V. Suresh and others v. Helan Mary Abraham and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945 RFA NO. 39 OF 2023** **AGAINST THE JUDGMENT AND DECREE DATED 30.11.2022 IN O.S.NO.187 OF 2012 OF SUB COURT, ATTINGAL APPELLANTS/DEFENDANTS 2 TO 8 AND 10:** 1 V. SURESH, AGED 55 YEARS, S/O. SARASWATHY AMMAL, RESIDING AT M.P 737-A, MANALATHU THOPPIL PUTHEN VEEDU, VEILOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN- 695302. 2 V. SULABHA, AGED 55 YEARS, D/O. SARASWATHY AMMAL, RESIDING AT M.P 737-A, MANALATHU THOPPIL PUTHEN VEEDU, VEILOOR VILLAGE, CHIRAYINKEEZHU TALUK THIRUVANANTHAPURAM DISTRICT, PIN - 695302 3 S. RADHA AGED 59 YEARS, D/O. SARASWATHY AMMAL, RESIDING AT M.P 737-A, MANALATHU THOPPIL PUTHEN VEEDU, VEILOOR VILLAGE, CHIRAYJNKEEZHU TALUK THIRUVANANTHAPURAM DISTRICT, PIN - 695302 4 KRISHNAN CHETTIAR AGED 69 YEARS, S/O. SARASWATHY AMMAL, RESIDING AT THOPPIL PUTHEN VEEDU, MANAKKADU, MURUKKUMPUZHA, VEILOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695302 5 LEELAMMAL AGED 67 YEARS, D/O. SARASWATHY AMMAL, RESIDING AT THOPPIL PUTHEN VEEDU, MANAKKADU, MURUKKUMPUZHA, VEILOOR VILLAGE, CHIRAYINKEEZHU TALUK THIRUVANANTHAPURAM DISTRICT, PIN - 695302 6 SUBHADRA AGED 65 YEARS, D/O. SARASWATHY AMMAL, RESIDING AT THOPPIL PUTHEN VEEDU, MANAKKADU, MURUKKUMPUZHA,VEILOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695302 R.F.A.No.39 of 2023 -: 2 :- 7 BABY AGED 63 YEARS, D/O. SARASWATHY AMMAL, RESIDING AT THOPPIL PUTHEN VEEDU, MANAKKADU, MURUKKUMPUZHA, VEILOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695302 8 AMBILY AGED 57 YEARS, D/O. SARASWATHY AMMAL RESIDING AT THOPPIL PUTHEN VEEDU, MANAKKADU, MURUKKUMPUZHA, VEILOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695302 BY ADVS.GOPAKUMAR R.THALIYAL N.KUTTAPPAN THAZHASSERY R.B.BALACHANDRAN ## **RESPONDENTS/PLAINTIFFS 2 TO 4 AND 9TH DEFENDANT:** 1 HELAN MARY ABRAHAM AGED 72 YEARS, D/O. LATE LANCYLAD GOMEZ, RESIDING AT TRIO COTTAGE, HOUSE NO. 4, NEAR FIRE STATION ROAD, KOLLAM, PIN- 691019, 2 JEAN GOMEZ, AGED 67 YEARS, D/O. LATE LANCYLAD GOMEZ, RESIDING AT TRIO COTTAGE, HOUSE NO. 4, NEAR FIRE STATION ROAD, KOLLAM, PIN - 691019 3 ANU PIUS, AGED 62 YEARS, D/O. LATE LANCYLAD GOMEZ, RESIDING AT KRIPA, TC 30/1892(1), PALLIMUKKU, PETTA, THIRUVANANTHAPURAM - 695024 4 VIJAYAN CHETTIAR AGED 61 YEARS, S/O. VELAYUDHAN CHETTIAR, RESIDING AT THOPPIL PUTHEN VEEDU, MANAKKADU, MURUKKUMPUZHA, VEILOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT - 695302 BY ADV.HARISH GOPINATH ADV.AMRITHA SOMASUNDARAN FOR R1 TO R3 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 24.01.2024, THE COURT ON 25.01.2024 DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A.No.39 of 2023** **= = = = = = = = = = = = = = = = = = Dated this the 25[th] day of January, 2024** ## **JUDGMENT** The decree in a suit for recovery of possession on the strength of title is under challenge by defendants 2 to 8 and 10. Defendants 2 to 10 are the legal heirs of the deceased 1[st] defendant. 2. The plaint schedule property is 24 cents in Sy.No.2065 of Veiloor Village, out of which, 18 cents is comprised in Sy.No.2065 and 6 cents in Sy.No.2065/1/13. 3. The property originally belonged to the plaintiff's grandfather. He executed a mortgage in favour of one Kochappi. The mortgage right was subsequently assigned to one Appavu Chettiyar and Murugan Chettiyar. As per Partition Deed No.1806/1950, plaintiff's father obtained title to the property. In the year 1968, the plaintiff's father filed O.S.No.412 of 1968 before the Munsiff's Court, Attingal for R.F.A.No.39 of 2023 -: 2 :- redemption of mortgage. Exts.A30 and 31 are the judgment and decree therein. In the execution proceedings, the mother of the 1[st] defendant filed a claim petition. It was dismissed by the execution court. The order was affirmed in CRP No.477 of 1990 which was preferred by her legal heirs including the 1stt defendant. Thereafter,the daughter of the 1[st] defendant filed O.S.No.79 of 1991 to obstruct the execution of the decree. Though originally, there was an interim order of injunction, the same was later vacated. The decree was executed and the property delivered over. Exts.A28 and A29 are the delivery reports. Thereafter, O.S.No.79 of 1991 was dismissed. 4. After getting delivery of the property, the plaintiff's father gifted the property to the plaintiff under Ext.A1 Gift Deed. In the year 1994, the defendants again trespassed into the plaint schedule property. The 1[st] defendant approached the Land Tribunal, R.F.A.No.39 of 2023 -: 3 :- Thiruvananthapuram, raising claim of 'Kudikidappu' in O.A.No.148 of 1994. As per Ext.A14 order, the Land Tribunal dismissed the OA on 19.01.1995. 5. Immediately the 1[st] defendant filed O.S.No.47 of 1995, claiming title over the possession of the property. The plaintiff approached this Court in O.P.No.3746 of 1995 alleging that the suit is an abuse of process. This Court directed the maintainability of the suit to be considered. Thereafter, the suit was dismissed as not pressed as per Ext.A6 judgment. 6. The 1[st] defendant then filed O.S.No.402 of 2003 alleging that the plaintiff herein is attempting to forcefully evict her from the property. Again the plaintiff approached this Court in W.P.(C)No.39977 of 2003. This Court directed the maintainability of the suit to be considered. Thereafter, as is evidenced by Ext.A10, the suit was dismissed as not pressed. R.F.A.No.39 of 2023 -: 4 :- 7. The 1[st] defendant again filed another suit as OS.No.293 of 2010, claiming right over the property. The plaintiff again approached this Court in O.P.No.534 of 2011 as per Ext.A16 judgment, this Court directed the maintainability to be considered. The said suit was also dismissed as not pressed. 8. In the meantime, the present suit was filed for recovery of possession on the strength of the title. 9. Pending the suit, the plaintiff died and the legal heirs were impleaded as additional plaintiffs. 10. The defendants denied the title of the plaintiff and was contended that, no actual delivery was effected in the execution of the decree in O.S.No.412 of 1968. It was also contended that the title of the plaintiff is lost by adverse possession and limitation. It was further contended that the 1[st] defendant was a sub-mortgagee for the property and the decree in O.S.No.412 of 1968 does not bind her since she was not a R.F.A.No.39 of 2023 -: 5 :- party in the suit. She also claimed the benefit of Section 4A(1)(b) of the Kerala Land Reforms Act, 1963. 11. I have heard the learned counsel on either side. The points that arise for determination are, _(i) Has the plaintiff proved title over the plaint scheduled property?_ _(ii) Was the trial court right in having rejected the plea of adverse possession?_ _(iii) On the facts of the case, can the plea of deemed tenancy urged by the defendants be found to be bonafide?_ _(iv) In the light of the earlier litigations, is the plea of submortgagee available to the 1[st] defendant?_ _(v) Does the decree and judgment of the trial court call for any interference?_ 12. Though the defendants disputed the title of the plaintiff, Ext.A1 Gift Deed, Ext.B22 Partition Deed of the year 1950, Exts.A30 and A31 judgment and decree in O.S.No.412 of 1968 and Exts.A28 and A29 delivery reports in the execution proceeding in O.S.No.412 of 1968 prove the title of the plaintiff. R.F.A.No.39 of 2023 -: 6 :- 13. As regards the contention that no delivery was effected in O.S.No.412 of 1968, as noticed, Exts.A28 and A29 delivery sheet and the report of the Amin evidence that the property was delivered over in execution of the decree. There is no evidence to find that, inspite of Exts.A28 and 29, the delivery was not effected. Therefore, the said contention was rightly rejected by the trial court. 14. Elaborating on the plea of adverse possession it is contended that, even as per the plaintiff's case, the defendants trespassed into the property in the year 1994. However, the present suit is filed only in the year 2012. Therefore, the title of the plaintiff is lost by adverse possession, it is contended. The trial court noticed that the classical requirements of adverse possession are “ _nec vi, nec clam, nec precario_ ”, i.e., peaceful, open and continuous possession. Mere possession, however long it may be, will not amount to adverse possession. R.F.A.No.39 of 2023 -: 7 :- In _**Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729**_ , the Apex Court while dilating on the law of Adverse Possession observed, _“Trespasser’s long possession is not synonym with adverse possession”_ . There is no material to show the peaceful, open and hostile possession of the property. The facts admit of no doubt that the possession was not peaceful and in satisfaction of the elements to constitute adverse possession. No material is brought to the notice of this Court to find otherwise. The plea of adverse possession was thus rightly rejected by the trial court. 15. As the regards of the plea of deemed tenancy under Section 4A(1)(b) of the Kerala Land Reforms Act, as noticed by the trial court, the defendants do not have a case that they or their predecessors had constructed a building in the property 20 years immediately prior to the commencement of the Act. So also, such a plea was never urged nor prosecuted in the earlier suits filed by the 1[st] defendant. The plea on R.F.A.No.39 of 2023 -: 8 :- the face of it, thus being unsustainable and without bonafides, the trial court was right in having refused to refer the matter to the Land Tribunal. _**(See Thomas Antony v. Varkey Varkey [2000 (1) KLT 12 (SC)]** ._ 16. As regards the plea that the 1[st] defendant was the sub-mortgagee of the property and was not a party to O.S.No.412 of 1968, and hence the decree therein is not binding on her, such a plea was not urged and prosecuted in the earlier suits filed by her. Such a contention is not open to be urged at this stage. The contention ought to have been urged in the earlier litigations. That apart, as noticed by the trial court, in _**Maheshwaradathan Namboodiri v. Narayanan Namboodiri and Ors. [1970 KLT 313]**_ , the Full Bench of this Court held that, a redemption without notice of the sub-mortgage is valid and effective as against the sub-mortgagee. The defendants do not have a case that, the existence of the sub-mortgage, if at all any, was brought to the notice R.F.A.No.39 of 2023 -: 9 :- of the plaintiff in the said suit. Therefore, the said contention also was rightly turned down by the trial court. 17. Ever since the decree in O.S.No.412 of 1968, attempts were being made one after the other by the defendants to cling on to the property. The claim petition filed was dismissed. Even after the delivery, there was a further trespass into the property. The claim of 'Kudikidappu' was negatived. Suits were filed as O.S.No.79 of 19891, O.S.No.47 of 1995, O.S.No.402 of 2003 and O.S.No.293 of 2010, all in attempt to cling on to the property. As was noticed, O.S.No.79 of 1991 was dismissed and the other suits were dismissed as not pressed. The conduct of the defendants is not liable to be acknowledged. The trial court was right in having decreed the suit with costs. There is no reason to decline costs to the respondents in the appeal. R.F.A.No.39 of 2023 -: 10 :- Resultantly, the appeal is dismissed with costs. Sd/- **SATHISH NINAN, JUDGE** yd