R.S.A. No. 490 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 23RD DAY OF MAY 2012/2ND JYAISHTA 1934** ## **RSA.NO. 490 OF 2012 ()** **-----------------------------------AS.579/2010 OF DISTRICT COURT, THIRUVANANTHAPURAM OS.40/2006 SUB COURT,ATTINGAL** ## **APPELLANT(S)/APPELLANTS/DEFENDANTSD 3, 4 & LR OF 1[ST] DEFENDANT:** **-------------------------------------------------------------------------------------------------------------** ## **1. BABY HAZEENA** **D/O.RAZEEYA BEEGAM, AGED 35 YEARS RESIDING AT EP 16/256, THUNDUVILAKOM, EDAVA P.O. EDEVA DESOM, EDAVA VILLAGE, THIRUVANANTHAPURAM.** ## **2. MASTER AZEEZ** **S/O.HAJI MOHAMMED KASIM, AGED 68 YEARS RESIDING AT EP 16/256, THUNDUVILAKOM, EDAVA P.O. EDEVA DESOM, EDAVA VILLAGE, THIRUVANANTHAPURAM.** ## **3. ANIL RAZ** **AGED 38 YEARS, S/O.MASTER AZEES RESIDING AT EP 16/256, THUNDUVILAKOM, EDAVA P.O. EDEVA DESOM, EDAVA VILLAGE THIRUVANANTHAPURAM REPRESENTED BY HIS POWER OF ATTORNEY HOLDER-ABDUL AZIZ @ MASTER AZIZ S/O.HAJI MOHAMMED KASIM, AGED 68 YEARS RESIDING AT EP 16/256, THUNDUVILAKOM, EDAVA P.O. EDEVA DESOM, EDAVA VILLAGE, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.D.KISHORE** **RESPONDENT(S)/RESPONDENTS/PLAINTIFF & 5[TH] DEFENDANT: -------------------------------------------------------------------------------------------** ## **1. NADEERA** **D/O.NABEESA BEEVI, AGED 61 YEARS, DILSHAD EDAVA DESOM, EDAVA VILLAGE, THIRUVANANTHAPURAM.** ## **R.S.A. No.490 of 2012** ## **2. SAINUDEEN** **S/O.MOHAMMED, AGED 64 YEARS, PANICHAKKUZHIYIL PARAYIL, EDAVA DESOM, EDAVA VILLAGE THIRUVANANTHAPURAM.** **BY ADV. SRI.R.S.KALKURA(CAVEATOR)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.490 of 2012 ==================================== Dated this the 23[rd] day of May, 2012** ## **J U D G M E N T** This Second Appeal arises from the judgment and decree of the learned Sub Judge, Attingal in O.S. No.40 of 2006 confirmed by the learned District Judge, Thiruvananthapuram in A.S. No.579 of 2010. First respondent filed the suit against the second respondent-5[th] defendant, appellants 1 and 2-defendants 3 and 4 and the deceased first defendant (third appellant is the legal representative of deceased first defendant) for declaration of her title over the suit property, eviction and for prohibitory injunction. First respondent contended that suit property and building therein belonged to Fazeela Beegum, daughter of Rahuma Beevi and her maternal aunt, Azeema Beevi as per Exts.A5 and A7 and that first respondent purchased the suit property and building from the said Fazeela Beegum as per Ext.A1, assignment deed No.3649 of 2005 on 03.09.2005. It is the further case of first respondent that the deceased first defendant and her daughter (first appellant) were residing in the building in the suit property and they shifted residence on the request of the then owner of the property on 01.09.2005 (followed by Ext.A1, assignment deed No.3649 of 2005 **R.S.A. No.490 of 2012** ## -: 2 :- dated 03.09.2005 in favour of the first respondent). Pursuant to Ext.A1, first respondent took possession of the suit property and building. While so, deceased first defendant and others after filing a caveat in the Munsiff's court, Varkala trespassed into the building on 31.12.2005 and started residing there. Hence the suit. 2. Appellants 1 and 2 and the deceased first defendant contended that the suit property belonged to Rahuma Beevi (mother of Faseela Beegum who executed Ext.A1) and that appellants 1 and 2 and deceased first defendant are in possession of the property and building since the last 50 years. Faseela Beegum (who executed Ext.A1) went to Singapore 38 years back and acquired the citizenship of that country. They also contended that documents relied on by the first respondent are sham. A further contention is that Rahuma Bbeevi or her maternal uncle has not executed any document and at any rate with free consent. A plea of adverse possession also is raised. 3. Trial court found title of the suit property in favour of first respondent, negatived the plea of adverse possession and granted a decree. That was confirmed by the first appellate court and hence this Second Appeal. ## **R.S.A. No.490 of 2012** -: 3 :- 4. Learned counsel for appellants contended that substantial questions of law are involved in this appeal for a decision by this Court. According to the learned counsel in so far as first respondent never got possession of the suit property, the suit ought to come under Article 64 of the Limitation Act (for short, “the Act”) and hence it was the responsibility of first respondent to prove that the suit is brought within 12 years of possession of the appellants and first defendant in the suit property. Learned counsel has placed reliance on the decisions in **Ramiah v. N.Narayana Reddy** ([2004] 7 SCC 541 - paragraph 9) and **Chatti Konati Rao & Others v. Palle Venkata Subba Rao** (2010 KHC 4967) in support of the said contention. It is further contended that whether first respondent had a cause of action to seek eviction of appellants and others though denied by the appellants is not decided or referred to by the trial court. 5. Learned counsel for first respondent who filed a caveat has contended that title of first respondent is proved by oral and documentary evidence and that none of the contentions advanced by the appellants in this appeal would stand and much less any substantial question of law is involved. Further ## **R.S.A. No.490 of 2012** ## -: 4 :- contention is that the plea of adverse possession cannot stand in the light of evidence given by D.W.1 (first defendant). In response, learned counsel for appellants contended that first defendant was not hail and healthy to give rational answers to the questions put to her and that evidence of D.W.2 has to be looked into. 6. So far as title claimed by first respondent is concerned, though appellants contended that the suit property and building belonged to Rahuma Beevi and her maternal aunt, no evidence in that line is produced. On the other hand, Exts.A5 to A7 show that suit property and building thereon belonged to Faseela Begum who executed Ext.A1, assignment deed in favour of the first respondent on 03.09.2005. First respondent has also produced Exts.A3 and A8 to show payment of revenue for the suit property and the building. Exhibit A9 is the ownership certificate concerning consumer No.598/EDA. Exhibit A10 is a certificate of possession issued in favour of the first respondent. 7. Now the argument advanced is that in the light of Exts.B1 to B13 produced by the appellants it is to be found that first respondent never got possession of the suit property and building and that the contention that appellants and deceased ## **R.S.A. No.490 of 2012** ## -: 5 :- first defendant vacated the building on a request on 01.09.2005 and re-entered by way of trespass on 31.12.2005 is not correct. According to the learned counsel, in so far as first respondent never got possession of the suit property and building (assuming that she has title) the suit has to come under Article 64 of the Act and hence it was the responsibility of the first respondent or her predecessor in interest to bring the suit within 12 years from the possession of the appellants and deceased first defendant and that having not been done the suit has to fail. It is in this connection that learned counsel has placed reliance on the decisions cited supra. 8. Article 64 of the Act deals with limitation for suit for possession of immovable property based on previous possession and not on title when the plaintiff while in possession of the property has been dispossessed. The period of limitation is 12 years from the date of dispossession. Article 65 of the Act deals with suits for possession of immovable property or any interest therein based on title and the period of limitation is 12 years from the date on which possession of defendant becomes adverse to the plaintiff. In **Ramiah v. N. Narayana Reddy** (supra) in paragraph 9 it is stated that suits based on plaintiff's title in ## **R.S.A. No.490 of 2012** ## -: 6 :- which there is no allegation of prior possession and subsequent dispossession alone can fall within Article 65 and that the question whether the article of limitation applicable to a particular suit is Article 64 or 65 has to be decided by reference to the pleadings. It is further held that Article 64 of the Act is restricted to suits for possession on dispossession or discontinuance of possession and that in order to bring a suit within the purview of that article, it must be shown that the suit is in terms and as well as in substance based on the allegation of plaintiff having been in possession and having subsequently lost possession either by dispossession or discontinuance. **Chatti Konati Rao & Others v. Palle Venkata Subba Rao** (paragraph 14) (supra) refers to a plea of adverse possession and states that possession to be adverse must be against the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and adverse to the true owner and to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. 9. It is not very much disputed by the first respondent that for whatever length of time it be, deceased first defendant ## **R.S.A. No.490 of 2012** ## -: 7 :- and others were staying in the building in the suit property prior to 01.09.2005. According to the first respondent on that day on the request of the then owner of property, they vacated. That was followed by the then owner, Faseela Beegum executing Ext.A1 in favour of the first respondent and putting the latter in possession. According to the first respondent, while so, deceased first defendant and others trespassed into the building on 31.12.2005. It is so pleaded in the plaint and spoken to by the first respondent in her evidence. It is relevant to note that in Ext.A1 there is a clear recital that possession of the suit property including the building is given to the first respondent and that the key of the building is entrusted to the first respondent. Handing over the key of the building indicates that first respondent was put in possession and control of the building. There is no reason to think that a false recital was made in Ext.A1 in favour of the first respondent. I do not forget that appellants have a contention that the documents relied on by the first respondent are sham but that is not established by evidence and on the other hand, Exts.A2 and A3 and A8 to A10 would disprove that case of appellants. Thus the recital in Ext.A1 that the suit property and building were put in the possession of first respondent on the ## **R.S.A. No.490 of 2012** ## -: 8 :- date of that assignment deed (03.09.2005) is eloquent indication that on that day, appellants and others had no possession of the suit property or building. If that be so, possession of the appellants and others in the building in the suit property from 31.12.2005 can only be by way of trespass. Hence adverse possession of appellants and others in the building can commence only from 31.12.2005. The suit is filed in the year, 2006. Therefore it is only of academic interest whether Article 64 or 65 which would apply to the facts of the case and does not mater much so far as the decision in the case is concerned. 10. Having regard to Ext.A1 and the recitals therein I found that appellants and others had no possession of the suit property or building on 03.09.2005. If that be so, the plea of title by adverse possession is not available to the appellants since suit was filed in the year, 2006. I must also notice the evidence of deceased first defendant as D.W.1 has given. In crossexamination she stated that she was residing in the building in the suit property though she was aware that she had no right over the said property and building. Her only grievance was that she has no other place to go (which is not a defence in a suit for eviction). It is relevant to note that D.W.1 even denied that she ## **R.S.A. No.490 of 2012** ## -: 9 :- gave instruction to her counsel to prepare the written statement. She claimed that she has no knowledge of the contentions raised in the written statement. Of course the effect of evidence given by D.W1 is sought to be remedied by D.W.2 who claimed that on account of ill-health first defendant was not able to give proper evidence and give rational answers to the questions put to her. If that be so, appellants should not have taken the risk of putting the first defendant in the box. Having put her in the box and elicited necessary facts in chief examination, appellants cannot contend that so far as the answers given by the deceased first defendant in cross-examination is concerned, that must be attributed to ill-health and (alleged) inability to give rational answers. D.W.1, the first defendant has given evidence on behalf of the appellants and other contesting defendants. Even if it is assumed that deceased first respondent and others were in possession of the building without any break, that is not shown to be adverse. Mere length of possession is not sufficient. 11. The last argument concerned failure of the courts below to discuss the cause of action pleaded by the first respondent. According to the first respondent, the trespass into the building on 31.12.2005 gave cause of action for her to seek ## **R.S.A. No.490 of 2012** ## -: 10 :- eviction of appellants. Cause of action is the bundle of materials which give the plaintiff a right of action. Title of the first respondent in the suit property and building gave her right of action and trespass made by the deceased first defendant and others into the building on 31.12.2005 gave cause of action for the first respondent to seek eviction. For the mere fact that such cause of action is not specifically adverted to by the courts below, I am not inclined to think, that should persuade this Court to entertain this appeal which otherwise lacks merit even on the face of evidence given by first defendant as D.W.1 which I have sated above. 12. Having heard learned counsel and gone through the judgments under challenge I am not satisfied that any substantial question of law is involved in this appeal requiring decision by this Court. Second Appeal is dismissed. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv