Savithri v. Thajuneeza, A. Muneera, A. Sameera, and A. Noufal

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 5TH DAY OF SEPTEMBER 2013/14TH BHADRA, 1935 RSA.No. 593 of 2013 () ----------------------- AGAINST THE JUDGMENT IN AS 67/2009 of ADDL.DISTRICT COURTI,MAVELIKKARA DATED 27-09-2012 AGAINST THE JUDGMENT IN OS 1/2001 of MUNSIFF COURT,KAYAMKULAM DATED 13-02-2009 ## APPELLANT(S)/APPELLANTS/DEFENDATNS AND LRS OF 2ND DEFENDANT: 1. THAJUNEEZA - D/O.YOUSUF KUNJU, MUNEERA MANZIL, PERINGALA MMURI KAYAMKULAM VILLAGE. 2. A.MUNEERA - D/O.THAJUNEEZA, USHUS @ MUNEERA MANZIL, - PERINGALA MURI, KAYAMKULAM VILLAGE. 3. A.SAMEERA - D/O.THAJUNEEZA, USHUS @ MUNEERA MANZIL, - PERINGALA MURI, KAYAMKULAM VILLAGE. 4. A.NOUFAL, S/O.ABDUL LATHEEF, MUNEERA MANZIL, PERINGALA MURI, KAYAMKULAM VILLAGE. - BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP - SRI.MANU SEBASTIAN ## RESPONDENT(S)/RESPONDENT/PLAINTIFF: ----------------------------------- SAVITHRI D/O.JANAKI, CHANNAN PARAMBIL VEEDU, CHIRAKKADAVAM MURI KAYAMKULAM VILLAGE-686 520. BY ADVS. M/S. K. SHAJ & R. ARUN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05-09-2013, ALONG WITH RSA. 670/2013, RSA. 720/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **N.K. BALAKRISHNAN, J.** **.........................................................** **R.S.A. No. 593 of 2013, 670/2013 & 720/2013 ...............................................................** ## **Dated: 5[th] September, 2013** ## **JUDGMENT** Appellants in these cases are the defendants in O.S.1/2001 and O.S.32/2002. They are the plaintiffs in O.S.16/2002. O.S.16/2002 was dismissed by the trial Court. O.S.1/2001 was decreed granting recovery of possession of B schedule property after demolishing the plaint C schedule lean to and the shed described therein. O.S. 32/2002 filed by the very same plaintiff was decreed granting a permanent prohibitory injunction against the appellants herein from enclosing the pavement portion towards west of the plaint schedule property or interfering with the plaintiff's user of the above portion of the property. _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **2** 2. Challenging the decree and judgment in the three suits mentioned above, appellants herein filed appeals before the District Court. The appellate Court concurred with the findings entered by the trial Court and dismissed all the appeals. Hence, these three Second Appeals have been filed. 3. Plaint schedule property and the property claimed by the appellant were the properties partitioned as per Ext.A2 partition deed dated 27-4-1964. One Koyakutty had purchased the plaint schedule property shown in the schedules to the plaint filed by the respondent herein (O.S. 1/2001 and O.S. 32/2002) from one Daniel who had obtained the said property as per Ext.A2. The respondent herein purchased the property from Koyakutty as per Ext.A1 sale deed dated 11-2-1991. The appellants herein claimed title to the property held by them as per Ext. B1 sale deed dated 18-2-1991. 4. A suit as O.S. 44/1992 was filed by the respondent herein for injunction. Decree for injunction was declined _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **3** on the ground that the appellants were in possession of the said property but it was observed that the remedy available to the respondent is to seek recovery of possession of the said property. Hence, O.S. 1/2001 was filed seeking recovery of possession of the B schedule property after removing or dismantling the lean to and the shed situated in the B schedule property. 5. O.S. 32/2002 was subsequently filed by the respondent for injunction restraining the appellants herein from enclosing the pavement portion towards west of the plaint schedule property or interfering with the plaintiff's user of the said portion. 6. The properties were measured and identified by the Advocate Commissioner with the help of the Surveyor. Ext.C1 (a) is the plan prepared by the Advocate Commissioner which forms part of the decree granted by the trial Court which was confirmed by the appellate Court. The plot IJKEFGH is the property which belongs to the defendant. That was item No. 3 of Ext.A2 partition deed. _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **4** ABJI shows the lie of the building which belongs to the respondent herein. BCKJ is the plot where the shed belonging the defendants/appellants is situated. There is a bit of land which is described as an open space lying to the south of BCKJ. That plot is demarcated as CDEK. There is a narrow lane lying to the west of the building occupied by the respondents and the vacant space mentioned above. That lane is seen marked as LMDCBA. The extent of that lane is shown as 8 Sq. metres. The area of the open space mentioned earlier lying to the south of appellants shed is 7 Sq. metres. The area of respondents' building is shown as 22 Sq. metres whereas the area which is occupied by shed belonging to the appellants is shown as 37.5 sq. metres. 7. Ext.A1 is the title deed relied upon by the respondent/plaintiff which was executed in her favour on 11-2-1991. What were assigned thereunder are shop room Nos. 413 and 414 of Ward No. 32 of Kayamkulam Municipality and also the lean to situated behind those two shop rooms. It was specifically mentioned that the _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **5** shop room bearing No. 414 was held by the tenant as per the rent deed executed by Padmanabhan Madhavan on 203-1990. Room No. 413 mentioned above was also outstanding on tenancy right in the name of one Pappu Uthaman as per rent deed dated 20-3-1990. It was further recited that the lean to portion was in the occupation of Abdul Majeed and on his death it was occupied by his legal heirs. In Ext.A1, the two shop rooms bearing No. 413 and 414 of Ward No. 72, the lean to, the land/area situated still on the rear side and also the trees standing thereon are mentioned. Ext. B1 is the document obtained by the appellant on 18-2-1991 . The description shown in that document shows that Koyakutty had obtained two cents of land being the western portion of the property sold as per Ext. B1. Therefore, Koyakutty's title in respect of that western portion of land measuring 2 cents was admitted on 18-2-1991. There was no denial of Koyakkutty's title. 8. The learned counsel for the respondents would _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **6** submit that the property covered by Ext.A1, namely, the area occupied by the two shop rooms and the southern lean-to and the open space are well demarcated by the Advocate Commissioner in Ext. C1 (a) plan and so there can be no doubt regarding the identity of the land. The extent of the plaint B schedule property is almost ¾ cents. That portion has been separately demarcated by the Commissioner in Ext. C1 (a) plan. The lean-to portion is described as the plaint C schedule property. The shop rooms on the northern portion are situated in the plot marked as ABCDEKJI in Ext. C1 (a) plan. The shed situated to the south of the shop room is shown as BCKJ. The appellants would contend that the plot BCKJ belongs to them and that it is used by them as the kitchen house of their hotel. As has been stated earlier the open space lying to the south of the portion/lean-to which according to the defendants/appellants is the kitchen is demarcated in Ext. C1(a) as the plot CDEK. 9. The fact that the plaint A schedule property, of _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **7** which the B schedule and C schedule are portions, was obtained by Daniel as per a partition deed is not disputed. Ext.A2 is the certified copy of that partition deed. The plaint schedule property was described as item No. 3 therein. The courts below relied upon the Ext.C1 Commissioner's report and C1(a) plan to hold that the property covered by Ext.A1 which was the property obtained by Koyakutty the assignor from Daniel (the sharer to whom it was allotted as item No. 3) was clearly located. The appellants would contend that the respondent has absolutely no right over the lean to which is described by the appellants as the kitchen attached to the hotel. According to the appellants the said kitchen portion and the two shop rooms were obtained as per Ext. B1 sale deed dated 18-2-1991. But a reading of the description of Ext. B1 would reveal that no portion of the land towards the west of the shop room upon which the appellants claim right was obtained assignment by virtue of Ext. B1. In Ext. B1 the property obtained assignment is shown to be having _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **8** definite measurement in links. That does not extent to the southern portion of the A schedule property. Therefore, the contention that the lean to portion and the vacant space lying to its south are portions of the property obtained as per Ext. B1 cannot be sustained at all. The courts below were not inclined to accept the contention advanced by the appellants that the lean to portion which according to the appellants is their kitchen is part of Ext. B1 property. That is a finding of fact entered by the courts below based on the recitals in Exts. A1 and A2 and the observations made in the Commissioner's report and plan. Cogent and convincing reason has been given by the courts below to accept the case advanced by the plaintiff/respondent regarding that aspect. 10. The learned counsel for the appellants would submit that there is a recital in the body of the document (Ext. B1) that the kitchen and the land lying to the south just adjoining to the kitchen were obtained by the appellant's husband Abdul Latheef and it was in his _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **9** possession. But admittedly the assignor had no title to the said property; namely, kitchen and the land lying to the south of the same. Therefore, the recital made in Ext.B1, in respect of which the assignor had no title, can confer no right on the assignee. Hence, the recital in Ext.B1 that the kitchen and the land lying to the south of the kitchen were in the possession of Abdul Latheef cannot be accepted at all. 11. In Ext. A1 also it was mentioned that the assignee who is the respondent herein has to get eviction of the rooms 413 and 414 of Ward No. 32 and also the leanto mentioned above which would indicate that the lean-to was in the possession of the tenant. There is no case for the defendants/appellants that the lean to and the vacant space lying to its south were obtained by the appellant on leasehold right from the owner of the land. In other words, no tenancy or lease was set up by the appellants before the courts below. Therefore, it can be found that by virtue of Ext. A1 the plaintiff/respondent had obtained title to A _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **10** schedule property, of which the B schedule and C schedule are portions. If so, the defendants/appellants cannot resist the suit for recovery of possession or for injunction claimed by the respondent. 12. It is also important to note that there is no mention in Ext. B1 that the kitchen is the lean to situated to the south of the property obtained assignment by the respondent as per Ext.A1. Even if it is assumed that a wrong recital was there in Ext. B1, that the said kitchen was also assigned in favour of the appellant that will not confer title to him in view of the fact that the assignor had not obtained any title over the lean to or the land lying to the south of it. The courts below also noticed that the description of the property shown in Ext. B1 and the schedule of property shown in O.S. 60/2002 do not reconcile with each other. It was observed by the trial Court that there is considerable variation in the description (boundary description in the plaint schedule property in O.S. 16/2002 which is a suit filed by the appellants herein _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **11** from the boundary description of the property shown in Ext. B1). But the learned counsel for the appellant would submit that there is no discrepancy at all as contended by the respondent . In the schedule to the plaint in O.S. 16/2002 it was mentioned that the property therein are the shop rooms bearing Nos. 363 and 364 of Ward No. 32 and the kitchen lying to the south of those shop rooms and the vacant space lying to the south and west of the same. The description as to the wall of the building mentioned therein is seen to be incorrect. The description of the plaint schedule or the schedule to Ext. B1 does not include the lean to and the portion lying to the south of the plaint B schedule property. The lie and position of the plots as can be seen from Ext.C1 (a) would also make it clear that the property that belongs to the appellants is the one lying to the east of the red line in Ext. C1 (a) whereas the property that belongs to the plaintiff /respondent is the one lying to the west of the red line. What was obtained by the defendants/appellants as per Ext. B1 is two cents of land having in it the two shops _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **12** room Nos. 363 and 364. The property obtained by the plaintiff as per Ext. A1 takes in the two shop rooms bearing Nos. 413 and 414 and the lean to and the open space behind it. A perusal of the plan submitted by the Advocate Commissioner would clear the doubt, if any, as to the identity of the property covered by Exts. A1 and B1. The suit for recovery of possession was filed in the year 2001. The plaint schedule property was obtained as per Ext.A1 dated 11-2-1991. The appellant obtained his property as per Ext. B1 dated 18-2-1991. Hence, the contention that the plaintiff was out of possession of the plaint schedule property for more than 12 years is unsound and unsustainable. 13. A party claiming adverse possession must prove his possession 'nec vi, nec clam, nec precario', that is peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and it _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **13** must be actual, visible, exclusive hostile and continued over the statutory period. (See the decisions of the Supreme Court in **S.M. Karim v. Bibi Sakinal - AIR 1964 SC 1254, Parsinni v. Sukhi – (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567).** In order to constitute adverse possession physical fact of exclusive possession and the animus possidendi to hold it as owner in exclusion of the actual owner are the most important factors that are to be accounted. Therefore, a person who claims adverse possession should show on what date he came into possession and what was the nature of his possession and whether the factum of possession was known to the other party; besides, how long his possession was continued. It must also be proved that his possession was open and undisturbed. The dictum laid down by the Hon'ble Supreme Court in the aforesaid decisions is that a person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **14** establish his adverse possession. (See also the decision of the Hon'ble Supreme Court in **P.T. Munichikkanna Reddy and Others v. Revamma and Others - AIR 2007 SC 1753)** . 14. The learned counsel for the appellants has relied upon the decision of a Single Bench of this Court in **Hamza Haji v. Rabia Umma - 2002 (1) KLJ 237** in support of his submission that the appellants were in possession of the property on independent right and not admitting the plaintiff's title and that possession continued for more than 12 years and also as on the date of the suit and so the respondent is not entitled to get a decree for recovery of possession. The facts dealt with therein are entirely different. In that case, there was an admission on the part of the plaintiff that he was out of possession of the property for more than 30 years. In that context, it was held that the burden of proof is on the defendant. In the light of the Supreme Court decisions referred to earlier the aforesaid said decision cannot come to the rescue of the _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **15** appellants. 15. It was also held by the Apex Court in **State of Haryana v. Mukesh Kumar and Others - (2011) 10 SCC 404:** _“A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to celarly plead and establish all facts necessary to establish adverse possession. Though we got this law of adverse possession from the British. It is important to note that these days the English Courts are taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission”._ ## 16. The Hon'ble Supreme Court has held in **Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan -** ## **(2009) 16 SCC 517** as : _“32. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a_ _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **16** _windfall for a dishonest person who had illegally taken possession of the property of the true owner. the law ought not to benefit a person who in a clandestine manner takes possession of the property of a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner._ _**33.** We fail to comprehend why the law should on place premium dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation”._ 17. There is no merit in the contention advanced by the appellants that the courts below went wrong in granting a decree of declaration of title over and above the extent of property covered by Ext.A1. The property was correctly identified with reference to the boundary description shown in Ext.A1. 18. It is vehemently argued by the learned counsel for the appellant that the property claimed by the respondents and what has been demarcated by the Commissioner in _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **17** Ext. C1 (a) plan is in excess of the property which was covered by her title deed. That argument is also unsustainable. The east-west measurement on the northern side is shown as 5.3 metres plus 0.07 metres. In other words it would be only 5.4 metres. The east-west measurement on the northern boundary of the appellants' property is also 5.4 metres. Both parties had two cents of land each as per the original title deed. Therefore, the respondent's property is the property lying to the west of the red line which is inclusive of the plot LMDCBA. The extent of LMDCBA is only 8 Sq. metres. Thus, the contention that the respondent had not obtained title to the plaint schedule property must fall to the ground. 19. The suit is for recovery of possession of the disputed property lying to the south of the shop room mentioned earlier. Those are portions of the property covered by Ext.A1. According to the plaintiff, the defendants were in possession of the B schedule property only by way of the permission granted to them. Since the _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **18** suit is for recovery of possession on the strength of title covered by Ext.A1 title deed, the question whether the defendants/appellants were in permissive occupation of the property, or not is not germane for consideration. Once the plaintiffs title to the property is established then decree for recovery of possession must certainly follow unless the defendants are able to establish that the plaintiff's title is lost by adverse possession and limitation. There is no case for the defendants that the defendants/appellants were in possession of the disputed property denying the plaintiff's title. At one place it was stated that, as per Ext. B1, it was mentioned that the kitchen portion was obtained by the husband of the first appellant from another person. At another place the defendants contend that the disputed property forms part of the property purchased by them as per Ext. B1. There is no specific case as to the date or month since when the defendants were in possession of the property asserting hostile title. Mere possession howsoever long it may be is _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **19** not sufficient to hold that the plaintiff's title to the property is lost by adverse possession and limitation. The possession must commence from wrong and it must satisfy the requirements as mentioned earlier so as to prescribe title by adverse possession. In fact the appellants had no specific case that they have perfected title to the disputed portion by adverse possession and limitation. 20. It is vehemently argued by the learned counsel for the respondent that there is absolutely no specific pleading regarding adverse possession. The argument vehemently advanced by the learned counsel for the appellant that since the plea of permissive occupation set up by the respondent is not proved, the respondent should be non-suited also does not gain ground in view of the fact that the suit is actually for recovery of possession on the strength of title which can be defeated only if the appellant succeeds in proving that he has perfected title to the disputed property by adverse possession and limitation. There is no specific pleading when his possession became adverse. Even in _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **20** Ext. B1, obtained by the appellant the plaintiff's title to the two cents of land which was assigned by Koyakutty was admitted. Ext. B1 is dated 18-2-1991. The suit O.S. No.1/2001 for recovery of possession was filed in 2001. 21. The contention that there was suppression on the part of the respondent in producing the best evidence is also found to be untenable. Ext.A1 title deed and the prior title deed of the plaintiff's assignor's assignor; namely, Ext.A2 the partition deed were produced. The fact that the plaintiff's predecessor had obtained title to the said property was not disputed and so there remains nothing to be proved by adducing any other evidence. The only question was with regard to the identity . That could be established by getting the property surveyed and demarcated as shown in Ext.C1 (a) plan. It is pointed out by the learned counsel for the respondent that, no objection was filed by the appellants questioning the correctness and acceptability of the report and plan submitted by the Adv. Commissioner. Therefore, the _**R.S.A. No. 593 of 2013, 670/2013 & 720/2013**_ **21** contention raised by the appellants regarding the survey and demarcation of the two plots done by the Commissioner cannot be sustained. 22. The courts below have analysed the entire evidence in the correct perspective and found that the respondent is entitled to get a decree for recovery of possession in O.S. 1/2001 and for an injunction as sought for in O.S.32/2002. The courts were also justified in dismissing the suit O.S.16/2002 filed by the appellant herein. I find no merit in the these appeals. No substantial question of law arises in any of these appeals. Hence, all these appeals are dismissed in limine. _Dated this the 5[th] day of September, 2013._ ## **N.K.BALAKRISHNAN, JUDGE.** ani/