Umesh Paul, Dushyathanan Paul and Moly Paul v. Leela @ Leena, Arun, Amith, John Mathai, Joseph Mathew (Baby), Money Mathew, Leelamma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 4TH DAY OF OCTOBER 2013/12TH ASWINA, 1935** ## **RSA.No. 990 of 2013 (A)** **-----------------------** **AGAINST THE JUDGMENT IN AS 33/2011 of III ADDITIONAL DISTRICT COURT, ERNAKULAM DATED 08-04-2013** **AGAINST THE JUDGMENT IN OS 115/2003 of SUB COURT, MUVATTUPUZHA DATED 30-11-2010** ## **APPELLANTS/APPELLANTS/DEFENDANTS 6 TO 8:** **------------------------------------------------------------------------** ## **1. UMESH PAUL** - **S/O.LATE PAUL, PULAKKAVIL HOUSE, PAMBAKUDA KARA PAMBAKUDA P.O, ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK ERNAKULAM DISTRICT.** ## **2. DUSHYANTHAN PAUL** **S/O.LATE PAUL, LATE PAUL, PULAKKAVIL HOUSE PAMBAKUDA KARA, PAMBAKUDA P.O, ONAKKOOR VILLAGE MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** **3. MOLY PAUL** - **W/O.LATE PAUL, PULAKKAVIL HOUSE, PAMBAKUDA KARA PAMBAKUDA P.O, ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK ERNAKULAM DISTRICT.** **BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS AND DEFENDANTS NO.1 TO 4:** **-----------------------------------------------------------------------------------------------------------** ## **1. LEELA @ LEENA** - **W/O.LATE ELDHO MATHEW, PULAKKAVIL HOUSE PAMBAKUDA KARA, PAMBAKUDA P.O, ONAKKOOR VILLAGE MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** ## **2. ARUN** **S/O.LATE ELDHO MATHEW, PULAKKAVIL HOUSE PAMBAKUDA KARA, PAMBAKUDA P.O, ONAKKOOR VILLAGE MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** **...2** **-2-** ## **RSA.No. 990 of 2013 (A)** ## **3. AMITH** - **S/O.LATE ELDHO MATHEW, PULAKKAVIL HOUSE PAMBAKUDA KARA, PAMBAKUDA P.O, ONAKKOOR VILLAGE MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** ## **4. JOHN MATHAI** - **S/O.LATE MATHAI, PULAKKAVIL HOUSE, PAMBAKUDA KARA PAMBAKUDA P.O, ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK ERNAKULAM DISTRICT.** **5. JOSEPH MATHEW @ BABY S/O.LATE MATHAI, PULAKKAVIL HOUSE, PAMBAKUDA KARA PAMBAKUDA P.O, ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK ERNAKULAM DISTRICT.** **6. MONEY MATHEW (MONCY MATHEW)** - **S/O.LATE MATHAI, PULAKKAVIL HOUSE, PAMBAKUDA KARA PAMBAKUDA P.O, ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK ERNAKULAM DISTRICT.** ## **7. LEELAMMA** - **W/O.KORATH, PULINATTU HOUSE, KEEZHILLAM KARA KEEZHILLAM POST, RAYAMANGALAM VILLAGE KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** ## **C.R.** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ R.S.A. No. 990 of 2013 -----------------------------------------Dated this the 4[th] day of October, 2013 ## **J U D G M E N T** Defendants 6 to 8 in a suit for partition are the appellants. The 1[st] plaintiff is the widow of Eldo Mathew. Plaintiffs 2 and 3 are their children. Defendants 1 to 3 are the brothers of Eldo Mathew and D4 is their sister. D5 is the Uncle of Eldo Mathew. The plaint schedule property originally belonged to Mathai and his brother Poulose-the 5[th] defendant, obtained as per a partition deed of 1959. Mathai died intestate on 23.9.1977. His mother died intestate on 4.6.1982. His wife died intestate on 02.02.2002. Therefore, it is contended that the 5[th] defendant, who is the co-owner, is entitled to get half share in the suit property. The other plaintiffs and defendants 1 to 4 are entitled to the other half share. Hence, the plaintiffs contended that they ## **R.S.A. No.990/2013** **-2-** are entitled to get 1/10 share in the property. D1 and D3 remained exparte. D2 and D4 filed written statement supporting the plaint averments. D5 died subsequently. His legal heirs were impleaded as D6 to D8. They contended that plaint item no.1 is not liable to be partitioned as it was in the absolute possession of Paulose alias Paul – the brother of Mathai. He alone was in possession of the property and after the death of Paulose alias Paul, defendants 6 to 8 are in possession of the same. Thus, defendants 6 to 8, who are appellants herein contended that the right of other sharers was lost by adverse possession and so they are not entitled to get any share in plaint item no.1. 2. Before the trial court Exhibit A1 was marked. DW1 was examined on the side of the defendants and Exhibits B1 to B14 were marked. The trial court found that the appellants failed to prove that they were in possession ## **R.S.A. No.990/2013** **-3-** of plaint item no.1 in open assertion of hostile title to the knowledge of other co-owners and hence the plea that item no.1 is not liable to be partitioned, was turned down. 3. The appellate court had a re-appraisal of the entire evidence and concurred with the view taken by the trial court. Since the share of the other co-owners was not specifically mentioned, the appellate court modified the preliminary decree allotting the shares of other co-owners also. 4. Learned counsel for the appellants herein vehemently argued that the courts below went wrong in negativing the plea of adverse possession set up by them. There is evidence in abundance to show that the deceased Paulose alone was in possession of plaint item no.1 and he alone was taking income from plaint item no.1. It is further submitted that admittedly there are shop rooms which were rented out but the rent was collected by deceased Paulose ## **R.S.A. No.990/2013** **-4-** only, which would sufficiently indicate that there was non sharing of income by other sharers for a continuous period of more than 12 years and as such it was an act of asserting hostile title against other sharers. Thus according to the learned counsel, the view taken by the courts below is palpably unsound. 5. Following are the questions of law seen formulated in the appeal memorandum: - i. Have not the appellants legally succeeded in proving their title in respect of plaint schedule item no.1 property? - ii. Have not the appellants legally succeeded in proving their contention regarding adverse possession and limitation, coupled with ouster, in respect of plaint schedule item no.1 property? iii. Have the courts below committed legal perversity in the analysis of the evidence **-5-** ## **R.S.A. No.990/2013** available in the case and consequently coming to proper conclusions? iv. Are the judgments and decrees passed by the courts below legally sustainable? It can be seen that there is no substantial question of law as such. Whether the appellants have succeeded in proving their contention would depend upon the pleadings and evidence adduced by the parties. There is no legal perversity or infirmity in the appreciation of evidence. 6. It is vehemently argued by the learned counsel for the appellants that the parties had entered into a partition deed in 1989 as evidenced by Ext.B7, where it was specifically mentioned that apart from the property shown therein, no other property was available for partition, which also is a clear indicia to hold that plaint item no.1 was in the exclusive possession of deceased Paulose and that was why that item was not partitioned among the parties. Projecting that ground coupled with the fact that he was collecting rent ## **R.S.A. No.990/2013** **-6-** from the tenant, the learned counsel for the appellants submits that the right of the plaintiffs and supporting defendants is lost by ouster, adverse possession and limitation. But it is pertinent to note that though a simple plea of adverse possession is discernible from the written statement, there is no specific plea of ouster. In paragraph 3 of the written statement, it was stated that the predecessor in interest of the plaintiff had no title to item no.1 and it was stated that deceased Paulose (who is also known as Paul) was in possession of the property and was taking income therefrom. It was further stated that when a neighbouring owner attempted to trespass into item no.1, a suit was filed and those cases were conducted by deceased Paulose and on the death of Paulose alias Paul the right over the property devolved upon defendants 6 to 8. 7. In paragraph 4 it was stated that the plaintiffs or their predecessors were not in possession of plaint item **R.S.A. No.990/2013** **-7-** no.1. It was also stated that the predecessor in interest of the present appellants was in continuous possession of the property and the said possession was peaceful and open and so the plaintiffs right is lost by adverse possession. There is also an averment in paragraph 5 of the written statement that item no.1 was in the possession of the appellants and their predecessor and that the room situated in that building was rented out and the rent was collected by the predecessor of those appellants. The aforesaid contentions are not even sufficient to set up a plea of adverse possession and limitation so as to prescribe title against a stranger. Worse would be the position when the plea of adverse possession is set up against a co-owner in which case there must be a specific plea of ouster also. Since when the appellant's predecessor had started to assert hostile title against the co-owners and what was the positive act which was done by deceased Paulose to make known to **-8-** ## **R.S.A. No.990/2013** the other sharers that he was asserting hostile title so as to exclude the other sharers from claiming share, are conspicuously absent. It was stated by the appellants that there is pleading in paragraph 5 of the written statement that the share of rent in respect of a rented shop room was collected by the plaintiffs whereas they did not collect the share of income from the shop room situated in item no.1. There is no acceptable evidence on that point. Even for sustaining a plea that the appellants prescribed title by adverse possession and limitation, there must be specific pleading. 8. It was 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 clearly plead and establish all ## **R.S.A. No.990/2013** **-9-** 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”. 9. 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 windfall for a dishonest person who had **-10-** ## **R.S.A. No.990/2013** 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 place premium on 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”. 10. What have been stated above is only a prerequisite for setting up a claim of adverse possession against a stranger. Evidence is not available even to sustain ## **R.S.A. No.990/2013** **-11-** such a plea; if so, how could the appellants sustain their plea of ouster of the other co-owners so as to claim absolute title against them to deny the claim for partition, is the pertinent question which has to be answered by the appellants. 11. It can not be said, based on the evidence on record, that the respondents had knowledge of the ouster or adverse possession. In other words, there is nothing on record to show that the respondents were put to knowledge of the denial of title so as to prevent the running of time against them. Possession by one co-owner is not by itself adverse to other co-owners. It is the settled position that possession by one co-owner is presumed to be the possession by all the co-owners unless it is established that the possession of the co-owner is in denial of title of other co-owners and such possession is hostile and intended to exclude other sharers. It is well settled that ouster is an ## **R.S.A. No.990/2013** **-12-** unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them. Unless exclusion and ouster are completed and approved one co-owner cannot sustain his plea that the right of other co-owner is lost by ouster or adverse possession. 12. See the decisions in **Gur Narain Das and Another V. Gur Tahal Das and Others (AIR 1952 SC 225), Syed Shah Gulam Ghouse Mohiuddin and others v. Syed Shah Ahmad Mohiuddin kamisul qadri (dead) by his legal representatives and others - AIR 1971 SC 2184.** It was also held by the Hon'ble Supreme Court in **Karbalai Begum v. Mohd.Sayeed and Another - AIR 1981 SC 77** that mere non participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. The co-owner in possession should ## **R.S.A. No.990/2013** **-13-** be treated as a constructive trustee on behalf of the other sharer. The fact that this property was not included in the earlier partition deed is not a reason to say that the right of the plaintiff is lost by ouster or adverse possession. Possession, how so ever long it may be, will not amount to exclusive possession since the possession by a co-owner is only of the nature of constructive trustee and so his possession in law should be the possession by the plaintiff. 13. It was held by this court in **Madhavi Amma v. Appu Nair - ILR 1986(1) Ker.391** : “Under law the possession of one coowner, is presumed to be on behalf of all the co-owners, Because of this presumption, the law requires, to constitute ouster of a co-owner, it is not enough to establish that the other coowners have been in exclusive possession and enjoyment of the properties; it should also be established that the co-owners in possession have **-14-** ## **R.S.A. No.990/2013** been openly repudiating or denying the title of the other co-owner to his knowledge. Such hostile assertion of title should be established by the co-owners who want to prove ouster of the other co-owners for whose benefit also, they are holding the properties. But this does not mean that the co-owner who has been ousted, should be told specifically of the ouster by the other co-owners. 14. It is not a case where a co-sharer transferred the property in whole in favour of a stranger asserting exclusive title in himself to the knowledge of other co-sharers. Here, the main point that has been projected by the appellants is that their predecessor Poulose was collecting the rent but the share of the rent was not paid to the other co-sharers who are the predecessors of the plaintiff. That alone is not sufficient to hold that the appellant's predecessor was holding the property, in denial of the title of the predecessor of the respondent. There is no specific pleading regarding **-15-** ## **R.S.A. No.990/2013** the ouster nor is there any acceptable evidence to sustain such a plea. 15. It was held by the Hon'ble Supreme Court in **Darshan Siungh and others v. Gujjar Singh (dead) by L.Rs.and others - AIR 2002 SC 606-** In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue record in the name of one cosharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied. Same is the view taken by the Hon'ble Apex court in **Md.Mohammed Ali (dead) by Lrs.v. Jagadish Kalita and Others - 2004(1) SCC 271.** **-16-** ## **R.S.A. No.990/2013** 16. In the light of the aforementioned authoritative pronouncements of the Hon'ble Supreme Court, I have no hesitation to hold that the plea of ouster and adverse possession set up by the appellants is devoid of any merit. In the result, this Regular Second Appeal is dismissed. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj/das