RFA No. 629 of 2013 (Against the Amended Judgment and Decree Dated 10.9.2012 in O.S.310/1993, on the file of the Principal Sub Judge, Thrissur)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW FRIDAY, THE 19TH DAY OF DECEMBER 2014/28TH AGRAHAYANA, 1936 RFA.No. 629 of 2013 ----------------------- (AGAINST THE AMENDED JUDGMENT AND DECREE DATED 10.9.2012 IN O.S.NO.310/1993 ON THE FILE OF THE PRINCIPAL SUB JUDGE, THRISSUR.) APPELLANTS/DEFENDANTS: - ---------------------------------------- 1. KERALA STATE, - REPRESENTED BY CHIEF SECRETARY, SECRETARIAT THIRUVANANTHAPURAM. 2. DIRECTOR OF FISHERIES, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR, FISHERIES, BEACH ROAD, KOZHIKODE. BY SENIOR GOVERNMENT PLEADER SRI.C.R.SHYAMKUMAR ## RESPONDENTS/PLAINTIFFS: ----------------------------------------- 1. A.S. THILAKAN - (DIED), ARAYAMPARAMBIL SANKARANARAYANAN, SREEVILASAM VALAPPAD VILLAGE, CHAVAKKAD TALUK. 2. MEERA, AGED 54 YEARS - W/O.A.S.THILAKAN. 3. LEENA REMESH, W/O.R.K.REMESH, SF6 WARDERN PRASANTHI DEPARTMENT SAIBABA COLONY, OPP.K.K.PODUR COIMBATORE 4. NISHA PUSHPARAJ, HILVIEW, WEST HILL, KOZHIKODE. ## 5. SHEEBA SARATHCHANDRAN, ## KOMMADATHU HOUSE, MEEN CHANTHA, KOZHIKODE. 6. SURINKUMAR, AGED 44 YEARS, S/O.LATE ARAYAMPARAMBIL THILAKAN, SREEVILASAM VALAPPAD VILLAGE, DESOM, CHAVAKKAD TALUK. 7. SHABNA, - D/O.LATE ARAYAMPARAMBIL THILAKAN, SRIVILASAM VALAPPAD VILLAGE, CHAVAKKAD TALUK. R6 BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN R2-R5,R7 BY ADV. SRI.SRINATH GIRISH R2-R5,R7 BY ADV. SRI.S.AJITH (PALAKKAD) THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26-112014, THE COURT ON 19-12-2014, DELIVERED THE FOLLOWING: cms ## **K.ABRAHAM MATHEW J.** ------------------------------ R.F.A.No.629 of 2013 -----------------------------Dated this the 19[th] day of December, 2014 ## **JUDGMENT** The verdict in this appeal depends upon the Article in the Limitation Act that is applicable to the facts of the case. 2. The plaint schedule property having an extent of 2 acres 1 cent was in the ownership and possession of the predecessors of the plaintiff. In 1900 Chathunni, predecessor of the plaintiff handed over its possession to the government, which wanted it for the fishermen of the locality to be used as a yard for drying fish and nets. The transaction was subject to the conditions that so long as the property was used by the fisherman for the purpose for which it was given, the owner would not demand any consideration and that if the property was not used for the said purpose or the property ceased to be used for the said purpose, the owner would be entitled to resume possession. The transaction was reduced into writing, which was registered. On 23.4.1910 Sankaran, brother of Chathunni, executed an identical document which also was registered. At the partition that took place in the 'tarwad' of the plaintiff in 1970, the property was allotted to his share. In 1970 the property ceased to be used for the above purpose. The request to the government to give back possession was not complied with. The plaintiff filed O.P.No.14908 of 1992 for appropriate reliefs, which was disposed of by this court with the observation that civil suit was R.F.A.No.629 of 2013 2 the proper remedy. The plaintiff instituted O.S.No.310 of 1993 for a declaration that the two registered documents mentioned above have ceased to be in force and that he has title to the plaint schedule property. He also prayed for recovery of possession of the property and for a mandatory injunction directing the defendant State to demolish and remove the structures, if any, put up by it. The State raised various contentions in its written statement: The government, and not the plaintiff, is the owner of the property; it has made permanent constructions in the property; the license is irrevocable and it has acquired title by adverse possession; even if the property is not used for the purpose for which it was given to the government, the plaintiff has no right to recover its possession. 3. On the death of the original plaintiff his legal representatives were impleaded as additional plaintiffs. After the trial the suit was dismissed. In A.S.No.452 of 1999 this court set aside the judgment and the decree and remanded the suit. Thereafter, the impugned decree was passed granting the reliefs prayed for in the plaint. The defendant State has come up in appeal. 4. Though several contentions were raised in the trial court and several grounds have been raised in the appeal memorandum, the only argument advanced at the hearing is that the suit is barred by the Law of Limitation. The learned senior government pleader Sri.C.R.Shyamkumar fairly admitted that the pleas of the State R.F.A.No.629 of 2013 3 regarding irrevocability of the license and acquisition of title by adverse possession do not arise for consideration for want of pleadings and total lack of evidence. 5. Ext A2 is a certified copy of the partition deed by which the plaint schedule property was allotted to the plaintiff. 6. The genuineness of Exts A3 and A4 documents of 1900 and 1910 relied on by the plaintiff and the nature of the transaction and the cessation in 1970 of the use of the property for the purpose for which it was given to the government are not disputed. The transaction is a licence. The agreement provided that if the property ceased to be used as fish curing yard by fishermen the licensor would be entitled to get back its possession. This right of the plaintiff also is not disputed. 7. The three main reliefs claimed in the suit are: 1) declaration that the registered documents (Exts A3 and A4) of 1900 and 1910 have ceased to be in force, 2) declaration that the plaintiff is the owner of the property, and 3) recovery of possession of the plaint schedule property. 8.The learned Senior Government Pleader Sri.C.R.Syamkumar submits that it is Article 58 in the Limitation Act that is applicable to the facts of the case and the suit filed beyond three years from the date on which the right to sue first accrued is barred. It is also his R.F.A.No.629 of 2013 4 argument that if Article 58 is not applicable, it is Article 66 which is applicable and in that case also the suit is hit by Section 3 of the Limitation Act. On the other hand, the argument of Sri.P.B.Krishnan, learned counsel for the respondents, is that it is Article 65 that is applicable since the substantial relief prayed for is recovery of possession. 9. The first prayer in the suit is for a declaration that Exts A3 and A4 under which the government got possession of the property have ceased to be in force. Article 58 of the Limitation Act is extracted below: To obtain any other Three years When the right to sue first declaration accrues 10. It is an admitted fact that the cause of action arose in or about 1970 when the property ceased to be used for the purpose for which it was given to the government. The suit was filed in 1993. But it is submitted that the plaintiff had earlier filed O.P.No.14908 of 1992 in this court for the same relief and Section 14 of the Limitation Act saves the suit from being barred under the Law of Limitation. Section 14 of the Limitation Act has no application because by the time the OP was filed in 1992, the relief had already become time barred. There is no room for any doubt that the relief of declaration prayed for in respect of the documents is time barred. R.F.A.No.629 of 2013 5 11. Sri.P.B.Krishnan, learned counsel for the respondents, has advanced an argument that the prayer for declaration that the documents have ceased to be in force was unnecessary and the court should ignore it. ## 12. In **Gunwant Bhai Mulchand Shah & others v. Anton** ## **Elis Farel & others (AIR 2006 SC 1556)** the Supreme Court held that if in a case where there is a prayer for two different reliefs for which different periods of limitation are prescribed, the claim for one relief cannot be dismissed on the ground that the other relief is time barred, in case the two reliefs are independent. The judgment ## of this court in **Mohammed Kunju v. Sudhamma (1990 (1) KLT** **464)** also is relevant. The learned Judge has observed: “ To say that a suit for possession falls under these articles, (Article 64 and 65), it must be one in which possession is asked for as a primary relief. The positive, specific, candid case set up by the first respondent is that the documents require to be set aside and that is why the first respondent has made a specific prayer therefore. The relief for recovery of possession under the circumstances is only a consequential relief”. Yet another decision relevant is **Hardesh Ores Pvt.Ltd. v.** ## **Hede and Company (2007)5 SCC 3621** . The Supreme Court has held: “ The basis for claiming the relief of injunction, namely, a subsisting renewed agreement did not exist in fact. In its absence, no relief as prayed for in the suit could be granted by the clever device of filing a suit for injunction, without claiming a declaration R.F.A.No.629 of 2013 6 as to their subsisting rights under a renewed agreement, which is apparently barred by limitation”. 13. Where the reliefs of declaration and recovery of possession, which are closely connected, are claimed in a suit and the relief of declaration is found to be barred the test to decide whether the relief of recovery of possession may be granted is whether the relief of recovery of possession is consequential to the declaration, or whether it is an independent substantive relief. In other words, the essential question is whether the document will stand in the way of the plaintiff's getting recovery of possession. Was he required to get the declaration before he could recover possession of the property. If the answer is in the negative, the declaration is unnecessary to grant the relief of recovery of possession. 14. In the instant case there is little doubt that recovery of possession does not depend upon the declaration sought for in respect of Exts A3 and A4 documents. To put it differently, recovery of possession is not prayed for as a consequential relief of declaration that Exts A3 and A4 have ceased to be in force. So even if the relief of this declaration is time barred, the relief of recovery of possession cannot be refused if it may otherwise be granted. Even in the absence of a declaration that Exts A3 and A4 documents have ceased to be in force, the plaintiff will be entitled R.F.A.No.629 of 2013 7 to pray for declaration of his title and recovery of possession if he is otherwise entitled to it. Reliance may also be placed on the decision of the apex court in **Viswambar v. Laxminarayan (AIR 2001 SC 2607).** 15. Section 34 of the Specific Relief Act is not applicable to the facts of the case because under that provision only plaintiff's right to a property, or legal character of the plaintiff can be declared. The prayer is not to declare right or legal character of the plaintiff. The other relevant provision is Section 31 of the Specific Relief Act. This Section will be applicable only if there is a cloud on the title of the plaintiff. The documents in respect of which the declaration is sought for do not create any cloud over the title of the plaintiff. In fact, the plaintiff claims to have obtained right to recover possession on the forfeiture of the defendant's right as provided in the said documents. He wants the court to enforce the terms of those documents. The prayer for declaration in relation to the documents was unnecessary and it was made by mistake only. The plaintiff cannot be punished for it. 16. The learned senior government pleader would argue that it is Article 66 that is applicable for the relief of recovery of possession. On the contrary, plaintiff's learned counsel would submit that it is Article 65 that applies. If it is Article 66 that is applicable the plaintiff's claim should be rejected as time barred, R.F.A.No.629 of 2013 8 and in the other case it should be allowed. 17. Recovery of possession of an immovable property may be sought for on different grounds. It may be under a title deed, or under a lease agreement on determination of lease, or under an agreement of license on termination of license, or on the basis of previous possession. In the last three cases the plaintiff may not have title and title is irrelevant. In this case since the plaintiff has title to the property, he may claim recovery of possession on the strength of his title, or on the forfeiture clause which resulted in the termination of the licence, or on both. The choice is his. 18. Articles 64 to 67 of the Limitation Act provide for limitation for suits for recovery of possession of immovable property. The period of limitation is 12 years. But the time from which the period begins to run is different in each case. Where a plaintiff is entitled to claim the same relief on several grounds and the claim is barred on one or more of such grounds, but is not barred on another ground, there is no legal impediment for him to successfully maintain a suit on the basis of the ground in respect of which the claim is not barred. 19. Articles 65 and 66 of the Limitation Act are extracted below: R.F.A.No.629 of 2013 9 ## Article 65 For possession of immovable Twelve years When the possession of the property or any interest therein defendant becomes adverse based on title to the plaintiff. ## Article 66 For possession of immovable Twelve years When the forfeiture is property when the plaintiff has incurred or the condition is become entitled to possession by broken. reason of any forfeiture or breach of condition 20. The differences between Articles 65 and 66 can be easily noticed. Apart from the basis on which the relief is claimed and the time from which the period of limitation is to be reckoned, the main distinction between the cases to which the above two Articles apply relates to burden of proof. In the cases in which Article 65 applies the burden is shifted to the defendant as a result of his plea of adverse possession, while in the cases in which Article 66 applies the burden continues to be on the plaintiff till the end of the trial. ## 21. In **Zia Uddin Ahmad Khan and another v. Akbar Ali** **(AIR 1932 Allahabad 358)** , the Allahabad High Court has examined the approach the court has to make when there is a dispute as to the Article in the Limitation Act that applies to the facts of a case. According to the learned Judges, “ in determining the particular Article of the Limitation Act applicable to a case much depends on the nature of the plaintiff's claim. If the plaintiff is entitled so to frame his suit as to make a certain Article giving a favourable period of limitation applicable, it is not a valid objection R.F.A.No.629 of 2013 10 to say that he could have framed it otherwise as to make a less favourable Article applicable. The view of Lahore High Court also appears to be the same. In **Punjab Government v. L. Baij Nath & others (AIR 1945 Lahore 164)** the two Judge bench held that : “It is not the basis of the suit or the recitals of events given in the plaint that ordinarily determine the application of an Article of the Act but it is the cause of action on which the suit is founded and the relief that determine what Article has to be applied.” 22. To ascertain whether the suit is based on the forfeiture clause or the title the court has to look into the plaint only. It is not the form but the substance that should be considered. Moreover, the plaint should be read as a whole. Though in the body of the plaint, it is stated that the defendant State forfeited its right to occupy the property as it failed to use the property for the purpose for which it was given, Relief (A) in the plaint contains a prayer for declaration of plaintiff's title. The plaintiff got title not under Ext A3 or Ext A4 licence agreement, but under Ext A2 partition deed. He has pleaded his title in the plaint and proved it by Ext A2 partition deed. It is safe to conclude that recovery of possession is sought for on the basis of title and not on the forfeiture clause. Forfeiture is pleaded because it is part of his cause of action, without which the suit would not be maintainable. It is Article 65 that is applicable to R.F.A.No.629 of 2013 11 the facts of this case. 23. Sri.P.B.Krishnan rightly relied on the decision of the apex court in **Gaya Parshad Dikshit v. Dr. Nirmal Chandar and another (AIR 1984 SC 930)** in support of his argument that “mere continuance of unauthorised possession even for a period of more than 12 years is not enough” to refuse recovery of possession by the title holder. The plaintiff has not lost his right to recover the property as the defendant has not acquired title by his long unauthorised possession. Plaintiff's loss and defendant's acquisition of title can only happen simultaneously. The learned counsel has also brought to my notice the decision of the Supreme Court in **Joseph Severance Vs. Benny Mathew (2005) 7 SCC 667)** in which it is observed that only if the suit is for mandatory injunction, it should be filed within a reasonable time. It follows that if the suit is for recovery of possession, there is no requirement that it should be filed within a particular period so long as the plaintiff's title is not lost by the adverse possession of the defendant. 24. The plaintiff has a cause of action to claim the relief of declaration of his title because in the Original Petition filed in this court just before the institution of this suit the defendant State denied- for the first time- his title to the property. As the defendant is in wrongful possession, the plaintiffs/respondents have been R.F.A.No.629 of 2013 12 rightly found to be entitled to recover its possession and the other ancillary reliefs. No interference is called for. In the result, this appeal is dismissed. No costs. Sd/- **K.ABRAHAM MATHEW, JUDGE** cms /True copy P.S.to Judge