plaintiffs against the defendants for violation of the injunction decree ended in dismissal, it is alleged to have been challenged by filing Original Petition before this Court. Moreover, the dismissal of execution petition to prosecute the defendants for violation of decree itself will not confer any right or title upon the defendants over the decree scheduled properties. Even though the defendants have got a specific contention that the first defendant has been residing in the plaint schedule property right from her birth and the second defendant is residing with her from the date of her marriage, they could not establish any legal right to occupy the plaint schedule property after the execution of the gift by the mother in favour of the plaintiffs and Ext.A5 tax receipt also would prove that the plaintiffs mutated the property in pursuance of the gift deed and is paying tax with respect to the property gifted to them. 13. A contention has been advanced by the learned counsel for the defendants that due to the dismissal of the earlier suit O.S.No.225/1996 a subsequent suit is barred as per R.S.A.No.862/2020 **9** Order 2 Rule 2 of the Code of Civil Procedure. But admittedly the first suit was one for injunction. The specific case of the plaintiffs is that they were in possession of the plaint schedule property and that has been substantiated by a decree passed in their favour and which was confirmed in the first appeal and that was not further challenged. Plaintiffs have also got a specific case that subsequent to the decree on 01.08.2008 the defendants trespassed into plaint B schedule property and started residence there and thereupon the present suit was filed seeking for eviction as well as recovery of possession. So when O.S.No.225/1996 was filed the defendants were not in possession of the plaint schedule property so as to seek relief of eviction or recovery of possession. Order 2 Rule 2 of CPC provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Sub-rule (2) of Rule 2 of Order 2 further provides that when a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. R.S.A.No.862/2020 **10** 14. Here, when the first suit was filed the apprehension is only trespass into the plaint schedule property and only after passing of decree the defendants alleged to have forcefully trespassed into a portion of plaint schedule property which has been separately scheduled as B schedule. Hence when O.S.No.225/1996 was filed there was no cause of action for filing the suit for recovery of possession or eviction. So the bar under Order 2 Rule 2 will not apply in the filing of the present suit due to the filing of O.S.No.225/1996. So the contention so raised by the learned counsel is not sustainable in law. Though a contention of adverse possession and limitation has been raised in the second appeal, admittedly, there is no such pleading in the written statement and no issue also raised in that regard. 15. In Harihar Sahu v. State of Orissa and Anr [2017 KHC 4584] it has been held that a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession continued and (e) his possession was open and undisturbed. In Krishnamurthy S Setlur Dead by LRs v. O.V. Narasimha Shetty and Ors [2007 (3) SCC 569] it has been R.S.A.No.862/2020 **11** held that plaintiff must plead and prove the date on and from which he claims to be in exclusive, continuous and undisturbed possession and also that such possession was actual and to the knowledge of the real owner. So in the fact situation of this case admittedly by the appellants the plea of adverse possession was not specifically taken either in the written statement or during evidence. So the appellants/defendants cannot raise a plea of adverse possession during this stage. 16. Though the defendants contended to be in continuous uninterrupted possession of the plaint schedule properties right from the birth of the first defendant, no document proving their title over the schedule property has been produced by the defendants. Exhibits produced from the side of the defendants would include ration card, copy of the voters list, extract of admission register. Though ration card, extract of admission register, attested copy of election I.D.Card etc are produced admittedly the first defendant is a sibling of the plaintiffs and all the parties might have been born and brought up in the same house and the specific case of the plaintiffs is that by virtue of Ext.A4 gift deed the mother gifted the property in favour of the plaintiffs and in pursuance of the same they mutated property R.S.A.No.862/2020 **12** and paid tax also. So the production of ration card or copy of the school admission register or I.D. Card etc. will not in anyway prove any right or title to the defendants over plaint B schedule building. 17. On evaluating the entire facts and circumstances and evidence, I am of the view that courts below have concurrently found the plaintiffs right and title over the plaint schedule properties as per Ext.A4 gift deed executed by the mother. The defendants have no manner of right over the plaint B schedule property. So the eviction and recovery of possession ordered by the courts below are perfectly legal and proper. I do not find any substantial question of law emerging for consideration for entertaining this appeal. Hence appeal is found to be devoid of any merit and is liable to be dismissed. 18. The learned counsel for the defendants would contend that the case stand posted for delivery before the trial court and defendants should be given a breathing time for finding out an alternate accommodation and sought for six months time for vacating from plaint B schedule building. Learned counsel for plaintiffs though requested to restrict the period to four months, R.S.A.No.862/2020 **13** further did not press for restricting the period and hence six months time is granted to the defendants for vacating plaint B schedule building. In the result, appeal dismissed without cost and the appellants/defendants are given six months time to vacate the plaint B schedule building. The defendants shall file an undertaking affidavit before the execution court within one month agreeing to vacate the plaint B schedule building within six months starting from 31.08.2022. If the defendants did not vacate the premises within the time stipulated, plaintiffs can continue with the delivery proceedings. Sd/- **M.R.ANITHA** shg **JUDGE**