State of Kerala v. Peter John and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN WEDNESDAY, THE 10TH DAY OF JANUARY 2018 / 20TH POUSHA, 1939 AFA.No. 11 of 2001 AGAINST THE JUDGMENT IN A.S.NO.752/1998 DT.4.4.2000 OF THIS COURT O.S.NO.235/1993 OF PRINCIPAL SUB COURT,NORTH PARAVUR DATED 22.7.1996 ## APPELLANTS/DEFENDANTS: 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ERNAKULAM. 3. SPECIAL TAHSILDAR (LA), COCHIN OIL REFINERIES LTD., VYTTILA, COCHIN – 19. BY SPECIAL GOVERNMENT PLEADER FOR REVENUE SRI.M.L.SAJEEVAN. ## RESPONDENTS/PLAINTIFFS: 1. PETER JOHN, S/O. JOHN KOITHARA, KOITHARA HOUSE, KADAVANTHARA SHOUTH, KANAYANNUR TALUK, COCHIN – 20. (DIED) 2. KURIAN JOHN, S/O. JOHN, KOITHARA, KOITHARA HOUSE, KADAVANTHARA SOUTH, KANAYANNUR TALUK, COCHIN. (DIED) 3. K.J.JOSEPH, S/O. JOHN KOITHARA, KOITHARA HOUSE, KADAVANTHARA SOUTH, KANAYANNUR TALUK, COCHIN. 4. ANTONY JOHN, S/O. JOHN KOITHARA, KOITHARA HOUSE, KANAYANNUR TALUK, COCHIN (DIED). 5. GEORGE, S/O. JOHN KOITHARA, KOITHARA HOUSE, KADAVANTHARA SOUTH, KANAYANNUR TALUK, COCHIN. AFA11/2001 - 2 - ## ADDITIONAL RESPONDENTS:: 6. SMT. MARY KURIAN, W/O. KURIAN JOHN, KOITHARA HOUSE, KADAVANTHARA SOUTH, KANAYANNUR TALUK, COCHIN – 20. 7. AJI KURIAN, S/O. KURIAN JOHN, DO. DO. 8. MRS. DEEPUJIN, D/O. KURIAN JOHN, DO. DO. 9. MRS.SHEENA SHABI, D/O. KURIAN JOHN, DO. DO. 10. MR. TONY KURIAN, S/O. KURIAN JOHN, DO. DO. 11. ANIE PETER, W/O. PETER JOHN, ANAMTHURUTHY CHIRA ROAD, KADAVANTHRA-682 020. 12. JOSE PETER K, S/O. PETER JOHN, 6A, ALMORA, ANUSAKTHI NAGAR, MUMBAI, PIN-400 094. 13. SUMA VINCENT, D/O. PETER JOHN, W/O. DR. V.S.VINCENT, DHANYA MISSION HOSPITAL, POTTA, CHALAKUDY, PIN – 680 722. 14. DR. VIJU PETER KOITHARA, S/O. PETER JOHN, 1. BATTI MORE GARDENS, GREAT SANKEY, WARRINGTON, CHISHIRE, UNITED KINGDOM. 15. SUJA B PUNNOORAN, D/O. PETER JOHN, W/O. MR BIJU B. PUNNOORAN, 172-SUGARHILL DRIVE, BRAMPTON, ONTAVIO, L7A3X4, CANADA. 16. KOCHIN REFINERIES LIMITED, AMBALAMUGAL, ERNAKULAM REPRESENTED BY ITS MANAGING DIRECTOR. 17. MARY ANTONY, W/O. LATE ANTONY JOHN, AGED 57 YEARS, HOOUSEWIFE, KOITHARA HOUSE, ST. JOSEPH'S CHURCH ROAD, KADAVANTHRA P.O., ELAMKULAM VILLAGE, KANAYANNUR TALUK, PIN-682020, REPRESENTED BY P/A HOLDER SEENA ANTONY. 18. SONY ANTONY, S/O. LATE ANTONY JOHN, AGED 32 YEARS, EMPLOYED ABROAD, KOTHARA HOUSE, ST.JOSEPH'S CHURCH ROAD, KADAVANTHAR P.O., ELAMKULAM VILLAGE, KANAYANNUR TALUK, PIN-682020, REPRESENTED BY P/A HOLDER SEENA ANTONY. 19. SEENA ANTONY, D/O. ANTONY JOHN AND WIFE OF JIMMY J. VITHAYATHIL, AGED 34 YEARS, TEACHER, C.C.NO.28/1441, COCHIN CORPORATION, KOITHARA HOUSE, ST. JOSEPH'S CHURCH ROAD, KADAVANTHRA P.O., KOCHI – 682 020, NOW RESIDING AT VITHAYATHIL HOUSE, KUNNUMPURAM, KAKKANADU P.O., VAZHAKKALA VILLAGE, KANAYANNUR TALUK, ERNAKULAM (DT), PIN – 682 030. SECOND RESPONDENT DIED. ADDITIONAL R6 TO R10 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED R2, AS PER ORDER DT.19.8.2004 IN I.A.NO.2339/2004. LRS OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 11 TO 15 AS PER ORDER DT.14.3.2012 IN I.A.NO.2335/2010. AFA11/2001 - 3 - ADDITIONAL R16 IS IMPLEADED AS PER ORDER DT.4.7.2012 IN AFA.NO.11/2001. LEGAL HEIRS OF THE DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 17 TO 19 AS PER ORDER DT.14.8.14 IN I.A.2322/14. R1,R3-R6,RADDL.17-R19 BY ADV. SRI.M.P.RAMNATH RADDL 16 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RADDL 16 BY ADV. SRI.P.GOPINATH THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08-01-2018, THE COURT ON 10-01-2018 DELIVERED THE FOLLOWING: “C.R.” ## V. CHITAMBARESH & SATHISH NINAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## A.F.A.No. 11 of 2001 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10[th] day of January, 2018 ## Judgment ## Chitambaresh, J. 1.The State of Kerala, the District Collector and the Special Tahsildar being the defendants assail the judgment of the trial court decreeing the suit which stands confirmed by the learned single Judge. We heard Mr. M.L.Sajeevan, the Special Government Pleader on behalf of the appellants/defendants and Mr. M.P.Ramnath, Advocate on behalf of the respondents/plaintiffs. We also heard Mr. M.Gopikrishnan Nambiar, Advocate on behalf of the additional respondent impleaded in this appeal being a beneficiary of the AFA11/2001 -: 2 :- proceedings for acquisition initiated. The question of law that arises for consideration in this Appeal against First Appeal is: Whether the trespassers could claim adverse possession without denouncing the title of the true owner necessary for a hostile animus apart from possession for the requisite period? 2.Declaration of title by adverse possession in respect of the plaint schedule property and mandatory injunction to pass an award under the Land Acquisition Act, 1894 in favour of the plaintiffs were sought in the suit. The plaint schedule property is 4.46 acres of land in Sy.No.949/5(R.Sy. No.113/2) of Chemmanad Village which admittedly belonged to the Government. The plaint schedule property does not find a place in Ext.A3 lease deed (Document No.2182/50, SRO, Aikkaranad) executed by Tharakkandam Mathew in favour of Moothedathu Mana. It is a fact conceded AFA11/2001 -: 3 :- that the lands lying adjacent to the plaint schedule property have been included in Ext.A3 lease deed over which Tharakkandam Mathew had fixity of tenure. The plaint schedule property does not also find a place in Ext.A4 sale deed (Document No.268/52, SRO, Aikkaranad) executed in favour of Tharakkandam Mathew. - 3.Tharakkandam Mathew sold his lands roping in the plaint schedule property to the plaintiffs under Exts.A1 and A2 sale deeds (Document Nos.3241/62 and 3242/62, SRO, Aikkaranad) for consideration. The plaint schedule property appears for the first time as Item No.3 in Ext.A2 sale deed which has been described as one belonging to the Government ('Pandaravaka Puduval'). The plaint schedule property is subsequently seen divided amongst the plaintiffs under Ext.A8 partition deed (Document No.684/1980, SRO, Aikkaranad) allotting parcels to all. It is on the basis of Ext.A8 partition deed has the suit been laid for declaration AFA11/2001 -: 4 :- of title by adverse possession and for mandatory injunction to pass an award for getting compensation. It appears that no award had been passed in respect of the plaint schedule property even though the same was passed in respect of the adjacent lands belonging to the plaintiffs. 4.The plaintiffs relied on Ext.A5 mortgage deed (Document No.1768/51, SRO, Aikkaranad) and Ext.A6 lease deed (Document No.1769/1951, SRO, Aikkaranad) to show as to how the property was dealt with. Tharakkandam Mathew had executed Ext.A5 mortgage deed in favour of Balakrishna Menon and Muraleedhara Marar and Ext.A6 deed was a lease back from the mortgagees by the mortgagor. The lands were later redeemed under Ext.A7 deed (Document No.3240/62, SRO, Aikkaranad) and the plaint schedule property was also roped in as Item No.2 in the deeds aforesaid. It is significant to note that the plaint schedule property has been described as one belonging to the Government ('Pandaravaka Puduval') AFA11/2001 -: 5 :- in the deeds even by Tharakkandam Mathew. The same description has been carried over in Exts.A1 and A2 sale deeds under which the plaintiffs claimed title as well as in Ext.A8 partition deed amongst themselves. There is no declaration in any one of the documents that the property belonged to the executants by virtue of they possessing the property with a hostile animus. The title of the Government over the plaint schedule property has not been denounced in any one of the documents aforesaid to contend that the plaintiffs had animus possidendi. The executants in fact acknowledged the title of the Government in all the documents which cuts at the root of the case of the plaintiffs claiming adverse possession and limitation. - 5.The Supreme Court in Annakkili v. A. Vedanayagam [(2007) 14 SCC 308 ] has held as follows: - “24. Claim by adverse possession has AFA11/2001 -: 6 :- two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into title.” (emphasis supplied). AFA11/2001 -: 7 :- We notice that the plaintiffs had not denounced the title of the Government but instead acknowledged it in the various documents by the very description of the property indicating absence of hostile animus for adverse possession. 6.Much was argued on the basis of Ext.A10 thandaper extract, Ext.A11 basic tax register, Ext.A12 re-survey plan and Ext.A13 demand notice all of which would only show that the plaintiffs were in occupation. It is trite law that payment of tax does not confer title and therefore Ext.A10 extract and Ext.A11 register only show remittance of tax for fiscal purposes by the occupants. Ext.A12 re-survey plan is only a demarcation of the property by the Revenue authorities indicating the occupants thereof and does not also clinch the title to the property. Less said the better about Ext.A13 notice issued by the Tahsildar demanding amounts due under the Kerala Land Tax Act, 1960 for having planted AFA11/2001 -: 8 :- rubber in the property by the occupants. The fact that the plaintiffs had included the plaint schedule property also for registration with the Rubber Board (reflected by Ext.X1 file) does not also advance their case. The mere creation of documents without any declaration of hostile animus to the knowledge of the Government is insufficient to uphold the plea of adverse possession and limitation. It is worthwhile to note that the plaintiffs had obtained Exts.B4 and B5 certificates of purchase from the Land Tribunal in respect of the property owned by them. But the plaint schedule property is conspicuously absent in them even though the plaintiffs would contend that it was not included as not being part of the leasehold. - 7.Mere inaction on the part of the Government to initiate proceedings for summary eviction of the occupants from the puramboke property under the Land Conservancy Act, 1957 (Kerala) is of no avail. Similar is the failure of the AFA11/2001 -: 9 :- Government or any aggrieved party to file a suit under the Kerala Survey and Boundaries Act, 1961 to rectify the anomaly if any in the re-survey plan. The re-survey was completed in the year 1989 pursuant to which only the mutation was effected and the tax paid by the plaintiffs for the plaint schedule property. Notice can at best be imputed to the Government from that date only and the statutory period of 30 years under Article 112 of the Limitation Act, 1963 had not elapsed when the suit was filed. We are satisfied that this is an unholy attempt on the part of the plaintiffs to lay a claim for compensation under the Land Acquisition Act, 1894 alleging adverse possession. The judgment of the trial court decreeing the suit as confirmed by the learned single Judge suffers from infirmities in law and on facts warranting judicial review. We set aside the judgment of the learned single Judge and the Court of the Principal Subordinate Judge of North AFA11/2001 -: 10 :- Paravur and dismiss the suit by allowing the Appeal against First Appeal with costs throughout. Sd/V. CHITAMBARESH, JUDGE Sd/SATHISH NINAN, JUDGE Sha/060118