Subramanian and Others v. Lakshmi and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943 RSA NO. 827 OF 2004** **AGAINST THE DECREE AND JUDGMENT DATED 23.01.2004 IN AS 626/2003 OF ADDITIONAL DISTRICT COURT-III, THRISSUR AGAINST THE DECREE AND JUDGMENT DATED 16.01.1999 IN OS 401/1997 OF PRINCIPAL MUNSIFF COURT ,IRINJALAKUDA** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** 1 SUBRAMANIAN, 40 YEARS, S/O. VADAKKAKARA NARAYANAN, ANANDAPURAM VILLAGE,, MUKUNDAPURAM TALUK. 2 AMMINI, 68 YEARS, W/O. VADAKKEKARA NARAYANAN, -DO- -DO-. 3 VIJAYA, 37 YEARS, D/O. VADAKKEKARA NARAYANAN, W/O.PANADIL MADHAVAN,, MADAYIKONAM VILLAGE. 4 SINDHU,29 YEARS, D/O. VADAKKEKARA NARAYANAN, W/O. THEKKEPURAKKAL MURALIDHARAN,KUZHUPPILLIKKARA, THRISSUR TALUK. 5 BINDHU, 25 YEARS D/O. VADAKKEKARA NARAYANAN -DO- -DO-. BY ADVS. SRI.M.V.BOSE SMT.NISHA BOSE SRI.VINOD MADHAVAN ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** 1 LAKSHMI D/O. VADAKKEKARA PAPPI, GRAND-DAUGHTER OF, MARASSARI EACHARAN, ANANDAPURAM VILLAGE,, MUKUNDAPURAM TALUK. **RSA NO.827 OF 2004** **2** 2 SREEDHARAN, 69 YEARS S/O. VADAKKEKARA PAPPI, BROTHER OF 1ST RESPONDENT, -DO- -DO-. 3 JANU, D/O. VADAKKEKARA PAPPI 64 YEARS, -DO- -DO-. 4 GOPALAN, S/O. VADAKKEKARA PAPPI 59 YEARS, -DO- -DO-. 5 BHARGAVI, 54 YEARS D/O. -DO- -DO-. 6 SUBRAMANIAN, 50 YEARS S/O. -DO- -DO-. BY ADV. SRI.P.K.JOSE THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **RSA NO.827 OF 2004** **3** ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No.827 of 2004 --------------------------------------------- Dated this the 10[th] day of November, 2021 ## **JUDGMENT** This Regular Second Appeal emanated from the judgment and decree passed by the Principal Munsiff's Court, Irinjalakuda in O.S.No.401/1997. The III-Additional District Court (Adhoc), Thrissur, confirmed the decree and judgment of the Trial Court. 2. The original suit was instituted for partition of the plaint schedule property. The plaint schedule property originally belonged to Eacharan, Kochu and Nanu. The plaintiffs are the issues of Pappi, the granddaughter of Eacharan. The legal representatives of Kochu and Nanu executed Ext.A1 assignment deed No.1719/1963 in favour of Narayanan, the father of defendant No.1. In the assignment deed, the share of Pappi, fixed as Rs.100/-, was reserved. It was recited in the document that Pappi had promised to execute a registered receipt on receipt of her share. 3. The case of the plaintiffs is that they are in joint **RSA NO.827 OF 2004** **4** possession of the plaint schedule property along with the defendants. The challenge of the defendants is that Pappi had lost right over the property by way of adverse possession. 4. During the trial, PW1 and DW1 were examined. Exts. A1 to A3 were marked on the side of the plaintiffs and Exts.B1 to B7 were marked on the side of the defendants. 5. The Trial Court decreed the suit holding that plaintiffs are entitled to 1/3rd share of the plaint schedule property and the defendants are entitled to 2/3rd share of it. The First Appellate Court confirmed the findings of the Trial Court. On 14.12.2004, this Court admitted the appeal. The following substantial questions of law were formulated in this case: - (i) Have the defendants proved ouster in accordance with law? - (ii) Whether the Courts below misconstrued the pleadings and evidence to record the finding that defendants failed to establish ouster. 6. Heard Sri. Vinod Madhavan, the learned counsel **RSA NO.827 OF 2004** **5** for the appellants/defendants. 7. The question that falls for consideration is whether the appellants/defendants established ouster against the plaintiffs in respect of the plaint schedule property. 8. The learned counsel for the appellants/defendants contended that both the Courts below misconstrued the pleadings and evidence on the question whether the defendants could establish ouster in respect of the plaint schedule property against the plaintiffs. The learned counsel submitted that the Courts below lost sight of the contentions of the defendants regarding ouster in the written statement. 9. It is trite that a plea of adverse possession by a co-owner can be taken, if that person can prove that he has ousted all the co-owners in the property coupled with all other ingredients to constitute adverse possession. 10. In _**P. Lakshmi Reddy v. L. Lakshmi Reddy**_ **, [1957 SCR 195 : AIR 1957 SC 314]** while considering the evidentiary burden to establish adverse possession of one co-heir against another the Apex Court held thus:- **RSA NO.827 OF 2004** **6** “4. Now, the ordinary classical requirement of adverse possession is that it should be _nec vi nec clam nec precario_ . (See _Secretary of State for India_ v. _Debendra Lal Khan_ [(1933) LR 61 IA 78, 82] ). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See _Radhamoni Debi_ v. _Collector of Khulna_ - [(1900) LR 27 IA 136, 140] ). But it is well settled that in order to establish adverse - possession of one co heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of - - the properties. Ouster of the non possessing co - heir by the co heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The coheir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other coheir's title. (See _Cores_ v. _Appuhamy_ [(1912) AC 230] ). It is a settled rule of law that as between - co heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.” 11. In **Vidya Devi @ Vidya Vati (Dead) By Lrs v. Prem** **Praksah & Others [1995 (4) SCC 496]** the Apex Court had enumerated the three elements for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. **RSA NO.827 OF 2004** **7** 12. I have carefully gone through the pleadings in the written statement. Pleadings regarding hostile animus and exercise of the right of exclusive ownership openly and to the knowledge of the other co-owner are absent. 13. The plaintiffs have specifically pleaded that they have been taking yield from the plaint schedule property in the capacity of co-owners prior to the institution of the suit, and thereafter, the defendants refused to share the profits from the plaint schedule property. PW1 gave evidence in support of this pleading. So the contention of the learned counsel for the appellants/defendants that the defendants could establish non-participation in the enjoyment of the profits of the property by the plaintiffs and sharing of profits from the property is not sustainable. 14. The Appellants/defendants relied on Ext.A1 assignment deed executed in 1963. As per Ext.A1, the plaint schedule property was assigned in favour of Narayanan, the father of defendant No.1, by the legal heirs of Nanu and Kochu. In Ext.A1, the right of Pappi, the mother of the plaintiffs, was reserved for consideration of Rs.100/-. It is **RSA NO.827 OF 2004** **8** pertinent to note that the mother of the plaintiffs was not a party to Ext.A1. All the legal heirs of Nanu and Kochu relinquished their right over the plaint schedule property. The recitals in Ext.A1 are not binding upon the plaintiffs' mother. 15. The learned counsel for the appellants/defendants further contended that, there is evidence to convince the Court that the properties were alienated to the third party with the knowledge of the plaintiffs and therefore, if at all they had any right over the property, the same was lost by way of adverse possession and ouster. The defendants failed to establish that the share of Pappi was given after the execution of Ext.A1 document. The Trial Court as well as the First Appellate Court held that the co-ownership of the plaintiffs over the plaint schedule property was proved by way of Ext.A1 itself. The Courts below concurrently found that the defendants failed to establish ouster of the plaintiffs from the property. The ouster does not mean actual driving out of the co-sharer from the property unless it is coupled with a declaration of hostile animus, the exercise of the right of exclusive ownership openly and to the knowledge of the other co-owner. **RSA NO.827 OF 2004** **9** 16. The learned counsel for the appellants relied on _**Ammini Tharakan and Others v. Dr.Lilly Jacob and Others [2013 (4) KHC 599], Gangadharan Nair K. and Others v. P.O. Bhanumathi Amma and Others [2014 (2) KHC 99] and Vasantiben Prahladji Nayak and Others v. Somnath Muljibhai Nayak and others [2004 KHC 485]**_ to substantiate his contentions. 17. In **Ammini Tharakan and Others v. Dr.Lilly Jacob and Others** _**(supra)**_ the Division Bench of this Court held that, the conduct by way of non-participation in the enjoyment of the profits of the property or absence of objection to the exclusive enjoyment by the other co-owners and also the denial of one's own right as a co-owner and possession of another to the exclusion of the other heirs amount to clear evidence of ouster. The Division Bench further held that in the absence of any evidence to show that there was any manner of sharing the profits of the property, and, with the evidence that one among the sharers has been acting as if he alone is entitled to it, such open and exclusive enjoyment of the property for a long number of years amounts to ouster of the rights, if any, of the other sharers. **RSA NO.827 OF 2004** **10** 18. In _**Ammini Tharakan (supra)**_ the parties were Christians governed by Cochin Christian Succession Act. The plaintiff therein was the defendant in another suit who had filed Ext.B10 written statement admitting that she had no share in the assets sought to be partitioned. In that case, the Division Bench held that it could not be assumed that the plaintiff had ever thought of any right over the subject matter until the pronouncement of the Apex Court in _**Mary Roy and Others v. State of Kerala and Others [1986 KHC 129 : 1986**_ _**KLT 508 (SC)]**_ . Taking into account the admission of the plaintiffs therein as to the particular state of affairs, the state of mind, intention and conduct of the parties, the Division Bench held that as there was the evidence that one among the sharers has been acting as if he alone is entitled to it, such open and exclusive enjoyment of the property for a long number of years amounts to ouster of the rights, if any, of the other sharers. The facts in the present case are entirely different from the facts considered in _**Ammini Tharakan's case.**_ Therefore, the ratio in that case is not applicable to the present fact situation. 19. In _**Vasantiben Prahladji Nayak (supra)**_ the Apex **RSA NO.827 OF 2004** **11** Court considered a case where there was a concurrent finding of the facts recorded by the Trial Court and the First Appellate Court that the suit properties were in possession of the respondents therein from 1941 in exclusion of the other co-sharers. In view of the above said concurrent findings that the respondents were in adverse possession, the Apex Court found that the respondents established ouster with hostile intention long and uninterrupted possession; and exercise of the right of exclusive ownership openly and to the knowledge of the owner. Therefore, the facts considered in _**Vasantiben Prahladji Nayak's case**_ also are different from the facts in the present case. 20. In _**Gangadharan Nair (supra)**_ this Court held that to establish ouster, there must be clear evidence showing that possession is held by one co-owner with the hostile animus to keep out the other co-owners from possession. When a co-owner in possession does some other overt act in consequence of which other co-owner is ousted, there is constructive ouster, but, law requires in such cases not only that there should be some overt act on the part of the coowner in possession but that other co-owners affected **RSA NO.827 OF 2004** **12** thereby should have either actual or constructive notice of such acts. In a case where such notice is actually given, the possession at once becomes adverse. Where no such notice is given the co-owner claiming title by adverse possession has to prove that the acts done, which are visibly hostile, notorious and adverse to the interest of the other co-owner are within the knowledge of the co-owner, sought to be ousted. The appellants/defendants failed to plead and establish the positive acts constituting adverse possession to the knowledge of the plaintiffs. They failed to prove the acts done that are visibly hostile, notorious and adverse to the interests of the plaintiffs. There is no convincing evidence to show that the appellants were acting as if they alone are entitled to the property in exclusion of the plaintiffs for a sufficiently long number of years to constitute ouster. This Court finds no reason to record that the First Appellate Court as well as the trial court misconstrued the pleadings and evidence in this case. Both the Courts below analysed the pleadings and evidence in accordance with the established principles of law. So, the substantial questions of law are **RSA NO.827 OF 2004** **13** answered against the appellants. Hence, the Regular Second Appeal is dismissed. The parties are directed to bear their respective costs. **Sd/-** **K.BABU JUDGE** VPK