Thayyil Sreemathi v. Alanjeri Rajeswari and Thazhatheyil Dasan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 13[TH] DAY OF SEPTEMBER 2021/22ND BHADRA, 1943** ## **RSA NO.1166 OF 2019** Against the judgment and decree dated 30.3.2019 in A.S.No.1/2018 on the file of the third Additional District Court, Kozhikode which arose out of the judgment and decree dated 26.9.2017 in O.S.No.337/2001 on the file of the Principal Munsiff's Court-II, Kozhikode ## **APPELLANT/APPELLANT/DEFENDANT No.2:** THAYYIL SREEMATHI, AGED 73 YEARS, W/O.LATE VELAYUDHAN, MUTHALAKANDI PARAMBA, OLAVANNA AMSOM AND DESOM, KOZHIKODE, PIN-673 019. BY ADVS. SRI.M.VIVEK RABINDRANATH SRI.V.T.MADHAVANUNNI ## **RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANT No.1:** 1 ALANJERI RAJESWARI, AGED 46 YEARS, W/O.MURALEEDHARAN, KALLAI HOUSE, THATTARAKKULAM PARAMBA, CHERUVANOOR VILLAGE, OLAVANNA AMSOM AND DESOM, NALLALAM (PO), KOZHIKODE-673 027. 2 THAZHATHEYIL DASAN, AGED 73 YEARS, S/O.LATE AMMUKUTTY, MUTHALAKANDI PARAMBA, OLAVANNA AMSOM AND DESOM, OLAVANNA(PO), KOZHIKODE-673 019. R1 BY ADVS. SRI.MUNEER AHMED SRI.MUDASSER AHMED **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON 13.09.2021 DELIVERED THE FOLLOWING:** R.S.A.No.1166 of 2019 **==> picture [22 x 8] intentionally omitted <==** ## **JUDGMENT** This Regular Second Appeal is directed against the judgment and decree dated 30.3.2019 in A.S.No.1/2018 on the file of the third Additional District Court, Kozhikode (hereinafter referred to as 'the first appellate court') confirming the judgment and decree dated 26.9.2017 in O.S.No.337/2001 on the file of the Principal Munsiff's Court-II, Kozhikode (hereinafter referred to as 'the trial court'). 2. The appellant is the 2[nd] defendant before the trial court. The 1[st] respondent is the plaintiff and the 2[nd] respondent is the 1[st] defendant therein. The suit was filed for recovery of possession and consequential permanent prohibitory injunction. For brevity, the parties are hereinafter referred to as referred in the original suit unless otherwise stated. R.S.A.No.1166 of 2019 **==> picture [22 x 8] intentionally omitted <==** 3. The averments in the plaint in brief are as follows:- Plaint A schedule property having an extent of 61 cents of land was set apart to the share of the plaintiff by virtue of a partition deed executed on 17.9.1981. The plaint A schedule property belongs to the plaintiff. The plaint B and C schedule properties belong to the 1[st] and 2[nd] defendants respectively which they admittedly obtained as 'kudikidappu' within the A schedule property. The plaintiff has been in possession and enjoyment of plaint A schedule property excluding the plaint B and C schedule properties. After obtaining 'kudikidappu' rights in favour of the defendants 1 and 2, they have made several attempts to trespass into the plaint A schedule property and are trying to annex a portion of the same. There are no clear cut R.S.A.No.1166 of 2019 ..4.. boundaries separating the properties. There is a 2 feet wide way through the plaint A schedule property for the ingress and egress to the property of the 1[st] defendant. The way to the property of the 2[nd] defendant is only 4 feet wide which is through the northern boundary of the plaint A schedule property. The defendants are attempting to widen their respective pathways. Hence, a suit was filed for permanent prohibitory injunction restraining the defendants from trespassing into the plaint A schedule property. 4. A commission was taken out during the pendency of the proceedings and based on the commission report the plaint was amended. The commissioner reported that the 2[nd] respondent who is the 1[st] defendant in the suit is in wrongful possession R.S.A.No.1166 of 2019 **==> picture [22 x 8] intentionally omitted <==** of 2 cents of plot EFGHA marked in the commission report and shown as D schedule in the plaint and the 2[nd] defendant is in wrongful possession of 2 cents of plot marked as UVWXY and shown as E schedule in the plaint. The prayer in the plaint was amended claiming recovery of possession of the plaint D and E schedule properties. 5. There is no dispute between the plaintiff and the 1[st] defendant. However, the defendants filed written statement and additional written statement raising the following contentions:- 6. The 2[nd] defendant filed O.A.No.1409/1970 before the Land Tribunal for 'kudikidappu' right. During the pendency of the original proceedings, the matter was settled in the presence of mediators. Thereby the plaintiff's father Alancherry Gopi R.S.A.No.1166 of 2019 **==> picture [22 x 8] intentionally omitted <==** relinquished 6.85 cents of land appurtenant to kudikidappu house and a pathway having a length of 24 feet and a width of 6 feet in favour of the 2[nd] defendant in the year 1970. As per the scheme of the Kerala Land Reforms Act (hereinafter referred to as 'the KLR Act'), the 2[nd] defendant was entitled to get 10 cents as 'kudikidappu'. The plaintiff, who is the daughter of the second wife of Alancherry Gopi, acquired right in the plaint A schedule property excluding the property of the 2[nd] defendant only on his death. Subsequent to the death of Alancherry Gopi, the plaintiff attempted to construct a compound wall encroaching into the property of the 2[nd] defendant and also attempted to reduce the width of the pathway leading to the property of the 2[nd] defendant. The plaintiff is not having possession of the entire plaint A R.S.A.No.1166 of 2019 **==> picture [22 x 8] intentionally omitted <==** schedule property as claimed by her in the plaint. Even if the plaintiff is having any right over the property the same is lost by adverse possession and limitation. 7. The trial court, on the side of the plaintiff, examined PW1 and marked Exts.A1 to A4. On the side of the defendants, DWs.1 and 2 were examined and marked Ext.B1. The Advocate Commissioner was examined as CW1 and marked Exts.C1 to C3. 8. After having heard both sides, the trial court decreed the suit in part permitting the plaintiff to recover possession of plaint E schedule property from the 2[nd] defendant. The 2[nd] defendant was also restrained from trespassing into the property in possession of the plaintiff in accordance with Ext.C2 plan except using 4 feet wide way through the R.S.A.No.1166 of 2019 **==> picture [22 x 8] intentionally omitted <==** northern extremity of the property in the possession of the plaintiff as noted by the commissioner in Ext.C2 plan by way of a decree of permanent prohibitory injunction. The 2[nd] defendant preferred A.S.No.1/2018 before the first appellate court. As against the dismissal of the suit against the 1[st] defendant the plaintiff filed A.S.No.170/2017 before the very same court. The first appellate court heard the appeals jointly. By the common judgment and decree dated 30.3.2019, the first appellate court dismissed both the appeals. Hence the 2[nd] defendant preferred this second appeal. 9. Heard the learned counsel for the appellant. 10. The learned counsel for the appellant contended that the suit for recovery of possession of plaint E schedule property is not maintainable in the R.S.A.No.1166 of 2019 **==> picture [22 x 8] intentionally omitted <==** absence of any pleading by the plaintiff regarding the date of dispossession of the plaintiff from the said property which has resulted the suit without any cause of action. According to the learned counsel, the 2[nd] defendant has been in possession of the plaint E schedule property since 1970 as adverse to the real owner. According to the learned counsel, the plaintiff suppressed the material fact of dispossession to get over the bar of limitation under Section 65 of the Limitation Act. 11. The 2[nd] defendant is a 'kudikidappukari' over the disputed property. Ext.A3 is the copy of the order passed by the Land Tribunal, Kozhikode in O.A.No.1409/1970. By virtue of Ext.A3, the 2[nd] defendant obtained 'kudikidappu' right over the C schedule property having an extent of 5 cents of land. R.S.A.No.1166 of 2019 **==> picture [28 x 8] intentionally omitted <==** The 2[nd] defendant has no case that the excess property in her possession belongs to some other person other than the plaintiff. Ext.C2 is the plan prepared during the trial. Blue dotted portion therein is the excess property found with the 2[nd] defendant which is scheduled as E schedule. 12. The plaint A schedule property originally belonged to Alancherry Gopi who is the father of the plaintiff. The property devolved upon the plaintiff by virtue of Ext.A1 partition deed No.4343/1981. The case of the plaintiff is that excess 2 cents of land is included in Ext.A1 and covered in A schedule property. The trial court and the first appellate court concurrently held that the blue dotted area identified in Ext.C2 plan as excess land in the possession of the 2[nd] defendant is found abutting into the plaintiff's R.S.A.No.1166 of 2019 **==> picture [28 x 8] intentionally omitted <==** property in Re.Sy.No.5/3. There is no case for the defendant that the property around E schedule property was sold out by the plaintiff. The boundary of the E schedule property is also within the A schedule property. 13. The crucial question which arises for consideration in this appeal is as to what is the Scheme of the Act in regard to the decision as to the status of a person as 'kudikidappukaran', subsequent to the decision of the competent authority in this regard. Admittedly, the 2[nd] defendant obtained 'kudikidappu' right in respect of 5 cents of land as per Ext.A3 pattayam issued by the Land Tribunal, Kozhikode pursuant to a compromise entered into between the parties during the pendency of original proceedings although the 2[nd] defendant was entitled to get more as R.S.A.No.1166 of 2019 **==> picture [28 x 8] intentionally omitted <==** per Section 80A and 80B of the Kerala Land Reforms Act. What was granted by the Tribunal was only for an area of 5 cents of land as per Ext.A3 pattayam. The extent of plot UVWXY is 2 cents and the extent of remaining property in the possession of the 2[nd] defendant is 5 cents. UVWXY is the plaint E schedule property. In view of the above circumstances, the trial court and the first appellate court concurrently held that the plaintiff has proved title over plaint E schedule property, i.e., UVWXY and the 2[nd] defendant has failed to prove her title over the same as part of the kudikidappu right obtained by her by virtue of Ext.A3. 14. The 2[nd] defendant was only a kudikidappukari of the property. The plaintiff obtained property by virtue of Ext.A1 partition deed subsequent R.S.A.No.1166 of 2019 **==> picture [28 x 8] intentionally omitted <==** to the death of Alancherry Gopi who is none other than her father. The 2[nd] defendant claims excess area to a larger extent than 5 cents assigned to her by virtue of pattayam issued by the Land Tribunal. The pattayam would irresistibly lead to the inference that the kudikidappu portion was confined to 5 cents only. The pattayam has become final and there was no challenge to the pattayam issued. The commissioner located the property as per the pattayam and correctly carved out the excess area in the possession of the 2[nd] defendant. The extent of land which the kudikidappukaran is entitled to purchase as per the scheme of the KLR Act is 3 cents in a city or major Municipality; or 5 cents in any other Municipality; or 10 cents in a Panchayat area or township. Since the property is situated within the Panchayat area the 2[nd] R.S.A.No.1166 of 2019 **==> picture [28 x 8] intentionally omitted <==** defendant might be under the impression that she is entitled to get at least 10 cents as kudikidappu right. However, as indicated earlier, a pattayam was issued for 5 cents based on consensus by the Land Tribunal. The pattayam issued by the Land Tribunal is conclusive regarding the right, title and interest of the 2[nd] defendant covered by the pattayam. 15. The source and genesis of possession of the 2[nd] defendant is based on her kudikidappu right over the property. This is an independent right claimed by the 2[nd] defendant. Accordingly, she obtained 5 cents of land from the competent authority as kudikidappu right. For her convenience, she extended her right and possession over the property more than the kudikidappu and claimed adverse possession over the excess land. Relying on **Challa Srinivasa Rao,** R.S.A.No.1166 of 2019 ..15.. **Krishna District & another v. Challa Subbarao and 4 others, Krishna District** [(2012) 3 ALT 148] the learned counsel for the appellant contended that in a suit for recovery of possession, it is fundamental that the plaintiff must state the factum of dispossession from the property. According to the learned counsel, though under the Limitation Act, 1908, it was obligatory on the part of the plaintiff to state the date on which he was dispossessed, to know whether the suit was filed within the period of limitation. Thus, it is contended that unless the plaintiff states that he has been dispossessed, the very basis for institution of the suit becomes shaky. The facts and circumstances in **Challa Srinivasa Rao's case** is totally different from this case. The said suit was filed for the relief of possession of the suit R.S.A.No.1166 of 2019 **==> picture [28 x 8] intentionally omitted <==** property in which the defendants contended title to the suit property by way of a gift. The suit was concurrently decreed. The second appeal filed by the defendants/appellants were also dismissed. In the said case in paragraph 15 of the judgment it is clearly held that whether a suit for recovery of possession can be instituted without stating the factum of dispossession and whether such a suit can be decreed at all does not arise for consideration. Even assuming that date of dispossession is immaterial in this case, the mere possession of the suit property for a very long time is not sufficient to hold that the 2[nd] defendant has been in actual, open, notorious, hostile, continuous and exclusive possession over the statutory period to claim adverse possession over the excess land. It is very clear that the 2[nd] defendant was inducted into the R.S.A.No.1166 of 2019 **==> picture [28 x 8] intentionally omitted <==** plaint schedule property by the permission granted by the then landlord. Later, by virtue of the provisions under the KLR Act she was conferred with the kudikidappu right in respect of 5 cents of land. Merely because she continued in possession of certain portion of land in excess of the kudikidappu right, she is not justified in contending that she is entitled to get title over the property by adverse possession. When a person was inducted into the property by way of permission granted, it was on the part of the party in possession to adduce evidence to show that she was in possession of the property adverse to the true owner. Mere possession however long does not mean that it is adverse to the true owner. In view of the above circumstances, the two courts below concurrently held that the plea of adverse possession R.S.A.No.1166 of 2019 **==> picture [28 x 8] intentionally omitted <==** is unsustainable. A person in possession of a property by way of permission granted cannot contend that it is obligatory on the part of the plaintiff to plea the date of dispossession. Such a plea is not available to the party who has been in possession by way of permission granted. 16. A second appeal is not a matter of right. A second appeal only lies on a substantial question of law. It was not open to the 2[nd] defendant to re-agitate facts or to call upon the High Court to re-analyse or re-appreciate evidence in a second appeal. Concurrent findings are sought to be set aside in this appeal. The findings of the trial court and the first appellate court are based on cogent and binding documents of title including the commission report and plan prepared during the pendency of the proceedings demarcating R.S.A.No.1166 of 2019 **==> picture [28 x 8] intentionally omitted <==** the property sought to be recovered from the 2[nd] defendant. No substantial question of law is urged before this Court. Hence, this second appeal cannot be entertained as a matter of course. Resultantly, this Regular Second Appeal is dismissed. There will be no order as to costs. Pending applications, if any, stand closed. **Sd/N.ANIL KUMAR, JUDGE** skj