SA Nos. 8, 79 & 84 of 1995: Bhanumathy (deceased) v. Bhargavi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** ## **SA.No. 8 of 1995** **AGAINST THE DECREE AND JUDGMENT DATED 26-03-1994 IN AS 10/1993 of III ADDITIONAL SUB COURT, ERNAKULAM** **AGAINST THE DECREE AND JUDGMENT DATED 03-10-1992 IN OS 1758/1989 of II ADDITIONAL MUNSIFF COURT, ERNAKULAM** ## **APPELLANT/APPELLANT/DEFENDANT:** **1 * BHANUMATHY,(DIED) W/O.RAMADASAN,EROOR DESOM W/O RAMADASAN , RESIDING AT SUDARSANA BLAYIL ROAD, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK (LEGAL HEIR IMPLEADED) ADDL.A2 SMITHA, DAUGHTER OF LATE BHANUMATHI AND WIFE OF BIJU K.Y., AGED 27, RESIDING AT SUDARSANA, BLAYIL ROAD, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM** *** ADDITIONAL 2ND APPELLANT IS IMPLEADED AS THE LEGAL HEIR OF DECEASED SOLE APPELLANT AS PER ORDER DATED 17.5.05 IN I.A. 733/05. BY ADV. SRI.K.C.CHARLES SRI.A.BALAGOPALAN** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **1 ** BHARGAVI,(DIED)** **D/O.KOCHUKUTTAN,VETTIKKATTU PARAMBIL HOUSE, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK (LRS IMPLEADED AS ADDL R2 AND R3)** **ADDL.R2 *** BALACHANDRAN, S/O LATE PARAMU,(DIED) RESIDING AT VETTIKATTU PARAMBU EROOR DESOM, NADAMA VILLAGE, EROOR P.O.** **ADDL.R3 ## AMMINI, D/O LATE PARAMU, (LEGAL HEIRS IMPLEADED) RESIDING AT VETTIKATTU PARAMBU, EROOR DESOM, NADAMA VILLAGE, EROOR PO.O.(NAME CORRECTED)** **** LEGAL HEIRS OF DECEASED SOLE RESPONDENT IMPLEADED AS ADDL. RESPONDENTS 2 AND 3 AS PER THE ORDER DATED 28.1.2013 IN I.A.144/2011** **ADDL.R4 USHA, WIFE OF LATE BALACHANDRAN, AGED ABOUT 51 YEARS, RESIDING AT MADATHICHIRA HOUSE, EROOR P.O., PIN-682306, NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** SA.Nos.8, 79 & 84 of 1995 2 **ADDL.R5 AKSHAY KUMAR, SON OF LATE BALACHANDRAN, AGED ABOUT 20 YEARS, RESIDING AT MADATHICHIRA HOUSE, EROOR P.O., PIN-682306, NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. ADDL.R6 AKASH, LATE BALACHANDRAN, AGED ABOUT 17 YEARS, RESIDING AT MADATHICHIRA HOUSE, EROOR P.O., PIN682306, NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. ADDL.R7 ASHIK, LATE BALACHANDRAN, AGED ABOUT 17 YEARS, RESIDING AT MADATHICHIRA HOUSE, EROOR P.O., PIN682306, NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** *****LEGAL HEIRS OF DECEASED SECOND RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 4 TO 7 AS PER ORDER DATED 9/01/2019 IN I.A.2115/2018.** **## THE NAME OF THE ADDITIONAL RESPONDENT NO.3 IS CORRECTED AS AMBUJAKSHI INSTEAD OF AMMINI AS PER ORDER DATED 15.1.2020 IN I.A.NO.1/2019.** **ADDL.R2,R3 SRI.K.V.JAYACHANDRAN ADDL.R2,R3 SRI.RAJU V MATHEW ADDL.R2 REMA R MOHAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH SA.79/1995, SA.84/1995, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SA.Nos.8, 79 & 84 of 1995 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** ## **SA.No. 79 of 1995** ## **AGAINST THE DECREE AND JUDGMENT DATED 26-03-1994 IN AS 9/1993 of THE III ADDITIONAL SUB COURT, ERNAKULAM** **AGAINST THE DECREE AND JUDGMENT DATED 03-10-1992 IN OS 1611/1989 of THE II ADDITIONAL MUNSIFF COURT, ERNAKULAM** ## **APPELLANT/APPELLANT/PLAINTIFF:** **1 * BHANUMATHI, (DIED) WIFE OF RAMADAS, RESIDING AT 'SUDARSANA', BLAYIL ROAD, EROOR DESOM, NADAMA VILLAGE KANAYANNUR TALUK. (LEGAL HEIR IMPLEADED) ADDL.A2 SMITHA, DAUGHTER OF LATE BHANUMATHI AND W/O.BIJU K.Y., AGED 27, RESIDING AT SUDARSANA, BLAYIL ROAD, EROOR DESOM, NADAMA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM.** ***ADDITIONAL 2ND APPELLANT IS IMPLEADED AS THE LEGAL HEIR OF THE DECEASED SOLE APPELLANT AS PER ORDER DATED 17.05.2005 IN IA.741/2005.** **BY ADVS. SRI.K.C.CHARLES SRI.A.BALAGOPALAN** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1 BHARGAVI, WIFE OF PARAMU, RESIDING AT VETTIKKATTUPARAMBU, EROOR DESOM, NADAMA VILLAGE, EROOR P.O., KANAYANNUR TALUK.** **2 ****PARAMU (DIED) HUSBAND OF FIRST RESPONDENT, RESIDING AT VETTIKKATTUPARAMBU, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK. (LEGAL HEIRS IMPLEADED)** SA.Nos.8, 79 & 84 of 1995 4 - **3 ** ALLI, (DIED) DAUGHTER OF LATE KOCHUKUTTAN AND WIFE OF THAIKKATTU GOPALAN, RESIDING AT AYYAMPILLI CHIRA, PISHARIKOVIL ROAD, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK. (LEGAL HEIRS IMPLEADED)** - **4 THAIKKATTU GOPALAN, HUSBAND OF THE THIRD RESPONDENT, RESIDING AT AYYAMPILLI CHIRA, PISHARIKOVIL ROAD, EROOR P.O., THRIPPUNITHURA.** **5 * RAVINDRAN, (DIED) SON OF LATE KOCHUKUTTAN, EMPLOYED IN K.S.R.T.C., RESIDING AT VETTIKKATTUPARAMBU, EROOR, THRIPPUNITHURA. (LEGAL HEIRS IMPLEADED)** **ADDL.R6 REMA M.P., W/O.LATE RAVINDRAN, AGED ABOUT 50, MADATHIPARAMBIL HOUSE, AYYAPPANKAVU, WELCOME ROAD, KOCHI-18.** **ADDL.R7 V.R.REMYA, D/O.LATE RAVINDRAN, AGED ABOUT 23, .DO. .DO. .DO. .DO. ADDL.R8 V.R.RADHIN, S/O.LATE RAVINDRAN, AGED ABOUT 21, .DO. .DO. .DO. .DO.** *** ADDL.RESPONDENTS 6 TO 8 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED R5 AS PER THE ORDER DATED 12.02.2009 IN IA.1031/2005.** **ADDL.R9 SURESH, S/O.ALLI, AGED 45, RESIDING AT AYYAMPILLICHIRA, PISHARIKOVIL ROAD, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK.** **ADDL.R10 SUSEELA,** **D/O.ALLI, AGED 40, RESIDING AT AYYAMPILLICHIRA, .DO. .DO. .DO. .DO.** **** ADDL.RESPONDENTS 9 AND 10 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED R3 AS PER THE ORDER DATED 12.02.2009 IN IA.1893/2006.** **ADDL.R11 *****BALCHANDRAN, (DIED) S/O.LATE PARAMU, RESIDING AT VETTIKKATTUPARAMBU, EROOR DESOM, NADAMA VILLAGE, EROOR P.O. (LEGAL HEIRS IMPLEADED)** SA.Nos.8, 79 & 84 of 1995 5 **ADDL.R12 ## AMMINI, D/O.LATE PARAMU, RESIDING AT VETTIKKATTUPARAMBU, EROOR DESOM, NADAMA VILLAGE, EROOR P.O. (NAME CORRECTED)** ****** LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 11 & 12 AS PER ORDER DATED 14/2/2019 IN I.A.2879/2010. ADDL.R13 USHA, WIFE OF LATE BALACHANDRAN, AGED ABOUT 51 YEARS, RESIDING AT MADATHICHIRA HOUSE, EROOR P.O., PIN-682 306, NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **ADDL.R14 AKSHAY KUMAR, SON OF LATE BALACHANDRAN, AGED ABOUT 20 YEARS, RESIDING AT MADATHICHIRA HOUSE, EROOR P.O., PIN-682 306, NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** ## **ADDL.R15 AKASH,** **SON OF LATE BALACHANDRAN, AGED ABOUT 17 YEARS, RESIDING AT MADATHICHIRA HOUSE, EROOR P.O., PIN682 306, NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** ## **ADDL.R16 ASHIK,** **SON OF LATE BALACHANDRAN, AGED ABOUT 17 YEARS, RESIDING AT MADATHICHIRA HOUSE, EROOR P.O., PIN682 306, NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** *******LEGAL HEIRS OF DECEASED 11TH RESPONDENT ARE IMPEADED AS ADDL.RESPONDENTS 13 TO 16 AS PER THE ORDER DATED 23.11.2018 IN I.A.1/2018.** **## THE NAME OF THE ADDITIONAL RESPONDENT NO.12 IS CORRECTED AS AMBUJAKSHI INSTEAD OF AMMINI AS PER ORDER DATED 15.1.2020 IN I.A.NO.4/2018.** ## **BY ADVS.** **SRI.K.V.JAYACHANDRAN FOR R1, R4, R12 TO R16 SRI.RAJU V.MATHEW FOR R13 TO R16** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH SA.8/1995, SA.84/1995, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SA.Nos.8, 79 & 84 of 1995 6 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** **SA.No. 84 of 1995** **AGAINST THE DECREE AND JUDGMENT DATED 26-03-1994 IN AS 8/1993 of 3RD ADDITIONAL SUB-COURT, ERNAKULAM** **AGAINST THE DECREE AND JUDGMENT DATED 03-10-1992 IN OS 1386/1989 of II ADDITIONAL MUNSIFF COURT, ERNAKULAM** ## **APPELLANT/APPELLANT/PLAINTIFF:** **1 * BHANUMATHI (DIED) W/O RAMADASAN, RESIDING AT 'SUDARSANA', BLAYIL ROAD, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK** **ADDL.A2 SMITHA, D/O LATE BHANUMATHI AND W/O BIJU K.Y., AGED 27, RESIDING AT SUDARSANA, BLAYIL ROAD, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM.** *** ADDITIONAL 2ND APPELLANT IMPLEADED AS THE LEGAL HEIR OF THE DECEASED SOLE APPELLANT AS PER ORDER DTD 16.5.2005 IN IA 734/2005.** **BY ADV. SRI.K.C.CHARLES** ## **RESPONDENT/RESPONDENT/DEFENDANT:** **BABU S/O RAMADASAN, MOSAIC WORK, RESIDING AT PUTHUSSERI PARAMBU, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH SA.8/1995, SA.79/1995, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SA.Nos.8, 79 & 84 of 1995 7 ## **JUDGMENT** These second appeals arise from O.S. Nos.1386, 1611 and 1758 of 1989 on the files of the II Additional Munsiff Court, Ernakulam. The said suits were tried jointly permitting the parties to let in evidence in O.S.No. 1611 of 1989. The trial court dismissed O.S.Nos.1386 and 1611 of 1989 and decreed O.S.No. 1758 of 1989 and the said decision has been affirmed by the appellate court. The plaintiff in O.S.Nos.1386 of 1989 and 1611 of 1989 and the sole defendant in O.S.No. 1758 of 1989 is one and the same and she is aggrieved by the decisions in the suits as affirmed in appeals. 2. As O.S.No.1611 of 1989 was treated as the lead case, I am referring to the parties in this judgment, unless otherwise mentioned, as they appear in the said suit. O.S.No. 1611 of 1989 is a suit for injunction. The property involved in the suit is an item measuring 18 cents. The case set out by the plaintiff in the plaint is that the said item of property is a portion of a larger extent held by one Sankunni; that the said property devolved on his sister, Kali on his death; that the children of Kali executed Ext.A2 assignment deed in favour of the plaintiff; that the plaintiff is in possession of the property on the basis of Ext.A2 assignment deed and that the defendants who are the daughters of one of the brothers of Sankunni and their respective spouses, are attempting to trespass into the suit property. SA.Nos.8, 79 & 84 of 1995 8 The relief sought in the suit, in the circumstances, was a decree of permanent prohibitory injunction restraining the defendants from trespassing into the suit property. The defendants contested the suit contending, among others, that the first defendant is in possession of the suit property and neither the plaintiff nor Kali ever obtained possession of the suit property. They also contended that if at all the plaintiff has any right in the property, the same is also lost by adverse possession of the first defendant. 3. O.S.No.1386 of 1989 is another suit filed by the plaintiff in respect of the very same property seeking a decree of permanent prohibitory injunction restraining the defendant therein who is the son of another sister of Sankunni from trespassing into the property. O.S.No. 1758 of 1989 is one instituted by the first defendant for a declaration that she has prescribed title to the suit property by adverse possession and for consequential injunction restraining the plaintiff from trespassing into the suit property. 4. On an elaborate consideration of the facts and circumstances of the case, the trial court found that though the plaintiff is the owner of the property, the vendors of the plaintiff or their predecessor Kali were never in possession of the suit property and that the same was in the possession of the first defendant. The trial court also found that the first defendant has prescribed title to the property by adverse possession. In the light of the said findings, the SA.Nos.8, 79 & 84 of 1995 9 court dismissed O.S.Nos.1386 and 1611 of 1989 and decreed O.S.No.1758 of 1989 declaring the title of the first defendant and restraining the plaintiff from interfering with her possession of the suit property. As noted, the said decision of the trial court has been affirmed in appeals and the plaintiff is aggrieved by the said decision. 5. Having heard the learned counsel on either side, the following questions have been formulated for decision in the second appeals; - (1) Is O.S.No.1758 of 1989, being a suit for declaration of title based on adverse possession, maintainable ? - (2) Were the courts below justified in considering the plea of adverse possession raised by the first defendant in the suits instituted merely for prohibitory injunction ? - (3) Is the finding on the question of possession rendered by the trial court as affirmed in appeal perverse in law ? ## 6. The prayer in O.S.No.1758 of 1989 reads thus : “dÉÄß æÉøßW ¼ÈßMߺîÄÞÏß µÞÃáK 1989 æÜ ÄãMâÃßJáù ø¼ßØíd¿í Õµ 164_¦¢ ÈOùÞÇÞøJßÈá çÎW dÉØñÞÕßºî µÞøÃB{ÞW ÏÞæÄÞøá ©JÎÕßÖbÞØÕᢠdÉÄßËÜÕᢠ§æÜïKᢠ¦ÏÄá ®ÝáÄß æµÞ¿áJÄÞÏß ÉùÏáKÕVAá ÕÙµ{ßW ÏÞæÄÞøÕµÞÖÕᢠèµÕÖÕᢠ§æÜïKᢠ©IÞÏßøáKßæÜïKᢠ¦ÏÄá ®ÄßV èµÕÖ¢ µÞÜÙøÃæMGá ÕÞÆßÏáæ¿ èµÕÖÞÈáÍÕJßW §øßAáKÄÞæÃKᢠ¿ß µøâ ØbÏçÎÕ ¥ØÞÇáÕÞæÃKᢠÕÙµæ{çÏÞ, ÕÞÆßçÏçÏÞ ÌtßAáKÄæÜïKᢠµIí ÕÙµ{ßW dÉÄß dÉçÕÖßAáµçÏÞ ÕÞÆßÏáæ¿ èµÕÖÞÈáÍÕæJ Ä¿TæM¿áJáµçÏÞ æºÏñá çÉÞµøáæÄKá¢, ÕÙµ{áæ¿ É¿ßEÞùÄßøßW ÉâVÕîíØíÅÞÈJá ÕÞÆß çÕÜß æµGáKÄßæÈ Ä¿TæM¿áJáµçÏÞ æµGáK çÕÜß ÈÞÖæM¿áJáµçÏÞ æºÏñá çÉÞµøáæÄKá¢, dÉÄßæÏ ÈßçøÞÇߺîí ²øá ÖÞÖbÄ ÈßçøÞÇÈ ” ©JøÕáI޵â. As noted, the aforesaid is a composite prayer for a declaration and injunction. It was clarified by the learned counsel for the first defendant that what is claimed by the first defendant in O.S.No.1758 of 1989 is a declaration that she has prescribed title to the suit property by adverse possession and that she is, therefore, entitled to a decree of permanent prohibitory injunction restraining the plaintiff from trespassing into the suit property. A suit for declaration of title SA.Nos.8, 79 & 84 of 1995 10 based on adverse possession is not maintainable. See **Mohini** v. **Thimmappa** (2015(4) KLT 759). As such, O.S.No. 1758 of 1989 can be regarded only as a suit for injunction based on possession. The question of adverse possession arises only in a suit for recovery of possession based on title and a suit for injunction is one to be decided solely based on possession. All the suits involved in this batch of cases being suits for injunction, the same, therefore, should have been decided based on possession. Coming to the issue of possession, the courts below have concurrently found that the first defendant is in possession of the suit property. The question of possession being a pure question of fact, the finding rendered by the courts below on that question cannot be interfered with by this court in a proceedings under Section 100 of the Code of Civil Procedure, unless it is shown that the said finding is perverse. It is not demonstrated that the finding on the question of possession rendered by the trial court as affirmed by the appellate court is perverse in any manner. Further, the said finding is not seen challenged also in the appeals by formulating appropriate questions of law. The questions formulated for decision in the second appeals are answered accordingly. In the result, S.A.No. 8 of 1995 is allowed in part and the decree in O.S.No. 1758 of 1989 declaring the title of the plaintiff therein by adverse possession is vacated. The decree of permanent prohibitory injunction granted to the plaintiff in the said suit is, SA.Nos.8, 79 & 84 of 1995 11 however, affirmed. S.A.Nos.79 and 84 of 1995 are dismissed affirming the decisions in O.S.Nos.1386 and 1611 of 1989. It is made clear that this judgment will not preclude the plaintiff from instituting a suit for recovery of possession of the property based on her title in accordance with law. It is also made clear that in the event of such a suit being filed by the plaintiff, the first defendant would be entitled to take the plea of adverse possession. **Sd/-** ## **P.B.SURESH KUMAR** **SKS** **JUDGE**