R.F.A. No.481 of 2009

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 19[TH] DAY OF JANUARY 2024 / 29TH POUSHA, 1945** **RFA NO. 481 OF 2009** **AGAINST THE DECREE AND JUDGMENT DATED 17.01.2009 IN OS 131/2006 OF II ADDITIONAL SUB COURT, ERNAKULAM** **-----** **APPELLANTS (DEFENDANTS 7 TO 11, 13, 14, 16 AND 17):** 1 SURESH KUMAR, S/O.LATE KUMARAN, RESIDING AT L.I.E 139, 139 G.C.D.A KALOOR, KOCHI 682017. 2 SUJATHA KUMARI, DAUGHTER OF LATE KUMARAN, EALICHERRY HOUSE, MARKET ROAD, KOMBARA, KOCHI 682031. 3 SUSMITHA KUMARI, DAUGHTER OF LATE KUMARAN, EALICHERRY HOUSE, MARKET ROAD, KOMBARA, KOCHI 682031. NOW RESIDING AT VELU NILAYAM NELLIPARAMBIL, CHAKKUNGUAL ROAD, PALARIVATTOM, KOCHI - 68 2025. 4 SUJITHA KUMARI, DAUGHTER OF LATE KUMARAN, EALICHERRY HOUSE, MARKET ROAD, KOMBARA, KOCHI 682031. NOW RESIDING AT ALAT HOUSE, 48/2368 D, SHANTHI NAGAR, SWAMIPADY ROAD, ELAMAKKARA, KOCHI 68 2026. 5 SUNIL KUMAR, SON OF LATE KUMARAN, EALICHERRY HOUSE, MARKET ROAD, KOMBARA, KOCHI 682031. 6 SUDHARMA KUMARI, DAUGHTER OF LATE KUMARAN, EALICHERRY HOUSE, MARKET ROAD, KOMBARA, KOCHI 682031. NOW RESIDING AT ALAT HOUSE, 48/2368 D, SHANTHI NAGAR, SWAMIPADY ROAD, ELAMAKKARA, KOCHI 682026. **RFA NO. 481 OF 2009 -2-** 7 SUKANYA KUMARI, DAUGHTER OF LATE KUMARAN, EALICHERRY HOUSE, MARKET ROAD, KOMBARA, KOCHI 682031. NOW RESIDING AT UDAYA KIRAN APARTMENTS, U.K.MARKETING, KRISHNAN KOVIL ROAD, NEAR PASSPORT OFFICE, KAITHAMUKKU, THIRUVANANTHAPURAM. 8 ASWATHY (MINOR), AGED 11 YEARS, DAUGHTER OF LATE SATHEESH KUMAR, REPRESENTED BY GUARDIAN, T.N. RAJESH, ROHINI NIVAS, 12/251, AREKKAPARAMBU ROAD, PANDIKUTY, KOCHI 682002. 9 ABIARAMI (MINOR), AGED 8 YEARS, DAUGHTER OF LATE SATHEESH KUMAR, REPRESENTED BY GUARDIAN, T.N. RAJESH, ROHINI NIVAS, 12/251, AREKKAPARAMBU ROAD, PANDIKUTY, KOCHI 682002. BY ADVS. V.K.BALACHANDRAN D.KRISHNA PRASAD K.A.SHAJI MATHEW ## **RESPONDENTS/PLAINTIFFS 2 & 3 & DEFENDANTS 1 TO 4 AND 15:** 1 MANJULA DEVI, WIFE OF UTHAMAN, CHERUPARAMBIL HOUSE, SHANMUGHAPURAM, PACHALAM, KOCHI 682012. 2 MURUKESAN, SON OF LATE GANGADHARAN, PULIKKAPPARAMBIL HOUSE, THRIKKANARVATTOM DESOM, NEAR AYYAPPANKAVU, ERNAKULAM , KOCHI 682018. 3 E.G.MADHAVAN, SON OF LATE GANGADHARAN, RESIDING AT PULIKKAPPARAMBIL HOUSE, THRIKKANARVATTOM DESOM, NEAR AYYAPPANKAVU, ERNAKULAM, KOCHI 682018. 4 MEENAKSHI, WIFE OF BHAULEYAN, RESIDING AT HOUSE NO.46/864, ASARIPARAMBIL, PACHALAM , KOCHI -12. **RFA NO. 481 OF 2009 -3-** 5 MAYA DEVI, WIFE OF PRASAD, RESIDING AT HOUSE NO.46/864, ASARIPARAMBIL, PACHALAM , KOCHI -682012. 6 E.G.SAJU, SON OF LATE GANGADHARAN,RESIDING AT PULIKKAPPARAMBIL HOUSE, THRIKKANARVATTOM DESOM, NORTH OF AYYAPPANKAVU, ERNAKULAM, KOCHI 682018. 7 SUBHASH BOSE E.G., SON OF LATE GANGADHARAN, PULIKKAPPARAMBIL HOUSE, THRIKKANARVATTOM, NEAR AYYAPPANKAVU, KOCHI 682018. BY ADVS. A.BALAGOPALAN P.J.ANTONY JOSEPH MARIADAS A.RAJAGOPALAN M.N.MANMADHAN IMTHIYAZ AHAMMED SANEESH KUMAR M.S.SREEJITH M.S.IMTHIYAZ AHAMMED M.N.MANMADAN K.SANEESH KUMAR THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 19.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.481 of 2009** **= = = = = = = = = = = = = = = = = = Dated this the 19[th ] day of January, 2024** ## **J U D G M E N T** The decree in a suit for partition and recovery of possession is under challenge by the additional defendants 7 to 11, 13, 14, 16 and 17. They are the legal heirs of the deceased 5[th] defendant. 2. One Gangadharan and Kumaran were brothers. The plaintiffs and defendants 1 to 4 are the legal heirs of Gangadharan. Kumaran was the original 5[th] defendant. Defendants 6 to 14 and 16 and 17, who were subsequently impleaded, are the wife and children of Kumaran who died pending the suit. 3. According to the plaintiffs, the plaint 'A' schedule property belonged to their mother as per document No.273/1120 ME. The mother and the father put up a residential building therein. The plaint 'B' schedule property belonged to their father Gangadharan R.F.A. No.481 of 2009 -: 2 :- as per Ext.A1 sale deed of the year 1950. 4. The suit as originally filed, was one for partition of the plaint schedule properties. The 5[th] defendant-Kumaran was impleaded stating that he is in possession of plaint 'B' schedule property. It was also stated in the plaint that no relief is sought against him. 5. Though on receipt of the summons the 5[th] defendant appeared in the suit, he passed away on 22.12.1987, before filing of the written statement. Thereafter the legal heirs were impleaded. The sixth defendant who is the wife of the 5[th] defendant Kumaran filed written statement contending that the entire facts have not been stated by the plaintiffs and hence apart from asserting possession and enjoyment over the plaint 'B' schedule property and the buildings thereon, no further rights are being elaborated. She prayed for dismissal of the suit. Subsequently the suit was amended R.F.A. No.481 of 2009 -: 3 :- seeking recovery of possession and partition of the plaint 'B' schedule property. In the meanwhile, the sixth defendant also passed away. 6. Defendants 9, 16 and 17 filed a written statement. They asserted title of their predecessors D5 and D6, over the plaint 'B' schedule property. It was contended that Kumaran was in military service. For purchasing the plaint 'B' schedule property, he had sent amounts to his brother Gangadharan. However, Gangadharan purchased the property under Ext.A1 in his name. The 5[th] defendant and 6[th] defendants enjoyed the property as its absolute owners since the year 1950, by constructing buildings, leasing them out etc. It was pleaded that, the right of Gangadharan and the plaintiffs, if any, have been lost by adverse possession and limitation. It was accordingly prayed that the suit be dismissed. 7. The trial court negatived the plea of adverse possession and accordingly decreed the suit. R.F.A. No.481 of 2009 -: 4 :- 8. The point that arises for consideration is, _“On the materials on record was the trial court right in_ _having negatived the plea of adverse possession and limitation.”_ 9. It is the case of the contesting defendants that, their predecessors, the defendants 5 and 6 were in possession and enjoyment of the plaint schedule property from the year 1950 as its absolute owners. Admittedly, Kumaran and his successors are in possession of the plaint 'B' schedule property. The evidence adduced by the contesting defendants indicate that Kumaran and his successors were in possession of the property atleast from the year 1955. Kumaran was employed else where(though defendants claim that he was in military, that is disputed by the plaintiff) and he returned to the native place during 1950’s. 10. Admittedly there are three buildings situated in the plaint 'B' schedule property. Though Ext.A1 Sale R.F.A. No.481 of 2009 -: 5 :- Deed refers to the existence of building in the property, it is the case of defendants that the building that existed was reconstructed and additional structures were also put up. It is not in dispute that three buildings are situated in the plaint 'B' schedule property having an extent of six cents. 11. According to the defendants, D5 Kumaran and his wife D6, had constructed or re-constructed the buildings in the property. Ext.B1 is the proceedings of the Municipal Commissioner, Ernakulam, dated 28.02.1955 granting permission to Kumaran(D5) to reconstruct house No.VIII/55 and also to construct a latrine. Ext.B2 is the notice dated 29.09.1955 from the Muncipal Office, Ernakulam to Vilasini(D6), the wife of Kumaran with regard to assessment of tax in respect of the building in the property. Ext.B3 is the petition dated 28.10.1955 submitted by the sixth defendant before the Ernakulam Municipal Commissioner with regard to the rate of tax. R.F.A. No.481 of 2009 -: 6 :- Ext.B4 is the order dated 30.01.1956 reducing the property tax. Exts.B5 to B12, B14, B17, B19 to B21, all evidence payment of tax by the sixth defendant. Ext.B13 notice dated 30.07.1971 issued by the Corporation also relates to the property tax. Ext.B22 to B46 are property tax receipts or related documents issued in favour of Kumaran in respect of a building situated in the property during the period 1955 to 1986. 12. Exts.B48, B49, B50 and B51 documents prove that buildings in the property were leased out by Kumaran atleast in the year 1964. Ext.B53 is the provisional invoice card issued in the name of the sixth defendant Vilasini regarding water connection to the building in the property. Exts.B54 to B59 copies of the property tax assessment list of the Cochin Corporation evidences that Kumaran and Vilasini are recorded as the owners of the buildings in the property. R.F.A. No.481 of 2009 -: 7 :- 13. From the documents as above, it is beyond doubt that, at least since the year 1955 Kumaran and his wife were in absolute possession and enjoyment of the property, constructing and reconstructing buildings, holding out before the Governmental and other authorities to be its absolute owners, leasing out the buildings in the property to strangers, and enjoying the property as its absolute owners asserting title in themselves. The enjoyment is open and without any attempt of concealment. 14. There is no case that the plaintiffs or their predecessors were unaware about the actions of Kumaran and Vilasini. On the other hand their case is that Kumaran was permitted to reside in the property. The evidence on record does not suggest a permissive occupation and enjoyment by Kumaran and Vilasini since the year 1955, but their possession had been one asserting absolute title and ownership in themselves. R.F.A. No.481 of 2009 -: 8 :- 15. The plaintiffs would rely on Exts.A3 to A14 documents which relate to a mortgage and redemption through court, in respect of the property, during the period 1950-1960. The mortgage was admittedly a simple mortgage. Since the title deeds stood in the name of Gangadharan it was possible for him to create mortgage in respect of the same. Being a simple mortgage, the possession of Kumaran(D5) and Vilasini(D6) was never disturbed, nor is there a case that the possession was ever attempted to be disturbed. There is no evidence to show payment of tax by the plaintiffs or their predecessor Gangadharan at any point of time. On the other hand, there is overwhelming evidence from the side of the contesting defendants to find their exclusive possession over the plaint schedule property and that they have been dealing with the property since 1955 as its absolute owners. All the documents produced by the contesting defendants evidence assertion of title in R.F.A. No.481 of 2009 -: 9 :- them. 16. The trial court has repelled the claim of adverse possession stating that there is no sufficient plea and evidence. It was also noticed that the parties being brothers Kumaran might have been permitted to occupy the property and construct building. However, when the documents ranging from the year 1955 are appreciated, they all evidence the assertion of title by Kumaran(D5), D6 and his successors. All those documents are in the names of Kumaran and Vilasini showing them as owners. The Municipal/Corporation authorities and also the public had acknowledged them as the owners of the property. The buildings were taken on lease from them. 17. The possession of the plaint 'B' schedule property by Kumaran and Vilasini were nothing short of, possession as absolute owners, with an intention to exclude the entire world including any rival claimants. As is evident from Ext.B series documents referred to R.F.A. No.481 of 2009 -: 10 :- above their possession was open, hostile, uninterrupted and continuous. In _**Kurungottukandi Rarichakkutty v. Aranda Rarichan and Ors. 2018 (4) KLT 944**_ , this Court held thus:- _“_ _**3.** The classical requirement of adverse possession is “nec vi, nec clam and nec precario” which means without violence, without stealth and without permission. Uninterrupted possession for the statutory period satisfying all the three ingredients stated above, amounts to adverse possession. To constitute adverse possession, the possession must be, as the terms implied, “adverse”, in derogation, of the rights of the true owner. Does it mean that the person in possession must be aware as to the identity of the true owner and should bring to his notice that the possession is in denial of his title. To call possession “adverse”, what is material is the animus. There has to be a hostile animus. The intention to exclude the whole world from challenging a person's possession necessarily implies possession with hostile animus, to exclude all others including the rightful owner. The same would be sufficient to constitute adverse possession. In view of the judgment by a three judge's bench of the Apex Court in Kshitish Chandra Bose v. Commissioner of Ranchi ((1981) 2 SCC 103 : AIR 1981 SC 707), we deem it unnecessary to refer to various other judgments on the issue. The three judge's bench held thus:_ R.F.A. No.481 of 2009 -: 11 :- _“All that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner.”_ The court was dealing with a reference on the questions as to whether to sustain a plea of adverse possession the identity of the real owner should be known to the person in possession, and whether alternate plea of title and adverse possession could be urged. This Court relied on the judgments of the Apex Court in _**Kshithish Chandra Bose v. Commissioner of Ranchi AIR 1981 SC 707**_ to hold that the identity of the true owner need not be known to the person in possession. So also, relying on the judgment of the Apex Court in _**L.N.Aswathamma and Ors. v. P. Prakash 2009 (13) SCC 229,**_ this Court held that alternate plea of title and adverse possession is permissible in a case where the defendant traces title under third party and resist the suit on the strength of the said title R.F.A. No.481 of 2009 -: 12 :- and as an alternative raises a plea of adverse possession against the plaintiffs. 18. The trial court has negatived the plea of adverse possession for the reason that the defendants did not acknowledge title of Gangadharan. As noticed above, such acknowledgment is not necessary. That apart in the case at hand it may not be correct to say that Kumaran, Vilasini and their successors did not acknowledge the title of Gangadharan since it is their case that though the property was to be purchased in the name of Kumaran, Gangadharan got it purchased in his name. It is inspite of being conscious of the same that they held the property asserting title in themselves against the whole world. 19. As regards the reason given by the trial court tracing the nature of possession to the relationship between the parties, the evidence on record, as noticed above, does not go in tune with the same. On the R.F.A. No.481 of 2009 -: 13 :- contrary, the defendants are fortified by a series of documents to show that they are in uninterrupted and exclusive possession of the property as absolute owners, dealing with the same in their own right. This is coupled with the lack of any document by the plaintiff evidencing payment of tax in respect of the property. Therefore, the materials on record leave no room for doubt that the defendants were hostile, uninterrupted possession of the property satisfying all the requirements to vest in them the right of adverse possession. 20. Though a plea of adverse possession is not readily accepted, in the case at hand the evidence on record, as is noticed, is so cogent and convincing. Hence it is held that the defendants have prescribed title over the property by adverse possession and limitation. The finding of the trial court to the contrary is liable to be set aside, and I do so. R.F.A. No.481 of 2009 -: 14 :- 21. The plea of adverse possession having been upheld, the suit is bound to fail. Resultantly, this appeal is allowed. The decree and judgment of the trial court are set aside. The suit will stand dismissed. No costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge