T.A. GEORGE & ANIES v CHANDRASEKHARAN NAIR

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 9[TH] DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944** **RSA NO. 949 OF 2003** **AGAINST THE JUDGMENT IN OS 54/1983 OF MUNSIFF COURT,THODUPUZHA AS 29/2000 OF SUB COURT, THODUPUZHA** **-----** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** 1 T.A.GEORGE S/O.AUGUSTHY, THADATHIL HOUSE (ELIVALUMKAL), DHARBHATHOTTI BHAGOM, VENMATTOM KARA, KODIKULAM VILLAGE, THODUPUZHA TALUK. 2 ANIES, W/O.GEORGE, THADATHIL HOUSE (ELIVALUMKAL), DHARBHATHOTTI BHAGOM, VENMATTOM KARA, KODIKULAM VILLAGE, THODUPUZHA TALUK. BY ADVS. SRI.K.K.CHANDRAN PILLAI SRI.BENNY GERVACIS ## **RESPONDENT/RESPONDENT/PLAINTIFF:** 1 CHANDRASEKHARAN NAIR, **(DIED; LRs impleaded)** S/O.RAMAN PILLAI, PERINGAPPILLIL HOUSE, THOTTUMUKHAM KARA, ALUVA. ## * **ADDL. R2 TO R7** ADDL.R2 RAVIKUMAR,(DIED) S/O. CHANDRASEKHARAN NAIR(DIED), PERINGAPPILLIL HOUSE, THOTTUMUGHAM P.O., ALWAYE- 683 105. ADDL.R3 POOJA C.NAIR, D/O CHANDRASEKHARAN NAIR (DIED), PERINGAPPILLIL HOUSE, THOTTUMUKHAM P. O., ALWAYE – 683105. ADDL.R4 SONA RAVIKUMAR, W/O RAVIKUMAR, PERINGAPPILLIL HOUSE, THOTTUMUKHAM P. O., ALWAYE – 683105. **RSA NO. 949 OF 2003 -2-** ADDL.R5 ABHIRAMI, D/O RAVIKUMAR, AGED 16 YEARS, PERINGAPPILLIL HOUSE, THOTTUMUKHAM P. O., ALWAYE – 683105. ADDL.R6 MALAVIKA, D/O RAVIKUMAR, AGED 14 YEARS, PERINGAPPILLIL HOUSE, THOTTUMUKHAM P. O., ALWAYE – 683105. ADDL.R7 SUDHA KEERTHI, AGED 12 YEARS, D/O RAVIKUMAR, PERINGAPPILLIL HOUSE, THOTTUMUKHAM P. O., ALWAYE – 683105. ## ***(THE LEGAL REPRESENTATIVES OF DECEASED R1 AND R2 ARE IMPLEADED AS ADDL.R3 TO R7 AS PER ORDER DATED 17.02.2021 IN IA.1/2019.)** ## * **ADDL. R8 TO R12** ADDL.R8 GIGI JOSEPH, S/O.MANJAKUNNEL JOSEPH,AGED 47,RESIDING AT KALIYAR KARA,VANNAPURAM VILLAGE,KALIYAR P.O.-685 607, THODUPUZHA,IDUKKI DISTRICT. ADDL.R9 ROSE MARY, W/O.GIGI JOSEPH,MANJAKUNNEL JOSEPH,AGED 45,RESIDING AT KALIYAR KARA,VANNAPURAM VILLAGE,KALIYAR P.O.-685 607, THODUPUZHA,IDUKKI DISTRICT. - ADDL.R10 VATSAMMA, W/O.PALUKUNNEL GEORGE,AGED 60,THODUPUZHA KARA,THODUPUZHA TALUK,THODUPUZHA VILLAGE,THODUPUZHA IDUKKI-685 584. ADDL.R11 JINS GEORGE, S/O.PALAKUNNEL GEORGE,AGED 41 YEARS,THODUPUZHA KARA,THODUPUZHA TALUK,THODUPUZHA VILLAGE,THODUPUZHA, IDUKKI-685 584. - ADDL.R12 GEORGE, S/O.MATHEW,AGED 63 YEARS,THODUPUZHA KARA,THODUPUZHA TALUK,THODUPUZHA VILLAGE,THODUPUZHA, IDUKKI-685 584. ## ***(THE ADDL.R8 TO R12 ARE IMPLEADED AS PER ORDER DATED 14.03.2022 IN IA.1/2021.)** **RSA NO. 949 OF 2003 -3-** BY ADVS. R.S.KALKURA – R1, R8 TO R12 GEORGE MATHEW – R4 TO R7 M.D.SASIKUMARAN - -DOPRAVEEN S. - -DOSUNIL KUMAR A.G - -DODIPU JAMES - -DOMATHEW K.T. - -DOGEORGE K.V. - -DO- THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.S.A. No.949 of 2003** **= = = = = = = = = = = = = = = = = = Dated this the 9[th] day of November, 2022** ## **J U D G M E N T** The defendants in a suit for declaration of title and recovery of possession with mesne profits, are the appellants. The suit was concurrently decreed by the courts. 2. The plaint schedule consists of two items. Plaint 'A' schedule has an extent of 67 cents. Plaint 'B' schedule is a building situated in the plaint 'A' schedule property. 3. In the year 1962, under a Rubber Plantation Scheme, an extent of 3.50 Acres was given possession of by the Government to the plaintiff, for rubber cultivation. The plaint 'A' schedule is part of the said 3.50 Acres. Exts.A1 and A2 are the 'patta' and assignment order respectively, issued in favour of the plaintiff in the year 1970. The 3.50 Acres thus given to ## **R.S.A. No.949 of 2003** -: 2 :- the plaintiff is shown as plot number 219 in the group sketch prepared for the purpose. The assignment was on the condition that, out of the 3.50 Acres, 3 Acres will be cultivated with rubber, and the remaining extent could be utilized for construction of house and for other cultivations. The first defendant was employed for tapping the rubber trees in the property. He was permitted to reside in the hut in the ‘A’ schedule viz, 'B' schedule. After the marriage of the first defendant with the second defendant, they lived together in the hut. The first defendant was relieved from the services of the plaintiff in the year 1978. However, the defendants failed to vacate the 'B' schedule building. It is accordingly that the suit was filed. The suit as originally filed was one for prohibitory injunction. It was later amended for recovery of possession. 4. The defendants denied the title of the plaintiff. It was contended that the plaint 'A' schedule is not part of the property belonging to the plaintiff ## **R.S.A. No.949 of 2003** -: 3 :- under Exts.A1 and A2 assignment. It was further contended that, from out of the 3.50 Acres assigned to the plaintiff, since the 'A' schedule was found to be uncultivable land, in lieu of plaint 'A' schedule another plot bearing No.251 was allotted by Government to the plaintiff. Therefore, the plaintiff does not have title over the property. It was also pleaded that the defendants have acquired title over the property by adverse possession and limitation. 5. The suit was originally dismissed by the trial court. The appellate court set aside the decree and remanded the matter for fresh disposal. Thereafter, the suit was concurrently decreed by the courts, rejecting the plea of adverse possession. 6. Heard learned Senior Counsel Sri.K.K.Chandran Pillai on behalf of the appellants-defendants, Sri.George Mathew the learned counsel for the respondent-plaintiff, and Sri.R.S.Kalkura, the learned counsel for the additional respondents-transferee ## **R.S.A. No.949 of 2003** -: 4 :- pendente lite, on the following substantial question of law:- “ _Is the finding by the Courts on the title of the plaintiffs and on the plea of adverse possession, vitiated by perverse appreciation of evidence ?”_ 7. To prove title and identity, the plaintiff got the property covered under Exts.A1 and A2 identified with the help of a surveyor. Plaint 'A' schedule property was identified to be part of the 3.50 Acres assigned to the plaintiff under Exts.A1 and A2. Though the defendant would take various pleas including a plea that the plaint 'A' schedule property is not included in Ext.A1 and Ext.A2, as DW1, even in the chief-examination he would admit that the plaint 'A' schedule property is part of the 3.50 Acres allotted to the plaintiff under Exts.A1 and A2. 8. The defendants would contend that, since the plaint 'A' schedule property was found to be uncultivable land, in lieu of the said extent another ## **R.S.A. No.949 of 2003** -: 5 :- property bearing plot No.251 was allotted to the plaintiff. Hence the plaintiff does not have title over the plaint 'A' schedule, it is contended. However, no such allotment could be proved. The Revenue Officials have vouched that, going by the records no such allotment has been made in favour of the plaintiff. Mere possession by the plaintiff of some other property cannot lead to an inference that such property is allotted in lieu of the plaint 'A' schedule property. No record of any such proceedings could be brought on record. Therefore, the said contention of the defendants has no basis. 9. Thus the courts were right in holding that the plaint 'A' schedule property is part of the 3.50 Acres assigned to the plaintiff under Exts.A1 and A2 by the Government. 10. Now, the plea of adverse possession is to be analysed. It is the defendants case that, since the plaint 'A' schedule property was uncultivable, the ## **R.S.A. No.949 of 2003** -: 6 :- plaintiff did not take possession of the same. In the year 1968, the first defendant entered into possession of the same. He put up a hut and started residing there. He planted coconut trees and other seasonal crops. In the year 1971, he obtained electricity connection for the building. He used to tap rubber trees for the plaintiff though not as a permanent worker. The 'A' schedule lies demarcated from the remaining property with 'Kayyala' and fencing. These acts were open, hostile and in derogation of the title of the plaintiff. The defendants were in possession since the year 1968, adverse to the interests of the plaintiff, and hence has acquired title by adverse possession, is the contention. 11. While evaluating the plea of adverse possession and the claim of possession by the defendants on independent right, the plaintiff's case regarding the possession of the defendants is also relevant. According to the plaintiff, 3.50 Acres of property, including the plaint 'A' schedule property, was handed over possession ## **R.S.A. No.949 of 2003** -: 7 :- to him by the Government in the year 1962. Since the plaint 'A' schedule property was not fit for rubber plantation, a hut was put up therein. The remaining area was planted with rubber. From the year 1968 onwards, rubber tapping started. The plaintiff is residing far away, at Alwaye. The first defendant was engaged to do the rubber tapping. Initially the coagulation process of the latex obtained from the rubber was done at the house of neighbours. In the year 1968, the plaintiff put up a hut in the 'A' schedule property and started the coagulation process there. The residence of the first defendant was 8 kilometers away. Hence, he was permitted to reside there. After the marriage of the first defendant with the second defendant, they together started residing there. Though the services of the first defendant was terminated in the year 1978, the defendants refused to vacate the 'A' schedule property and the building. The defendants started preparations to put up a new building. This has led to the suit, ## **R.S.A. No.949 of 2003** -: 8 :- contends the plaintiff. 12. What exactly was the nature and character of possession of the properties by the defendants, is evident from Exts.A7 to A20 letters sent by the first defendant to the plaintiff. In the said letters first defendant has stated about the accounts relating to the property, including the income and expenditure. The letters state about the tapping of rubber, the yield, the price obtained by sale of rubber, about the seasonal crops etc. The plaint A schedule property is planted with seasonal crops. The contents of the letters indicate that the plaintiff had reposed full confidence in the first defendant and that the first defendant was managing the entire property for and on behalf of the plaintiff. He was given complete freedom, even for utilisation of the income derived from the property. Though the first defendant would contend that the seasonal crops referred to in the letters do not relate to the plaint schedule property but to some other ## **R.S.A. No.949 of 2003** -: 9 :- property belonging to his father, it cannot be believed. There is no reason why the first defendant should write a letter to the plaintiff informing him about the income from his father’s property. Even according to the defendants, seasonal crops were being raised in the plaint 'A' schedule property. The defendant though contends that he was not the permanent tapper of the plaintiff, has deposed that he had been tapping rubber for the plaintiff. As DW1, he has admitted that he had dealings in respect of plaintiffs rubber sheets, latex etc and that he had accounted for the same to the plaintiff. He has further stated in cross examination that, apart from being a rubber tapper for the plaintiff, he had also worked as “\S¯n-¸p-Imc³” overseer or manager for other works of the plaintiff till the year 1976. At one portion of his cross examination he would say that, in 1978 his brother was the tapper for the plaintiff but that he continued as ## **R.S.A. No.949 of 2003** -: 10 :- the “\S¯n-¸p-Imc³”. 13. Though the defendants would claim that the plaintiff had not taken possession of the plaint schedule property, it is in evidence that it is only after clearing the wild growth and bushes in the property that the cultivable and uncultivable portions within the 3.50 Acres could be identified. Therefore, unless the entire property was taken possession of by the plaintiff, the uncultivable property, which is plaint 'A' schedule property, could not have been identified. As noticed first above, it is a term of the Scheme that, out of the 3.50 Acres, 50 cents could be utilized for putting up of a house and for cultivation of other seasonable crops. Therefore, the authorities were aware of the nature of the property, and it was for the said reason that such a clause was incorporated as a term of the Scheme. The putting up of a building in the 'A' schedule property can only be understood to be one ## **R.S.A. No.949 of 2003** -: 11 :- done by the plaintiff in consonance with the Scheme. The building was necessary for and in connection with the tapping of rubber that is planted in the remaining extent of property. Since the house of the defendant is 8 kms. away from the property, he was permitted to reside there. Here, the evidence of the defence witness DW4 is of significance. He was asked a specific question, ‘Was not the 1[st] defendant residing in the plaint schedule building in his capacity as tapper’, to which he replied in the affirmative. The separation of the rubber estate from the portion of property used for cultivation of seasonal crops cannot be understood to be a feature of possession by separate owners. The mere fact that the rubber estate lies separated from the area where seasonal crops are raised and a building is situated, does not point to separate possession. Plaintiff got possession of the entire property in the year 1962 and planted rubber. Rubber taping started in the year 1968. The defendant was the tapper. The ## **R.S.A. No.949 of 2003** -: 12 :- plaintiff claims that the building in the 'A' schedule property was put up in the year 1968. As PW1 he has stated that the boundary for the 'A' schedule property was also put up in the year 1968. As DW1, the first defendant has admitted that he came to the plaint schedule property for the first time only in the year 1968. Therefore, his coming into possession could only be under the plaintiff. 14. Now regarding the assessment of the building and the electricity connection in the name of the first defendant, Ext.B1 the building tax assessment register is relied on to contend that since 1968 the building is assessed in the name of the defendant. However, it has come out from the evidence of PW10 the Panchayat Secretary that, the entries from page 137 onwards were entered as a supplementary list during the period 1972- 73. Even if the entry was caused to be made in the year 1972, the suit is within time. The building was assessed for tax only from the year 1973. Electricity connection ## **R.S.A. No.949 of 2003** -: 13 :- was obtained thereafter. Admittedly the plaintiff is residing far away at Alwaye. The defendants were residing in the building. He was managing the affairs on behalf of the plaintiff. The fact that the first defendant got the building assessed in his name and got electricity connection in his name, by itself, does not clothe any right on him. Obviously, he was taking advantage of the confidence reposed on him by the plaintiff-the owner of the property. 15. Referring to the plaint averments and the evidence on record, the learned Senior Counsel for the appellant would contend that, the cause of action as pleaded is disproved and hence the suit could not be decreed. The suit being one for recovery of possession on the strength of title, once the title of the plaintiff is proved, unless the defendants prove a better title or that the right of the plaintiff is lost by adverse possession, the plaintiff is entitled for a decree. ## **R.S.A. No.949 of 2003** -: 14 :- 16. The learned Senior Counsel for the appellant would contend that, in lieu of the uncultivable portion from out of the 3.50 Acres allotted to the plaintiff, the plaintiff was allotted possession of another plot viz. Plot No.251 which he had taken possession of and is under his cultivation. The appellants rely on Ext.B9, the directory published by the Rubber Board regarding holdings, to prove that the plaintiff holds yet another plot. The authenticity of Ext. B9 could not be vouched even by DW2, the development officer. I have already noticed that there is no evidence to find that there has been any such allotment by the authorities as contended by the defendants. The mere possession of some other property by the plaintiff would not in any manner advance the case of the defendants unless it is shown that, such holding is in lieu of the 'A' schedule property. There is absolutely no evidence in the said regard. ## **R.S.A. No.949 of 2003** -: 15 :- 17. Alleging that another property namely, plot No.251 was assigned to him and that had been alienated by him, the appellant has filed applications as IA Nos.1/2022, 2/2022 and 3/2022 seeking leave to implead the alleged assignees, deliver interrogatories with regard to the said conveyance; to produce additional documents with regard to the said conveyance. Since there is no material to show assignment of any property to the plaintiff in lieu of the plaint 'A' schedule property, the said aspects are totally irrelevant and alien to the present proceedings. The said applications are accordingly dismissed. 18. The learned senior counsel would stress on the fact that the plaintiff admits that apart from the plaint schedule property, on the north-western portion of the entire property one Ouseph is residing and that it is not in accordance with the scheme. PW1 has stated that such occupation commenced after the suit. At any rate, that will not in any manner help the defendant in ## **R.S.A. No.949 of 2003** -: 16 :- his plea of adverse possession. 19. As noticed above, Exts.A7 to A20 letters coupled with the circumstances involved in the case, cuts at the root of the defendants' plea of adverse possession. 20. The entire evidence on record was considered exhaustively by the trial court as well as by the first appellate court. The evidence was appreciated in the background of the facts. The courts concurrently negatived the plea of adverse possession. The said finding is on facts. Adverse possession is a finding based on facts and evidence or a mixed question of law and facts. It does not give rise to any substantial question of law. _[See_ _**Lakshmi v. Lakshmanan (1989 KHC 506)** ;_ _**Basappa (dead) by Lrs. v. Puttappa (dead) by Lrs. (2000 KHC 1749); Syeda Rahimunnisa v. Malan Bi (dead) by Lrs. And Anr. (2016) 10 SCC 315; Narendra and Ors. v. Ajabrao S/o Narayan Katare (dead) through legal representatives (2018) 11 SCC 564; Nazir Mohamed v. J. Kamala and Ors (2020) 19 SCC 57]**_ . Even before this Court, the ## **R.S.A. No.949 of 2003** **==> picture [40 x 9] intentionally omitted <==** entire evidence on record was looked into exhaustively. This Court finds that, the conclusion arrived at by the courts is a possible one on the materials. Even assuming that another view of the matter is possible, that does not enable this Court to interfere with the finding in exercise of the jurisdiction under Section 100 of the Code of Civil Procedure. _**(** See_ _**Satya Gupta v. Brijesh Kumar (1998) 6 SCC 423; Lisamma Antony and Anr. v. Karthiyayani & Anr. (2015) 11 SCC 782).**_ Resultantly, the Regular Second Appeal fails and is accordingly dismissed. kns/- Sd/- **SATHISH NINAN JUDGE** P.S. to Judge //True Copy//