R.S.A No.18 of 2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** ## **MONDAY, THE 17TH DAY OF MAY 2021 /4[th] JAISHTA, 1942** ## **RSA NO 18 OF 2006** Against the judgment dated 24.11.2005 in A.S 243/2004 on the files of the Court of the Additional District Judge, North Paravur arising from the decree and judgment in O.S. 29/2003 of the Munsiff's Court, Perumbavoor. ## **APPELLANTS/RESPNDENTS 2 AND 3/PLAINTIFFS 2 AND 3 :** ## 1. SOSAMMA MATHEW THARAKAN ( DIED) WIFE OF VARGHESE MATHEW THARAKAN, MADAPPARAMBIL HOUSE, EZHIPRAM KARA, MAZHUVANNOOR VILLAGE. LRS IMPLEADED AS ADDL. R 6 TO R8 ## 2.BABY MATHEW THARAKAN AGED 42 YEARS SON OF VARGHESE MATHEW THARAKAN, -DO- -DO-. BY ADV.SRI.V.V.ASOKAN ADV.SRI.K.I.MAYANKUTTY MATHER ## **RESPONDENTS/APPELLANTS AND RESPONDENTS 1,4 &** ## **5/PLAINTIFFS 1,4 & 5** ## 1.GOVT. OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM,, CIVIL STATION, KAKKANAD. ## 2.TAHSILDAR KUNNATHUNAD TALUK OFFICE, PERUMBAVOOR. ## 3.LALITHA MATHEW THARAKAN, AGED 51 WIFE OF C.K.LOOKOSE, AMANGATT HOUSE,EZHIPRAM KARA,, PIRAVOM VILLAGE AND D/O.VARGHESE MATHEW THARAKAN, MADAPPARAMBIL HOUSE,EZHIPRAM KARA, MAZHUVANOOR, VILLAGE, NOW RESIDING AT 7C 15/127, ATTARA LANE, KAMMANMOOLA, THIRUVANANTHAPURAM DISTRICT. ## 4.SAJU PAUL AGED 48, SON OF PAUL MADAPARAMBIL HOUSE, KOLENCHERRY KARA, AIKARANADU, NORTH VILLAGE. **2** ## **R.S.A No.18 of 2006** ## 5.SUNIL PAUL AGED 45 SON OF PAUL MADAPPARAMBIL HOUSE, KOLLANKUDY P.O., KATHIPPARA, ADIMALI DEVIKULAM DISTRICT. (*Died) *6.ADL. R6 RAMANI MOHAN, W/O. DR P.I.MOHAN, SUPERINTENDENT, MUTHOOT HOSPITAL, PATHANAMTHITTA. ## *7.ADDL.R7 ALEENA PRINCE, W/O. K.V. PRINCE, KARIATHU HOUSE, PALAPARAMBU ROAD, PUNNACKAL, ELAMAKKARA P.O. ERNAKULAM ## *8.ADDL.R8 MEENA VARGHESE, W/O. VARGHES K.VARKEY, KUNNUMPURATH HOUSE, CHINGAVANAM P.O., PALLAM , KOTTAYAM NOW RESIDING AT ADEAP LTD. P.O. BOX 46121, ABUDABI, UAE ARE IMPLEADED AS LRS OF DECEASED 1ST APPELLANT (AS R6 TO R8 ) AS PER ORDER DATED 19.11.2010 IN IA 2320/2010 *9.ADDL.R9.SHINY SUNIL, W/O.LATE SUNIL PAUL, PUTHUSSERIL HOUSE, CHERAYI P.O., ERNAKULAM-683 514. ## *10.ADDL.AMMU SUNIL, D/O.LATE SUNIL PAUL, PUTHUSSERIL HOUSE, CHERAYI P.O., ERNAKULAM683 514. (THE LEGAL REPRESENTATIVES OF DECEASED R5 ARE IMPLEADED AS ADDL.R9 AND R10 AS PER ORDER DATED 13.01.2021 IN IA.1/2021.) ADV.M.L.SAJEEVAN, SPL.GOVT. PLEADER FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.3.2021, THE COURT ON 17.5.2021 DELIVERED THE FOLLOWING: **R.S.A No.18 of 2006** **3** ## **C.S DIAS,J.** **--------------------------R.S.A No.18 of 2006 ----------------------------Dated this the 17[th] May, 2021.** ## **JUDGMENT** The appellants are the plaintiffs 2 and 3 in O.S No.29 of 2003 of the Court of Munsiff, Perumbavoor (Trial Court) and the respondents 2 and 3 in A.S No.243 of 2004 of the Court of the Additional District, Judge, North Paravur (lower Appellate Court). The respondents 1 and 2 were the defendants in the suit and the appellants before the lower Appellate Court. The respondents 3 to 5 were plaintiffs 1, 4 and 5 in the suit. The additional respondents 6 to 8 are the legal representatives of the deceased 1[st] appellant and the additional respondents 9 and 10 are the legal representatives of the deceased 5[th] respondent in the second appeal. The parties are, for the sake of convenience, referred to as per their status in the plaint. ## **R.S.A No.18 of 2006** ## **4** 2. The suit was filed seeking a declaration that the plaintiffs have acquired title over plaint A, B and C schedule properties by prescription on account of adverse possession, and for a permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule properties. 3. The compendious background facts, relevant for the determination of the appeal, are: the plaint 'A, B and C' schedule properties having a total extent of 40.77 acres was forest land which belonged to the erstwhile Travancore State. The grandfather of plaintiffs 1 and 3, the father in law of the 2[nd] plaintiff and the maternal grandfather of plaintiffs 4 and 5 - Mani Varghese Tharakan – owned a property adjacent to the plaint schedule properties. The plaintiffs' predecessor enjoyed the plaint scheduled properties along with the adjacent property since 1915. The Government of Travancore published a notification in the Gazette dated 17.01.1925 converting the plaint **5** ## **R.S.A No.18 of 2006** schedule properties and other properties as revenue land. In 1116 and 1117 ME (1941 and 1942 AD), the Government of Travancore had initiated land conservancy cases against the plaintiffs' predecessor, which were dismissed by the Kottayam Division Peshkar. In 1118 ME, Mani Varghese Tharakan was granted a three year ‘Kuthakapattom’. Even after the tenure of the kuthakapattom, the plaintiffs' predecessor continued in possession of the plaint schedule properties, openly without any interruption from any person. He effected improvements and took yield from the properties. The Government did not initiate any action against Mani Varghese Tharakan, who did not remit any amount towards the kuthakapattom. From 1121 ME onwards, the plaintiffs' predecessor enjoyed the plaint schedule properties with the knowledge of the Government. The Rubber Board issued licence in favour of the plaintiffs' predecessor, to cultivate rubber, who bona fide believed that he was the real owner of ## **R.S.A No.18 of 2006** ## **6** the plaint schedule properties. He also remitted agricultural income tax and plantation tax. He partitioned his properties, including the plaint schedule properties, by partition deed Nos.194/1958. As per the said deed, the plaint schedule properties were allotted to his children Markose Tharakan, Varghese Mathew Tharakan and Annamma Varghese Tharakan. Mani Varghese Tharakan expired in 1964. His successors executed Will deed Nos.22/1976, 34/1978 and 12/1985 in favour of the plaintiffs. The plaintiffs got possession of the plaint schedule properties and enjoyed the same without any interruption. The Government booked Land Conservancy case Nos.2, 3 and 4, in the year 1969, against the plaintiffs' immediate predecessors Markose Tharakan, Varghese Mathew Tharakan and Annamma Varghese Tharakan. They filed objections in the above ― cases. The 2[nd] defendant Tahsildar – had filed a report dated 01.07.1974, stating that the plaintiffs' predecessors' were in adverse possession of the plaint **R.S.A No.18 of 2006** **7** schedule properties, therefore, they cannot be evicted from the properties. The 2[nd] defendant also submitted a report dated 01.07.1974 to the Government stating that the plaintiffs and their predecessors were in possession of the plaint schedule properties along with other properties since 1117 ME. The defendants have admitted in the reports that the plaintiffs have perfected title by adverse possession. The plaintiffs preferred a representation before the Revenue Minister of the Government on 26.02.2000, seeking permission to remit land tax in respect of the plaint schedule properties. The copies of the representation were submitted to the defendants. The plaintiffs issued a statutory notice as contemplated under Section 80(1) of the Code of Civil Procedure and then filed the suit. 4. The defendants contested the suit. They filed a joint written statement, inter alia, refuting the allegations in the plaint. It was their case that plaint schedule properties having an extent of 40 acres, 77 **8** ## **R.S.A No.18 of 2006** cents and 84 square links are comprised in old survey Nos. 213/1/1-1, 198/3-B, 198/5-B, 198/6 and 198/1 of the Kottappara Reserve Forest. The land was separately surveyed and handed over to the Revenue Department. The possession of the plaint schedule properties was handed over to Mani Tharakan on a Varghese 'kuthakapattom' arrangement with the Government, prior to the year 1950. Mani Varghese Tharakan enjoyed the plaint schedule properties with his own property lying adjacent to it. Mani Varghese Tharakan had effected improvements in the properties. The 'Kuthakapattam' was not renewed, but the arrangement was struck down by the Government. The plaint schedule properties are now in Re-survey Nos.76, 77 and 78 in block No.3, having an extent of 15.67.36 hectares. The plaint schedule properties are now being enjoyed by the 3[rd] generation of Mani Varghese Tharakan. The Government initiated LC case Nos.8/92 and 14/97, against the 3[rd] generation for trespassing ## **R.S.A No.18 of 2006** ## **9** and cutting down trees in the property, and have passed orders against them. The allegation that LC cases charged against Mani Varghese Tharakan, in the year 1116 ME, were dismissed was denied. The plaintiffs or their predecessors have no right to execute title deeds in respect of Government land. The further allegation that the LC cases charged against the plaintiffs in the year 1969 were dismissed on finding that the plaintiffs’ predecessors were in adverse possession of the properties was also denied. The Government charged LC No.8/92 against the plaintiffs 1 to 3 and Annamma Varghese Tharakan and ordered them to pay Rs.1,09,817/-. The Government also charged LC Case No.14/97 against the 3[rd] plaintiff and directed him to pay Rs.3,33,666/-. The cases were charged for cutting tress from the plaint schedule properties. The appeals preferred by the plaintiffs against the said orders are pending consideration before the Revenue Divisional Officer. The 2[nd] **10** ## **R.S.A No.18 of 2006** defendant had filed a report before the Secretary to Government on 12.11.1970, but it does not contain a statement that the plaintiffs cannot be evicted from the plaint schedule properties. The defendants cannot permit the plaintiffs to remit land tax in respect of the plaint schedule properties. The allegation that the Government has lost right over the properties by way of open, continuous and uninterrupted possession of the plaintiffs was denied. The assertion that the Rubber Board issued licence in favour of the plaintiffs’ predecessor in the years 1948 and 1958 was false. Similarly, the allegation that the plaintiffs’ predecessor had remitted plantation tax and agricultural income tax was incorrect. The plaintiffs are in illegal possession of the plaint schedule properties and are destroying the trees and taking yields from the properties, which is causing loss to the Government. The valuation of the plaint was wrong. The plaintiffs are not entitled for a decree as prayed for. Hence, the suit may be dismissed. ## **R.S.A No.18 of 2006** **11** 5. PWs 1 to 8 were examined on the side of plaintiffs and Exhibits A-1 to A-31 were marked through them in evidence. DW1 was examined on the side of the defendants and Exhibits B-1 and B-2 were marked on their side in evidence. Exhibits C-1 and C1(a) were marked as court exhibits. 6. The Trial Court decreed the suit on a finding that the plaintiffs have right over the plaint schedule properties through their predecessors and are,therefore, entitled to a decree as prayed for in the plaint. 7. Challenging the judgment and decree of the Trial Court, the defendants preferred A.S.No.243 of 2004 before the lower Appellate Court. The lower Appellate Court, by the impugned judgment and decree, set aside the judgment and decree of the Trial Court and dismissed the suit. 8. Aggrieved by the judgment and decree of the lower Appellate Court, the plaintiffs 2 and 3 are before **12** ## **R.S.A No.18 of 2006** this Court in second appeal. 9. Heard Shri. K.I. Mayankutty Mather, the learned counsel appearing for the appellants, Shri. M.L.Sajeevan, the learned Special Government Pleader appearing for respondents 1 and 2, Shri. K. Jaju Babu, the learned Senior Counsel appearing for respondents 3, 6 to 8 and Sri.P.Rahul, the learned counsel appearing for respondents 9 and 10. 10. Sri.K.I.Mayankutty Mather, the learned counsel appearing for the appellants argued that the lower Appellate Court has erroneously reversed the judgment and decree of the Trial Court. The lower Appellate Court has totally misconstrued and misappreciated the law, pleadings and materials on record and passed the impugned judgment in a unilateral manner. He contended that a reading of the impugned judgment, shows that the learned District Judge has given undue emphasis to Ext.A10 Partition Deed and Ext.A31 Will executed by the 5[th] plaintiff. It is only on **13** ## **R.S.A No.18 of 2006** the basis of the recitals in the said documents that the lower Appellate Court has non-suited the plaintiffs. According to him, the finding of the lower Appellate Court interpreting Ext.A10 Partition Deed is self contradictory because at one place the lower Appellate Court has held that the plaint schedule properties are not included in Ext.A10 Partition Deed, but at another place it has been held that Ext.A10 was on the basis of the 'Kuthakapattom' granted in favour of the plaintiffs predecessors. The learned District Judge has failed to appreciate the fact that Ext.A31 was only executed by the 5[th] plaintiff, which cannot have any bearing on the other plaintiffs. Similarly, the lower Appellate Court has wrongly assumed that the plaintiffs had submitted a representation to the Hon'ble Revenue Minister for assignment of the property, which also is erroneous. Ext.A15 was submitted only for the purpose of permitting the plaintiffs to remit basic land tax in respect of the plaint schedule properties as they had ## **R.S.A No.18 of 2006** ## **14** perfected title. He vehemently argued that notwithstanding the fact that the plaintiffs predecessors in interest may have been in possession of the plaint schedule properties from 1118ME – 1121ME on the basis of the kuthakapattom, un-disputedly since 1121ME i.e., since 1946 onwards, the plaintiffs and their predecessors are in hostile possession of the property. The sheet-anchor of the learned counsel was that in the year 1969, the defendants had initiated proceedings against the plaintiffs predecessors under the Kerala Land Conservancy Act, 1957 (in short 'the Act'). The defendants issued Ext.A11 to A13 notices on 28.1.1969, invoking Section 11 of the Act, seeking eviction of the plaintiffs predecessors from the plaint schedule properties. The said action of the defendants substantiates that the plaintiffs were in hostile and open possession of the plaint schedule properties. After the coming into force of the Act, with effect from 15.1.1958, by virtue of Section 5, it was not lawful for **15** ## **R.S.A No.18 of 2006** any person to occupy Government land, whether it is puramboke or not, without the permission of the Government. Hence, even assuming that the genesis of the possession of the plaintiffs predecessors was on the basis of a 'Kuthakapattom', the same ended in the year 1946. Therefore, after the coming into force of the Act, the plaintiffs are in unlawful possession of Government land. It is invoking the provisions of the Act, that the defendants issued Exts.A11 to A13 eviction notices. Nevertheless, no action was taken on the said notices and the Government slept over its rights. On the completion of 30 years after the issuance of Ext.A11 to A13 notices dated 28.1.1969, the plaintiffs have perfected title over the plaint schedule properties by prescription, on account of adverse possession, as provided under Section 27 read with Article 113 of the Limitation Act, 1968. Unfortunately, the lower Appellate Court without appreciating any of these aspects, which was rightly taken note by the Trial **16** ## **R.S.A No.18 of 2006** Court, has reversed the judgment and decree of the Trial Court. The learned counsel also argued that the lower Appellate Court has failed to take note of the admission made by the defendants in the written statement and the report dated 12.11.1970, which has clinched the case in favour of the plaintiffs. In view of the said admissions, the onus of proof was on the defendants to prove that the plaintiffs have not acquired title over the plaint schedule properties by prescription. The lower Appellate Court has failed to take note of the entries in Exts.B1 and B1(a) to (m) which clearly prove that the plaintiffs were in hostile possession of the plaint schedule properties. The learned counsel placed emphasis on the entries in pages 75 and 85 of Ext.B1 and pages 71, 73 and B-form notice in Ext.B2. He also placed reliance on the provisions of the Land Conservancy Act, 1091 (Act IV of 1091) and the Travancore-Cochin Land Conservancy Act (XIX of 1951). Similarly, he drew the attention of ## **R.S.A No.18 of 2006** ## **17** this Court to the recitals in Exts.A10 and A31 documents, which were misinterpreted by the lower Appellate Court to non-suit the plaintiffs. 10.1. The learned counsel also relied on the decision of the Hon'ble Supreme Court in **Ravinder Kaur Grewal v. Manjit Kaur and others** [2019 (4) KHC 256 SC] to fortify his contentions. He placed emphasis on paragraphs 8,9,10, 26, 30 and 50 of the said judgment. He also relied on the judgments in **Gurudwara Sahib v. Grama Panchayath Village Sirthala and another** [2014 (1) SCC 699] and **Madom and another v. Saranga Deva Periya Ramasamy Gondar** [AIR 1966 SC 1603]. He contended that once a party has perfected title by adverse possession, any subsequent admission or reentry by the previous owner is totally immaterial and in-consequential. He placed reliance on paragraph 24 of **Ravinder Kaur's** case to drive home his contentions. The learned counsel also argued that the **R.S.A No.18 of 2006** **18** defendants had never raised the issue of holding over before the Trial Court or the lower Appellate Court. It was for the first time that the said contention has been raised before this Court, which is unsustainable in law. He relied on the decision in **Meiazhagan A. v. Mangayarkkarasi and others** [2017 KHC 4640]. He also drew the attention of this Court to the 'Kuthakappattom Rules, 1947' and contended that it was competent for the Tahsildar or such other Authority under the Rules to cancel the lease without notice either on the expiry of the lease or when the lessee violated the conditions of the lease. He argued that the doctrine of holding over is used only under the Transfer of Property Act, but the same is not applicable to the Kuthakapattom Rules, as the later being a special enactment and there is no provision for holding over after the tenure of the lease. He, hence prayed that the impugned judgment of the lower Appellate Court be set aside and the Second Appeal be allowed **R.S.A No.18 of 2006** **19** by confirming the judgment of the Trial Court. 11. Sri.M.L.Sajeevan, the learned Special Government Pleader appearing for the respondents 1 and 2 argued that what has to be looked into in a case of adverse possession is whether the plaintiffs are in hostile possession of the property. He contended that as per Rule 8(2) of the Kuthakapattom Rules, 1947, even if proceedings are initiated under the Land Conservancy Act, it is to be construed that the tenant who was given the property on lease is holding over. Lease is granted by the Government as per Form-D of the 1935 Rules, which is analogous to Rule 8 of the 1947 Rules. He drew the attention of this Court to paragraph 2 of the plaint and contended that the claim put-forth by the plaintiffs is that their predecessor in interest had not paid rent after 1121 ME. Non-payment of rent cannot be treated as hostile possession. He placed reliance on Ext.A10 partition deed, wherein, the plaint schedule properties are not included in the **20** ## **R.S.A No.18 of 2006** schedule. He contended that if the plaintiffs predecessors were sure that they had perfected title by adverse possession, they would have certainly included the plaint schedule properties in Ext.A10. No person would execute a document for partial partition. He placed emphasis on Ext.A31 (Will) and argued that the plaint schedule properties were not included in the said document also. He also placed reliance on Ext.A15 representation submitted by the plaintiffs to the Hon'ble Minister, seeking for assignment of the property. According to him, in light of the admission in Ext.A15, it is clear that the plaintiffs were well aware that they had not perfected title by adverse possession. The learned Special Government Pleader also drew the attention of this Court to running page 29 of Ext.B2, the report of the Tahsildar, wherein it is stated that the property is in permissive possession. He also placed emphasis on page No.103 of Ext.B2 to demonstrate that the petitioners had represented the Minister seeking **R.S.A No.18 of 2006** **21** assignment of land. He relied on page No.11 of the cross-examination of PW1, wherein the witness had admitted that the property is revenue land, which proves that PW1 was not in hostile possession of the property. The learned Special Government Pleader contended that all the above facts and circumstances substantiate that the Government had asserted its right over the plaint schedule properties and there is no element of hostile possession. According to him, the land cases were booked the conservancy against plaintiffs, for cutting and removing trees, as discernible from page No.77 of Ext.B2. By the examination of DW1, the Government's right over the properties has been established. 11.1. The learned special Government Pleader relied on clauses 14 (a) & (b) of the Kuthakapattom Rules, 1935 and contended that, if the lessee does not surrender the leasehold property, then he will only be considered as a tenant holding over. He also drew the **22** ## **R.S.A No.18 of 2006** attention of this Court to Form No.C of the Regulations, which shows the ownership of the property would vest in the Government. 11.2. The learned Special Government Pleader placed reliance on the decision of the Hon'ble Supreme Court in **Thakkur Kishan Singh v. Arvind Kumar** [AIR 1995 SC 73] to buttress his contention that if a person was initially in permissive possession of land, then heavy burden lies on such person to establish that his possession became adverse. Mere possession for a long time does not convert permissive possession into adverse possession. He contended that Exts.A10 and A31 documents and Ext.A15 representation submitted by the plaintiffs to the Hon'ble Minister proves that the plaintiffs are still in permissive possession of the property. 11.3 The learned Special Government Pleader also relied on the decisions of the Hon'ble Supreme Court in v. **Mallikarjunaiah Nanjaiah & Others** ## **R.S.A No.18 of 2006** **23** [(2019) 15 SCC 756], **The State Bank of Travancore v. Arvindan Kunju Panicker** [AIR 1971 SC 996], **P.T.Munichikkanna Reddy and Ors v. Revamma & Ors** [(2007) 6 SCC 59] **, Mohan Lal (deceased) through his Lrs, Kachru & Ors v. Mirza Abdul Gaffar and Ors** [AIR 1996 SC 919], **Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan** [2008 (4) KLT 357 SC] and **Prem Nath Khanna and Ors v. Narinder Nath Kapoor and Ors** [(2016) 12 SCC 235] to fortify his contention that a person who claims adverse possession has to be in hostile possession of the property and animus possidenti is one of the main ingredients to be established in a case of adverse possession. Unless the person possessing the land has the requisite animus, the period for prescription does not commence. The person who claims adverse possession should prove the date he became the owner in possession of the property, the nature of his possession that the factum of possession was known to **R.S.A No.18 of 2006** **24** the opposite side that the length of possession and that the possession was open and undisturbed. According to him, in the present case, the plaintiffs have not proved any of the above ingredients. Therefore, the lower Appellate Court has rightly dismissed the suit. There is no error in the impugned judgment and decree. Ergo, the second appeal be dismissed. 12. The learned Senior Counsel appearing for the respondents 3 and 6 to 8 adopted the contentions of the learned counsel for the appellants. He argued that it is only because the said respondents were not in station, they were unable to join as appellants. Nonetheless, they sail with the appellants. The respondents are entitled for the very same reliefs as granted to the plaintiffs, in view of Order XLI, Rule 33 of the Code of Civil Procedure. He prayed that the appeal be allowed and the impugned judgment and decree be set aside. 13. The learned counsel appearing for the respondents 9 and 10 also adopted the contentions of **R.S.A No.18 of 2006** **25** the learned counsel for the appellants. 14. The counsel also filed their respective argument notes. 15. This Court admitted the appeal on the following question of law. **“Where factum of possession is admitted and the persons in possession have not conceded title to the paramount owner, at any point of time subsequent to 1121 for any transaction inter vivos, are not the actual factum of possession be taken as one in antagonism to true owner and therefore sufficient to assert hostile title and acquisition of the same by adverse possession and limitation?”** 16. After perusing the pleadings, materials on record and the judgments of the Courts below and hearing the respective learned Counsel for the parties, I deem it necessary to frame the following additional substantial question of law: **“(ii) whether there are cogent reasons warranting the invocation of the power of this Court under Order XLI Rule 23 A of the Code of Civil Procedure, to remand the appeal to the lower Appellate Court for fresh consideration?** ## **R.S.A No.18 of 2006** ## **26** 17. The Trial Court after analysing the pleadings and the oral and documentary evidence on record, especially Exts.A11 to A13 notices issued to the plaintiffs predecessors asking them to show cause why proceedings should not be initiated against them for trespass, came to the conclusion that there was inaction on the part of the defendants and, therefore, the plaintiffs have acquired title over the plaint schedule properties as they were in adverse possession of the properties for a period of thirty years commencing from the year 1969 onwards. The Trial Court, among other materials, also relied on Ext.A17 assessment order issued by the defendants and the oral testimony of the second defendant who was examined as DW-1. 18. Nevertheless, the lower Appellate Court allowed the appeal by setting aside the judgment and decree of the Trial Court predominantly on the findings; that the plaintiffs predecessor had obtained **27** ## **R.S.A No.18 of 2006** possession of the plaint schedule properties by a kuthakapattom lease in 1118 ME, therefore, the subsequent possession of the properties, even if the lease had expired and was not terminated, can only be treated as permissive; that permissive possession even for a long period will not acquire the character of adverse possession unless there is open assertion of hostile possession; that Ext.A10 partition deed does not mention about the plaint schedule property, even if it is mentioned it is inconsequential; that non-payment of kuthakapattom fee will not create adverse interest over the properties; that in Ext.A31 will deed executed by the fifth defendant, items 3, 4 and 5 of the plaint schedule properties are included in the schedule; that it is mentioned in Ext.A31 that the testator obtained the properties under a kuthakapattom; that in the application submitted to the Government for assignment there is no mention that plaintiffs have acquired title by adverse possession and that as the ## **R.S.A No.18 of 2006** ## **28** initial possession was permissive and the plaintiffs admitting their status in Ext.A31 as lessees, Exts.A11, 12 and 13 have no relevance. Therefore, Ext.A31 wipes out the case of the plaintiffs. 19. The lower Appellate Court discarded the other materials on record for the simple reason that as the genesis of the possession being permissive, no material can substitute it. Accordingly, it was held that the claim put forth by the plaintiffs was false and frivolous and consequently set aside the judgment and decree of the Trial Court and dismissed the suit. 20. On a careful scrutiny of Ext.A31, it is seen that that the lower Appellate Court failed to appreciate the fact that, even assuming that the recitals in Ext.A31 covered three items of the plaint schedule properties, ‒ Ext.A31 was executed only by Annamma Varghese the predecessor in interest of plaintiffs 4 and 5. Undisputedly, in Ext.A29 executed by Markose ‒ Tharakan the predecessor in interest of the first **29** ## **R.S.A No.18 of 2006** plaintiff – and in Ext.A-30 executed by Varghese ‒ Mathew Tharakan the predecessor in interest of the plaintiffs 2 and 3 – no such recitals as mentioned in Ext.A31 are there. The plaintiffs claimed independent and separate right over plaint ‘A, B and C’ schedule properties, on the basis of Exts.A29 to A31, respectively. Nonetheless, the plaintiffs were all nonsuited because of the recital in Ext.A-31 by Annamma Varghese. Whether the properties mentioned in Ext.A31 takes in the entire plaint schedule properties and whether it would be fatal to all the plaintiffs were never considered by the lower Appellate Court while arriving at the above conclusion, which according to me is erroneous, misinterpretation of the above deeds and total misappreciation of the facts and the law as laid down in Ravinder Kaur Grewal (supra) and a host of other binding judicial pronouncements. 21. A question of law regarding the applicability of the Kuthakapattom Rules to the facts of the case was ## **R.S.A No.18 of 2006** ## **30** attempted to be pressed into service by Shri.M.L.Sajeevan. He canvassed the position that once a property is handed over on kuthakapattom, then the doctrine of holding over comes into play, which estops the plaintiffs from claiming adverse possession. The said contention was combatted by Shri.Mayankutty Mather by contending that Mani Varghese Tharakan obtained the kuthakapattom in 1118 ME (1943 AD) at which time the present Rules were not in vogue. Therefore, only the Kuthakapattom Rules, 1935 were applicable. On a careful reading of Rule 14 (b) of the Kuthakapattom Rules, 1935, it is seen applicable to existing lease of trees without any limit of time and only on issuing notice to surrender the leasehold property and the lessee failing to surrender the property, he will be considered as a tenant holding over. 22. Remarkably, the above defence was never pleaded or argued before Courts below. It is for the **31** ## **R.S.A No.18 of 2006** first time that the above question of law was urged before this Court. On an analysis of the above Rule, prima facie it is found that the concept of holding over does not apply to leases for a definite period. 23. It was argued by Shri.M.L.Sajeevan that properties given on kuthakapattom are on the basis of a declaration in Form C in Rule 17 of the Kuthakapattom Rules, 1935. Ergo, by virtue of Section 114 (e) of the Evidence Act, 1872, it is to be presumed that the plaint schedule properties were also given on the basis of Form C. 24. Curious enough, no such plea was taken in the written statement, and no such Form was produced before the Courts below. Albeit the entire office file of the defendants pertaining to the plaint schedule properties being produced and the relevant portions being marked as Exts.B1 series and B2 through DW.1, the above said Form is not seen in the file. The onus of proof was on the defendants to have produced the so **32** ## **R.S.A No.18 of 2006** called Form to fortify their defence, but the same was not done. ## 25. On the contrary pages 75 and 85 of Ext.B1 reads as follows: “കുത്തകപപ്പാട്ട വവ്യവസ്ഥയയില്‍ സസ്വകപ്പാരവ്യവവ്യകയികക്ക് നല്‍കയിയയിരുന്നതത കുത്തകപപ്പാട്ടകപ്പാലപ്പാവധയി കഴയിഞയിടത ടയിയപ്പാള്‍ക്കു ഷഷേശത പയിന്തുടര്‍ച്ചകപ്പാരുത കകവശത വച്ചക്ക് ഷദേഹഹണ്ഡങ്ങള്‍ ചചെയക്ക് അനുഭവയിച്ചു വരുന്നതമപ്പാണക്ക്. ഷമല്‍ പറഞ പുറഷമപ്പാകക്ക് ഭൂമയിയയില്‍ നയിനത അനധയികൃതമപ്പായയി മരത ചവട്ടയിയതയിചനതയിചര". “അപപ്പീല്‍ അപപ്പീക്ഷയയിഷന്മേല്‍ ഉള്ള കുന്നത്തുനപ്പാടക്ക് തഹസയില്‍ദേപ്പാരുചട സൂചെന രണക്ക് പ്രകപ്പാരത ഉള്ള റയിഷപപ്പാര്‍ട്ടക്ക് ലഭവ്യമപ്പാകയിയതയില്‍ ചകപ്പാമനപ്പാടക്ക് വയിഷല്ലേജക്ക് ഷബപ്പാകക്ക് നമര്‍ 3 സര്‍ഷവ്വേ നമര്‍ 76/73/3,4 ചപട്ട 15.6761 ചഹക്ടര്‍ പുരഷമപ്പാകക്ക്ഭൂമയി K.P 71/117, 72/118 നമര്‍ ഫയലുകള്‍ പ്രകപ്പാരത അപപ്പീല്‍ കക്ഷയികളുചട പൂര്‍വയികര്‍ക്കു പപ്പാട്ടത്തയിനു ചകപ്പാടുത്തയിരുന്നതത പപ്പാട്ടകപ്പാലപ്പാവധയി കഴയിഞയിടത സര്‍കപ്പാരയിനു തയിരയിചക ചകപ്പാടുകപ്പാചത അപപ്പീല്‍ കക്ഷയികളുചടഅനധയികൃത കകവശത്തയിലയിരയിക്കുന്നതപ്പാചണനത.” ## 26. Even more glaring is the letter dated 12.11.1970, which has been marked as Ext.B1(g) in evidence through DW.1. It is apposite to extract the said letter, which reads thus: **R.S.A No.18 of 2006** **33** B2.5339/69 Taluk Office, Kunnathunad, Perumbavoor, Dt.12.11.1970. From To P.V.Sukumara Pillai, The Secretary to Government Tahsildar, Kunnathunad. Land Reforms (L) Dept., Govt.Secretariate, Trivandrum. Sir, Sub: Land – Assignment of land – Ernakulam District – Kunnathunad Taluk Vengoor East Village – Sy.213 and 198 – request from one Sri.Varghese Markose Tharakan and two others – report submitted. Ref: Govt. No.28520/L3/70/LRD dt. 29.7.'70. Kind attention is invited to the Reference cited in which I am directed to submit report on the assignment applications of (1) Sri.Varghese Markose Tharakan (2) Varghese Mathew Tharakan (3) and Smt.Annamma Varghese Tharakan of Madaparambil House,Mazhuvannur village of this Taluk. After verifying the records available and after the inspection of the land concerned I may report as follows:- The land applied for Assignment by the applicants is comprised in Sy. Nos.198 and 213 of Vengoor East Village of this Taluk. Vengoor East Village of this Taluk is a hilly tract.Sy.No.198 and 213 of this village are included in the list of assignable lands. Lands comprised in the above Sy Nos. are lying very near to the Vengoor Reserve Forest having been got transferred to the Revenue Dept. after disrespervation before 30 years. One Sri.Mani Varghese Tharakan Madapparambil, Mazhuvannur village and another person Sri.Mathai Poulose of Kallarackal were in unauthorised occupation of about 25 acres of lands comprised in Sy.No.213/1-4-5 of Vengoor East village. It is seen from the K.P. register maintained in this office that the above 25 acres of land were leased out for a period of three years as per K.P case Nos.72/117 (33.05 acres) and 78/118 (1.97 acres). Though the lease involved in K.P case No.72/117 expired in the year 1120 and that of 78/118 in the year 1121 the party continued possession of the land unauthorisedly. The records now available do not show why action for renewing the lease was not pursued or why the party's unauthorised occupation was not removed. The above lands were lying adjacent to the Reserve forest and continuous to the patta land of the encroacher Sri.Mani Varghese Tharakan comprised in Sy.Nos.198/2 (5.15 acres) 198/3A (29 cents), 198/4 (3.04 acres) **34** ## **R.S.A No.18 of 2006** and 198/5A (90 cents) of Vengoor East village. The unauthorised occupation by the party's continued unnoticed till recently when the Tahsildar inspected the adjacent land for the purpose of assessing levy (Thonkai Cultivation) for the paddy cultivation in the patch of land available in the Reserve Forest. The inspection was conducted on 10.10.'68. At the time of inspection the unauthorised occupation of this vast area of land was detected and the firka Inspector concerned was directed to take case against the unauthorised possession of Govt. land, under the provision of the L.C.Act. Case under the L.C Act were booked and records were submitted by the Revenue Inspector for the unauthorised possession against the following persons. |Name of encroacher|Name of encroacher|Name of encroacher||Extent.|Sy.No.|Total| |---|---|---|---|---|---|---| |1.|Varghese|Markose|Tharakan|||| ||Madaparambil Mazhuvannur village|||14-5|213/1|14-05| |2.|Varghese Mathoo Tharakan|||13-60|213/1-4|| |||-do-|-do|0-84|198/3B|14-44| |3.|Varghese Annamma|||1-81|198/1 )|| ||-do-|-do-||1-92|5/B )|| |||||3-86|6 )|| |||||0-13|213/1 )|| |||||1-39|2 )|| |||||2-75|3 )|| |||||0-42|6 )|12-28| The above three cases were registered as L.C 2/69, LC 3/69 and L.C 4/69 respectively. The three encroachers are the present applicants. In addition to the L.C cases the Revenue Inspector has submitted a report from which the following details are revealed. The present encroachers are the heir apparents (Progenys) of Sri.Mani Varghese the former encroacher who had unauthorisedly possessed the 25 acres from Sy.No.213, that Sri.Mani Varghese expired in the year of 1959, that the landed properties held by Sri.Mani Varghese (including registered and unregistered lands) were bequeathed to the encroachers as per partition deed No.194/59 and that the right of Sri.Kallarakkal Mathai Poulose over the land held by him was transferred early in 1957 to the 3[rd] encroacher as per teer deed No.2211 of 1957. Further it is stated in the report that the entire area of the 40 acres of poramboke land and the 10 acres of patta land lying contiguous to the poramboke land has been fenced with strong kayyala and brought under cultivation of rubber in a large portion and Arecanut and Coconut in a small portion after spending huge amounts of money for levelling and reclamation . A small portion of the land is paddy field. The report adds that the rubber, the main cultivation of the area is at the yielding stage and that they have registered the rubber plantation with **35** ## **R.S.A No.18 of 2006** the Rubber Board. The above details were found true by the Tahsildar who inspected the lands on 24.1.'68. I have conducted further enquiries in the matter and have gathered the following details as to the registered land held by the encroachers in the Mazhuvannur and Vengoor village of this Taluk. |Name||Mazhuvannur|Vengoor|East.|Total| |---|---|---|---|---|---| |||Wet<br>Dry|Wet<br>|Dry|| |||A.C<br>A.C|A.C<br>|A.C|A.C| |1.|Varghese Markose||||| ||Tharakan<br>|2-9-500 4-93-340|0-84-000|2<br>|9-38-341| |2.|Varghese Mathoo||||| ||Tharakan|1-79-500 6-29-500|0-82-000|1|| |3.|Varghese Annamma|Nil<br>Nil|1-25-000|3-44|| The three persons hold registered lands in excess of the limit prescribed in the KLA rules making them ineligible to get any Govt. land assigned in their favour. The extent of Govt. Land held by late Sri.Mani Varghese the father of the present encroachers was 25 acres whereas the extent of land for which cases against the present encroachers are booked is 40 acres 77 cents resulting in a further increase of 15.77 acres. In response to the B form notice served on the encroachers they have filed written statements specifying the following points. - 1) The entire property is in the possession and enjoyment of their family for the last 30 years or more. - 2) They have levelled the land spending huge amounts of money and labour and planted the area with valuable improvements such as Rubber, Arecanut and Coconut etc. - 3) And therefore the land may be assigned to them. The entire position of the case was reported to the District Collector in this office B2.5339/69 dt. 16.6.'69 soliciting instructions. The Collector in L.Dis. 30036/69/B4 dt. 3.9.'69 has instructed me to dispose of the L.C cases according to merits and within the provision of the L.C.Rules. The L.C cases were being pushed to the final stage when the present application of the petitioners was received. Therefore, the disposal of the cases is kept in abeyance. The petitioners have raised valuable improvements on the land after spending huge sums and it will not be possible to evict the enroachment if a decision in the L.C cases are taken accordingly. **R.S.A No.18 of 2006** **36** The land if assigned to the applicant will infringe the ceiling area prescribed in the KLA Rules 1969 and the ceiling limit prescribed in the K.L.R (Amendment Act) 1969. The matter may be decided by Govt. under the provision of Rules 24 of KLA Rules, 1967. I also request orders whether the L.C cases can be decided in the meanwhile. The enclosures sent with reference cited are re-submitted in original along with a sketch showing the various occupation of the applicant in Vengoor East Village. Yours faithfully, /True copy/ for Tahsildar 27. It was on the basis of inspection conducted by the Tahsildar on 10.10.1968, as reflected in Ext.B1 (g), that the defendants registered L.C Nos.2/69, 3/69 and 4/69 (Exts.A-11 to A-13) against the defendants. Nonetheless, the Tahsildar reported that it will not be possible to evict the ‘encroachers’. The very same view was again reiterated by the Tahsildar in his letter dated 01.07.1974 marked as Ext.B1 (a) to B1 (f). 28. What action was taken by the defendants on Exts.A-11 to A-13 is not discernible from their office file or the oral testimony of DW1. According to me, the **37** ## **R.S.A No.18 of 2006** observation of the Tahsildar in the above two communication tantamounts to an admission and has clinched the issue in favour of the plaintiffs regarding their unauthorised occupation of the plaint schedule properties. However, this pivotal aspect was omitted to be considered by the lower Appellate Court. 29. It was also contended by Shri.Mayankutty Mather that at the time the kuttakapattom had expired, even though the Travancore Land Conservancy Act of 1091 and the Cochin Land Conservancy Act, 1096 were in force, the relevant enactment governing the field in respect of the plaint schedule properties was the Land Conservancy Act of 1091 (Act IV of 1091). Section 6 of the said Act contemplated payment of fine for unauthorised occupation of government land and Section 7 provided for summary eviction. Thus, the contention of holding over does not hold good. After the formation of State of Kerala, the Land Conservancy Act, 1957 was enacted. Invoking the said Act, Exts.A-11 to ## **R.S.A No.18 of 2006** **38** A-13 were issued to the plaintiffs, on being convinced that the plaintiffs were in hostile possession of government land. Hence it can be garnered that the plaintiffs have proved that they have perfected title over the plaint schedule properties, atleast from 1969 onwards, by prescription on account of adverse possession as provided under Section 27 read with Article 113 of the Limitation Act. Hence the second appeal may be allowed by setting aside the impugned judgment and decree and the judgment and decree of the Trial Court be confirmed. 30. It is to be pertinent to note that the application and implication of the above referred enactments was not considered by the Courts below in its proper perspective. The lower Appellate Court only considered the application of Section 5 of the Land Conservancy Act, 1957, without reference to the other enactments. Likewise, undue emphasis was given to Ext.A15 representation submitted to the Honourable Minister. **39** ## **R.S.A No.18 of 2006** Whether the representation was for assignment of the plaint schedule properties or to remit land tax and whether the submission of Ext.A15 would amount to waiver of the plaintiffs right to seek for declaration of title by prescription was not considered by the lower Appellate Court. 31. On a comprehensive consideration of the rival contentions, the pleadings and materials on record, the law laid down by the Honourable Supreme Court in the afore cited precedents and my findings rendered above, I am of the firm opinion that there are cogent reasons and grounds warranting the invocation of the power of this Court under Order XLI Rule 23 A of the Code of Civil Procedure, to remand the appeal to the lower Appellate Court for fresh consideration, especially for the reason that the lower Appellate Court has not adverted to pertinent issues that are germane for the determination of the appeal, and also since both sides have raised questions that were never addressed ## **R.S.A No.18 of 2006** ## **40** before the lower Appellate Court. Therefore, to subserve justice and to afford both sides a further opportunity to substantiate their respective contentions, I hold that the impugned judgment and decree is liable to be set aside. Therefore, I allow the second appeal by remanding A.S.No.243 of 2004 to the lower Appellate Court for fresh consideration. Accordingly, substantial question of law No.(ii) is answered in favour of the appellants. As substantial question of law No.(i) is inextricably intertwined with the fundamental issues in the appeal, which is to be decided by the lower Appellate Court, the said question is left open. In the result, the second appeal is allowed by setting aside the judgment and decree in A.S.No.243 of 2004 of the Court of Additional District Judge, North Paravur. A.S.No.243 of 2004 is remitted back to the lower Appellate Court for fresh consideration, in accordance with law and untrammelled by any **R.S.A No.18 of 2006** **41** observation in this judgment, after adverting to all the above raised contentions. The parties are at liberty to raise all their contentions within the framework of the suit. The parties are directed to appear before the lower Appellate Court on 14.06.2021 either in person or through their Counsel. As the appeal is of the year 2004, every endeavour shall be made by the lower Appellate Court to consider and dispose the appeal as expeditiously as possible at any rate on or before 23.12.2021. The Registry is forthwith directed to transmit the lower court records to the Court of Additional District Judge, North Paravur. It is also made clear that the interim order of injunction dated 09.01.2006 passed by this Court in this appeal shall continue to remain in force till the disposal of A.S.No.243 of 2004. The parties shall bear their respective costs. **Sd/-C.S.DIAS, JUDGE** ma/21.04.2021 /True copy/