Valsan and others v Sivadas and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 31ST DAY OF MARCH 2021/10TH CHAITHRA, 1943** ## **RSA.No.1000 OF 2019** **OS 155/2012 DATED 25-11-2014 OF PRINCIPAL SUB COURT,IRINJALAKUDA** **AS 22/2015 DATED 11-02-2019 OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **1 VALSAN, AGED 54 YEARS, S/O.LATE CHERAKULANGARA GANGADHARAN, NEAR CHRIST COLLEGE, IRINJALAKUDA VILLAGE AND DESOM, MUKUNDAPURAM TALUK (DIED). 2 BABU, AGED 52 YEARS, S/O.LATE CHERAKULANGARA GANGADHARAN, NEAR CHRIST COLLEGE, IRINJALAKUDA VILLAGE AND DESOM, MUKUNDAPURAM TALUK. 3 SANTHOSH, AGED 50 YEARS, S/O.LATE CHERAKULANGARA GANGADHARAN, NEAR CHRIST COLLEGE, IRINJALAKUDA VILLAGE AND DESOM, MUKUNDAPURAM TALUK. 4 SURESH, AGED 48 YEARS, S/O.LATE CHERAKULANGARA GANGADHARAN, NEAR CHRIST COLLEGE, IRINJALAKUDA VILLAGE AND DESOM, MUKUNDAPURAM TALUK. 5 MINI, AGED 32 YEARS, D/O.LATE CHERAKULANGARA GANGADHARAN, NEAR CHRIST COLLEGE,IRINJALAKUDA AND W/O.PALAKKATHAI VIJAYAN, MANNAMPETTA DESOM, AMBALLUR VILLAGE, MUKUNDAPURAM TALUK.** ## R.S.A.No.1000 of 2019 ..2.. **6 GIRIJA, AGED 48 YEARS, W/O.LATE VALSAN, CHERAKULANGARA HOUSE, NEAR CHRIST COLLEGE, IRINJALAKUDA VILLAGE AND DESOM, P.O.IRINJALAKUDA, THRISSUR DISTRICT. 7 AKSHAY, AGED 24 YEARS, S/O.LATE VALSAN, CHERAKULANGARA HOUSE, NEAR CHRIST COLLEGE, IRINJALAKUDA VILLAGE AND DESOM, P.O.IRINJALAKUDA, THRISSUR DISTRICT. 8 AJAY, AGED 22 YEARS, S/O.LATE VALSAN, CHERAKULANGARA HOUSE, NEAR CHRIST COLLEGE, IRINJALAKUDA VILLAGE AND DESOM, P.O.IRINJALAKUDA, THRISSUR DISTRICT.** **BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.BENOJ C.AUGUSTIN SRI.RAFEEK.V.K. SMT.P.PARVATHY SMT.SURYA.P.SHAJI SHRI.MANAS.P.HAMEED** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** **1 SIVADAS, AGED 55 YEARS, S/O.NJATTUVETTY KUMARAN, ANANDAPURAM POST, ANANDAPURAM VILLAGE AND DESOM, MUKUNDAPURAM TALUK, PIN- 680683.** **2 SUNITHA BAI, AGED 46 YEARS, D/O.NJATTUVETTY KUMARAN, ANANDAPURAM POST, ANANDAPURAM VILLAGE AND DESOM, MUKUNDAPURAM TALUK, PIN- 680683.** R.S.A.No.1000 of 2019 **==> picture [22 x 8] intentionally omitted <==** **3 JAYAPALAN, AGED 42 YEARS, S/O.NJATTUVETTY KUMARAN, ANANDAPURAM POST, ANANDAPURAM VILLAGE AND DESOM, MUKUNDAPURAM TALUK, PIN- 680683.** **R1-3 BY ADV. SRI.T.N.MANOJ** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19-03-2021, THE COURT ON 31-03-2021 DELIVERED THE FOLLOWING:** R.S.A.No.1000 of 2019 ..4.. ## **JUDGMENT** This R.S.A. is directed against the judgment and decree dated 11.2.2019 in A.S.No.22/2015 on the file of the Additional District Court, Irinjalakuda (hereinafter referred to as 'the first appellate court') which arose from the judgment and decree dated 25.11.2014 in O.S.No.155/2012 on the file of the Principal Subordinate Court, Irinjalakuda (hereinafter referred to as 'the trial court'). 2. The appellants and respondents herein are the defendants and plaintiffs respectively before the trial court. For the sake of clarity, the parties are hereinafter referred to as the plaintiffs and defendants according to their status in the trial court unless otherwise stated. 3. The plaint averments in brief are hereinbelow:- The parties to the suit are Hindu Ezhava R.S.A.No.1000 of 2019 **==> picture [22 x 8] intentionally omitted <==** and are guided by Hindu Succession Act. The plaint schedule property comprised in Sy.Nos.345/1, 2 and 10 having an extent of 1 acre and 24 cents originally belonged to one Kunjappu as per partition deed No.355/1121 of the SRO, Irinjalakuda. Kunjappu died. His wife Kunjipennu also died. They had 5 children namely, Madhavi, Janaki, Devaki, Karthyayani and Gangadharan. Madhavi, Janaki and Devaki died unmarried and issueless. Smt.Karthyayani is the plaintiff in the suit. Now she is no more. Hence, her legal heirs are impleaded as plaintiffs 2 to 4. Gangadharan is also no more. The 1[st] defendant is the wife and the defendants 2 to 6 are the children of late Gangadharan. After the death of Gangadharan, Karthyayani demanded partition of the plaint schedule property into two by metes and bounds and claimed her half right over the property. After the death of said Gangadharan, Karthyayani has placed such R.S.A.No.1000 of 2019 ..6.. claim before the defendants. But they have deferred partition of the property for the reasons better known to them. Hence, the suit. 4. The defendants 1 to 6 filed written statement raising the following contentions:- Gangadharan and Karthyayani have been possessing and enjoying the plaint schedule property as co-owners. In fact, at the time when Karthyayani was given in marriage the said Kunjappu had given her entire rights of the family property as gold ornaments. Karthyayani has no right over the plaint schedule property. After the death of Kunjappu, the said Gangadharan was alone holding and managing the properties. He was enjoying the property as his own. Even if Karthyayani has any claim over the plaint schedule property, the same is lost due to the principles of adverse possession, limitation and ouster. The plaint schedule R.S.A.No.1000 of 2019 ..7.. properties are not available for partition between the legal heirs of Karthyayani and legal heirs of Gangadharan. 5. On evaluating the entire evidence, the trial court held that the ouster pleaded by the defendants is not established in evidence and the plaint schedule property is partible. Challenging the preliminary decree and judgment, the defendants preferred an appeal before the first appellate court. The first appellate court dismissed the appeal confirming the preliminary decree and judgment of the trial court. Assailing the judgment and decree of the first appellate court, the defendants have preferred this R.S.A. 6. Heard the learned counsel for the appellants and the learned counsel for the respondents. 7. The learned counsel for the appellants Sri.Nagaraj Narayanan contended that the notorious and exclusive possession in assertion of hostile title by the R.S.A.No.1000 of 2019 ..8.. defendants and their father over the scheduled property coupled with the sole enjoyment of the benefits and profits accrued from the land for more than 35 years, constitutes ouster and adverse possession as against the plaintiffs' mother and consequently against the plaintiffs. 8. On the other hand, the learned counsel for the respondents would contend that merely because some of the co-owners have been residing in the suit property for a considerable long time, a conclusion cannot be reached that the other co-owners have been ousted. According to the learned counsel for the defendants, when adverse possession is pleaded against co-owner, exclusion from possessing suit property and the knowledge of the coowners about such exclusion has to be proved. 9. Admittedly, the plaint schedule property belonged to one Kunjappu by virtue of Ext.A1 partition deed No.355/1121 ME. Kunjappu and his wife Kunjipennu R.S.A.No.1000 of 2019 ..9.. had 5 children and except Gangadharan and Karthyayani others died unmarried and issue-less. Subsequent to the death of Kunjappu, Gangadharan and Karthyayani alone are entitled to inherit their properties. The relationship is admitted. The present plaintiffs are the legal heirs of Karthyayani and the present defendants are the legal heirs of Gangadharan. 10. The defendants would contend that Karthyayani was given in marriage about 55 years back and while so her entire rights over the properties of the said Kunjappu had been given to her as gold ornaments. Kunjappu died in the year 1976. Ext.B1 is a document styled as a partition deed executed on 09.12.1992 between Gangadharan and his wife Kousalya, their children, namely, Valsan, Babu, Santhosh and Suresh. In Ext.B1 it is stated that after the death of Kunjappu, Gangadharan alone is entitled to inherit the property obtained as per R.S.A.No.1000 of 2019 **==> picture [28 x 8] intentionally omitted <==** Ext.A1 partition deed. In Ext.B1, Karthyayani is not a party. Admittedly, Karthyayani is a legal heir of Kunjappu. Hence, Ext.B1 document executed without her junction is not valid as against her. She has every right to ignore the same. Based on Ext.B1, Exts.B2 to B8 documents are originated. These documents are not sufficient to show that the right of Karthyayani has been lost. Further, there is no oral or documentary evidence to prove that at the time of her marriage entire right over the properties of Kunjappu has been given to her as gold ornaments. By way of abundant caution, the defendants have set up plea of ouster and adverse possession as against the plaintiffs. It is well-settled that Ext.B1 document will not confer any absolute right to Gangadharan over the properties. Since the parties are governed under the Hindu Succession Act, Karthyayani gets one half right over the plaint schedule property. R.S.A.No.1000 of 2019 **==> picture [28 x 8] intentionally omitted <==** 11. It is well-settled law that in order to establish adverse possession against one co-owner as against another, it is not enough to show that one out of them is in sole possession and enjoyment of the profit, of the properties. Ouster of non-possessing co-owner by the coowner in possession who claims his possession to be adverse, should be made out. The possession of one coowner is considered in law, as possession of all the coowners. When one co-owner is found to be in possession of the properties, it is presumed to be on the basis of joint title. The co-owner in possession cannot render his possession adverse to the other co-owner not in possession merely by secret hostile animus on his own part in derogation of the other co-owner's title. It is settled rule of law that as between co-owners, there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one R.S.A.No.1000 of 2019 **==> picture [28 x 8] intentionally omitted <==** of them to the knowledge of the other so as to constitute ouster. The burden of making out ouster is on the person claiming to displace the lawful title of a co-owner by his adverse possession. In this connection, it is appropriate to deal with some important cases decided by various Courts regarding the principles of ouster and adverse possession (see (i) **Secretary of State for India In Council v. Debendra Lal Khan** [AIR 1934 PC 23], (ii) **P.Lakshmi Reddy v. L.Lakshmi Reddy** [AIR 1957 SC 314], (iii) **S.M.Karim v. Bibi Sakina** [AIR 1964 SC 1254], (iv) **R.Chandevarappa & Others v. State of Karnataka & Others** [(1995) 6 SCC 309], (v) **D.N.Venkatarayappa and another v. State of Karnataka and Others** [(1997) 7 SCC 567], (vi) **Md.Mohammad Ali (Dead) By LRs. v. Jagadish Kalita & Others** [(2004) 1 SCC 271], (vii) **Karnataka Board of Wakf v. Govt. of India** [(2004) 10 SCC 779] R.S.A.No.1000 of 2019 ..13.. (viii) **Saroop Singh v. Banto** [(2005) 8 SCC 330], (ix) **T. Anjanappa & Others v. Somalingappa & another** [(2006) 7 SCC 570],(x) **P.T.Munichikkanna Reddy & Others v. Revamma & Others** [(2007) 6 SCC 59], (xi) **Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & others** [(2009) 16 SCC 517], (xii) **Ramesh Chander Gupta v. Kanta Gupta [MANU/DE/0493/2015])** . 12. In the case on hand, the defendants have not admitted that the plaintiffs have title to the property. They set up title as per Ext.B1 in derogation of the right of the plaintiffs by virtue of Ext.A1. In the case of a co-owner, however, the long possession might be, would not constitute adverse possession. There is no sufficient pleading to prove as to from when the defendants' adverse possession commences and the nature of their possession. The parties are close relatives. In view of the R.S.A.No.1000 of 2019 **==> picture [28 x 8] intentionally omitted <==** close relationship, something more is to be proved to prescribe title by adverse possession than a case between two strangers as held by the Apex Court in **Ramesh Chander Gupta's** case (supra). Merely because the defendants paid tax to the property, or created some documents on the strength of Ext.B1 without the junction of Karthyayani who was a legal heir of deceased Kunjappu would not, by itself, establish ouster or adverse possession as against the plaintiffs. The burden of ouster has not been discharged properly. 13. Both the trial court and first appellate court examined the entire evidence on record at length and arrived at a reasoned conclusion that the defendants have not established their claim over the entire property by way of adverse possession and limitation. The finding is based on cogent and binding documents of title including Exts.A1 and B1 documents. There was no erroneous inference R.S.A.No.1000 of 2019 **==> picture [28 x 8] intentionally omitted <==** from any proved facts. No substantial questions of law arise for consideration in this appeal. Hence this R.S.A. is liable to be dismissed. In the result, this R.S.A. is dismissed. There will be no order as to costs. Pending applications, if any, stand closed. Sd/- **N.ANIL KUMAR, JUDGE** skj