Vannathan Kandiyil Alavoor Kunhiraman Nambiar v. Nelliatt PuthiyaPurayil Ahammed and others, including legal heirs of deceased R1

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932** **SA.No. 728 of 1996(C)** **-------------------------------** **AS.43/1994 of ADDL. DISTRICT COURT, THALASSERY OS.297/1990 of MUNSIF COURT, KUTHUPARAMBA** **....................** ## **APPELLANT(S):** **-----------------------** - **1. VANNATHAN KANDIYIL ALAVOOR KUNHIRAMAN NAMBIAR,** - **KEEZHALLUR AMSOM, ELAMBARA DESOM, KANNUR TALUK.(DIED)** ## ***SUPPLEMENTAL APPELLANTS 2 TO 7 IMPLEADED** **2. RADHAKRISHNAN N.A., DWARAKA , ELAYAVOOR AMSOM,** **NEAR S.N.COLLEGE, THOTTADA KANNUR.** **3. DAMODARAN.N.A., SREEPARVATHI,THERUR, EDAYANNUR P.O., KANNUR.** **4. HARIDASAN.N.A., SREEDEVI NIVAS, KEEZHALLUR AMSOM,** **THERUR, EDAYANNUR P.O., KANNUR.** **5. SREENIVASAN.N.A., DO. DO.** **6. RAMAKRISHNAN.N.A., DO. DO.** **7. P.K.JANAKI AMMA, DO. DO.** ## **SUPPLEMENTAL APPELLANTS 2 TO 7 IMPLEADED AS THE LEGAL REPRESENTATION OF THE DECEASED APPELLANT AS PER ORDER DATED 17/3/97 IN CMP.NO.432/97.** **BY ADV.SRI.V.V.ASOKAN SRI.K.I.MAYANKUTTY MATHER SMT.JIJIMOL J. VADAKKEN** ## **RESPONDENT'S** - **1. NELLIATT PUTHIYAPURAYIL AHAMMED, THAYYIL HOUSE,** - **HOUSE NO.4, KEZHALLUR AMSOM, ELAMBARA DESOM, THALASSERY.(DIED)** ## **sts** ## **SA.NO.728/1996** **2. KOTTATH PUTHIYAKAVIL BALAN NAIR, MULAYIL THAZEVEETTIL, KEEZHALLUR AMSOM, ELAMBARA DESOM, KANNUR TALUK.** - **R2 IS DELEATED AS PER ORDER DTD 23/7/2010 IN CMP.778/1998.** **3. KOTTATH PUTHIYAKAVIL CHANDROTH KRISHNAN NAIR, DO. DO.** **4. MULAYIL PUTHENVEETTIL LAKSHMI AMMA, DO. DO.** **5. MULAYIL PUTHENVEETTIL RAJU, DO. DO.** **6. MULAYIL PUTHENVEETTIL GANGADHARAN, DO. DO.** **7. MULAYIL PUTHENVEETTIL JANAKI, DO. DO.** **8. MULAYIL PUTHENVEETTIL SHOBHANA, DO. DO.** **9. MULAYIL PUTHENVEETTIL PUSHPAJA, DO. DO.** **10. MULAYIL PUTHENVEETTIL BALAKRISHNAN, DO. DO.** **11. MULAYIL PUTHENVEETTIL PAVITHRAN, DO. DO.** - **ADDL.RESPONDENT'S 12 TO 23 IMPLEADED** - **ADDL.R12: K.C.PATHUMMA, W/O.LATE AHAMMED, THAYYIL HOUSE, KUMMANNAM, KEEZHALLUR AMSOM, ELAMBARA DESOM,** - **KANNUR DISTRICT.** - **ADDL.R13: K.C.SIYAD, S/O.LATE AHAMMED, DO. DO.** - **ADDL.R14: K.C.RUKHYA, D/O.LATE AHAMMED, DO. DO.** - **ADDL.R15: K.C.SUBAIDA, D/O. DO. DO.** - **ADDL.R16: K.C.HASEENA, DO. DO. DO.** - **ADDL.R17: K.PARU AMMA, MULAYIL THAZHEVEETTIL,** - **ELAMBARA EDAYANNUR, VIA KANNUR.** - **ADDL.R18: K.PREMA, D/O.K.PARUAMMA, MULAYIL,** - **THAZHEVEETTIL, ELAMBARA, EDAYANNUR, VIA KANNUR.** - **ADDL.R19: K.PRAMEELA, D/O.K.PARUAMMA, MULAYIL THAZHEVEETTIL, ELAMBARA, EDAYANNUR, VIA KANNUR. ADDL.R20: K.PRAMOD, S/O.PARUAMMA, MULAYIL THAZHEVEETTIL,** - **ELAMBARA, EDAYANNUR, VIA KANNUR.** **S.A.NO.728/1996** **ADDL.R21: K.PRADEEP(MINOR) MULAYIL, THAZHEVEETTIL, ELAMBARA, EDAYANNUR, VIA KANNUR.** **ADDL.R22: K.PRASANTHAN(MINOR) MULAYIL, THAZHEVEETTIL, ELAMBARA, EDAYANNUR, VIA KANNUR.** **ADDL.R23: K.PRAVEEN(MINOR), MULAYIL THAZHEVEETTIL, ELAMBARA EDAYANNUR, VIA KANNUR. ( RESPONDENTS 19 TO 21 REPRESENTED BY THEIR GUARDIAN MOTHER K.PARUAMMA)** **LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDL RESPONDENTS 12 TO 16 AND CAUSE FILE OF THE SECOND APPEAL IS AMENDED BY ADDING THE NAMES OF ADDL R17 TO 23 AS PER ORDER DTD 23/7/10 IN CMP.NO.414/97 AND 778/98 RESPECTIVELY.** **R15 TO R20 BY ADVS. SRI.R.PARTHASARATHY SRI.E.V.NAYANAR SMT.VIDHYA. A.C SRI.A.C.VENUGOPAL** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON 17/02/2011 DELIVERED THE FOLLOWING:** **sts** ## **S.A.NO.728/1996** **ORDER ON C.M.P.NO.1540/1996 IN S.A.NO.728/1996** ## **DISMISSED** **11/1/2011** **SD/- P.BHAVADASAN,JUDGE** **/TRUE COPY/ P.A.TO.JUDGE** ## **sts** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 728 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of February, 2011. ## **JUDGMENT** In this Second Appeal at the behest of the first defendant in O.S. 297 of 1990, the question that arises for consideration is whether the lower appellate court was justified in reversing the finding of the trial court holding that the plaintiff as well as defendants 2 to 11 had lost whatever rights they had over the suit property by adverse possession and limitation pleaded by the first defendant. 2. The suit was one for partition. It is not in dispute that the properties originally belonged to Pulleri Illom. As per Ext.A1 marupattom dated 8.3.1928 one Kelu Nambiar and one Bappu took the property for lease for 10 years. Kelu Nambiar thereafter as per Ext.A2 dated 3.3.1933 assigned half share to Kunhiraman Nambiar, Kunhappa Nambiar and Kunhambu Nair. It may be noticed here that Kunhambu Nair is the father of defendants 2 and S.A.728/1996. 2 3. Kunhappa Nambiar died and the properties devolved on his children. Later by Ext.A4 dated 27.4.1966 the children of Kunhappa Nambiar assigned their share to Kunhikannan Nambiar. Kunhikannan Nambiar later assigned his rights to the plaintiff as per Ext.A7 dated 7.9.1989. Claiming partition of the suit property into three shares and claiming one share, the suit was laid. 3. The first defendant resisted the suit. It is pointed out by him that the plaintiff as well as defendants 2 to 11 have no manner of right over the suit property. As per Ext.A3 dated 2.4.1948 he obtained jenm rights of the Illom over the suit property and eversince then he has been in absolute possession and enjoyment of the property to the exclusion of others. He maintained that the documents relied on by the plaintiff are not binding on him. It was pointed out that the assignor of the plaintiff had moved the Land Tribunal for obtaining purchase certificate in respect of the suit property. The first defendant had filed objection pointing out that none other had possession over the suit S.A.728/1996. 3 property and he alone was entitled to assignment of the rights of the landlord. The said application filed by the assignor of the plaintiff was dismissed by the Land Tribunal. Therefore the plaintiff can have no manner of right over the suit property. As far as defendants 2 to 11 are concerned, it is pointed out that they have never exercised any act of possession or took any income from the property and even if they had any possession, it was lost by adverse possession and limitation. On the basis of these contentions, he prayed for a dismissal of the suit. 4. A separate written statement was filed by defendants 2 to 11 supporting the plaintiff. Based on the above contentions, necessary issues were raised by the trial court. The plaintiff examined himself as P.W.1 and had Exts.A1 to A7 marked. The contesting defendants examined D.Ws. 1 to 3 and had Ext.B1 to B8 marked. Ext.X1 series are the file of the Land Tribunal, Kuthuparamba. The trial court noticed that in the proceedings initiated by the predecessor in interest of the plaintiff before the Land Tribunal for S.A.728/1996. 4 assignment as per O.A. 6236 of 1975, the first defendant had filed a written statement dated 26.3.1976 claiming that the property exclusively belonged to him and nobody else had any manner of right over the same. It was also pointed out by him that he has been in absolute possession and enjoyment of the property from 1948 onwards. Land Tribunal happened to dismiss the petition. The trial court therefore felt that atleast from the date on which the written statement was filed claiming right in himself, the plaintiff and others were put on alert that the first defendant was claiming right adverse to their right. Ext.A7 was executed only on 7.9.1989 and the suit was laid only in 1990. Observing that no proceedings have been taken either by the predecessor in interest of the plaintiff or anybody else in order to assert their rights in derogation of the rights claimed by the first defendant, the trial court held that the suit is barred by adverse possession and limitation. Accordingly, the suit was dismissed. Defendants 2 to 11 took up the matter in appeal as A.S. 43 of 1994 and the S.A.728/1996. 5 plaintiff took up the matter in appeal as A.S. 203 of 1994. 5. The lower appellate court differed with the trial court and held that the finding of the trial court that the claim of the plaintiff as well as defendants 2 to 11 is barred by adverse possession and limitation is not correct. Since the tenancy right of Bappu was admitted, the tenancy right of other persons, who claimed under Bappu, could not have been challenged. Holding so, the lower appellate court allowed the appeals and passed a preliminary decree for partition. The said judgment and decree are assailed before this court. 6. Notice is seen to have been issued on the following questions of law: _“a) Does not the assertion made by the present 1[st] defendant in the written statement filed by him before the Land Tribunal, Kuthuparamba evidenced by Ext.X1(c) dated 26.3.1976 amount to an open assertion of hostile title and possession in respect of the property with himself to the exclusion of all others?_ S.A.728/1996. 6 _b) Is not such an assertion sufficient to support the plea of adverse possession and limitation raised by the 1[st] defendant?_ _c) In the light of Ext.X1(c) dated 26.3.1976, is not the suit filed by the plaintiff on 5.7.1990 barred by limitation and adverse possession?”_ 7. Learned counsel appearing for the appellant very vehemently contended that the lower appellate court was not justified in reversing the findings and the conclusions reached by the trial court. Even assuming that the lower appellate court could not accept the claim made by the appellant herein that he has been in absolute possession and enjoyment of the property from 1948 exclusively, at any rate, from the date of the filing of the written statement before the Land Tribunal, it was very clear that the first defendant was asserting rights in himself in derogation of the rights of others. Still no steps were taken by the predecessor in interest of the plaintiff to assert his right within 12 years period. Ext.A7 is executed in the year S.A.728/1996. 7 1989 and suit is laid in the year 1990. As far as defendants 2 to 11 are concerned, according to him, they had never participated in the cultivation of the property, nor they had ever received any income. At no point of time, they had asserted any right nor they had acted in derogation of the rights asserted by the first defendant. Learned counsel went on to point out that the claim of the plaintiff and defendants 2 to 11, if any, is barred by adverse possession and limitation. Learned counsel relied on the decisions reported in **Sainaba Umma v. Moideenkutty** (1987(2) K.L.T. 54) and **Kodiyan v. Karambi** (2007 (2) K.L.T. 361) and contended that the rights of the plaintiff and defendants 2 to 11 are barred by adverse possession and limitation. 8. In reply, learned counsel appearing for the contesting respondents pointed out that there is no merit in the above contention. The lower appellate court has analysed the evidence on record and had come to the conclusion that it could not be said that the appellant before this court had perfected title by adverse possession and S.A.728/1996. 8 limitation. It has discussed the oral evidence in detail and has come to the conclusion that there was nothing to show that the first defendant was holding the property in derogation of the rights of others. Learned counsel appearing for the first respondent in these appeals pointed out that the proceedings before the Land Tribunal happened to be dismissed as a result of reporting of no instructions and it was not decided on merits. According to learned counsel for the appellant, he was told that unless a partition was sought for, it was not possible for him to obtain purchase certificate and there was no purpose in prosecuting the petition before the Land Tribunal. Therefore he did no pursue the matter. As far as defendants 2 to 11 are concerned, who are the other respondents in this appeal, their contention is that they were not parties to the proceedings before the Land Tribunal and they are not bound by the order of the Land Tribunal. There is nothing to show that the first defendant had asserted rights in derogation of their rights at any point of time and therefore S.A.728/1996. 9 they cannot be denied their rights. In support of the above contention, learned counsel appearing for the respondents relied on the decision reported in **Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan** (2008(4) K.L.T. 357 (SC)). 9. As noticed, the plaintiff and defendants 2 to 11 sail together. The plaintiff claims 1/3[rd] share, so also defendants 2 to 11. There is no dispute regarding the fact that the property belonged to Pulleri Illom and it was taken on lease by Kelu Nambiar and Bappu. Exts.A1 and A2 are also admitted. The appellant relies on Ext.A3 dated 2.4.1948 to assert his claims. That is a jenm assignment deed from the jenmi in favour of the first defendant. One of the recitals in the document reads as follows: “ എഴ�ത�ക��ട�ത�ര�ന ��ണ�വ��ശ� ഇനകതന �ക ��ണ� ഒഴ�മ�റ�വ�ജ���യത�� പട��യ�ക� ഒന�� ന�ബര ന��� ന!യ�� മറ�� �#ട� �#ട�യ��........” S.A.728/1996. 10 There is no dispute regarding the fact that item No.1 referred to in Ext.A3 is the plaint schedule property. Therefore,, even at the time of execution of Ext.A3 document, it is clear that the assignees had accepted that he as well as others were in possession. That must be with reference to Exts.A1 and A2. Therefore strictly speaking it could not said that from the date of Ext.A3 onwards, the first defendant was holding the property adverse to the interest of the other lessees, who are enjoying the property along with him. 10. However, the position assumes different scenario after the filing of the application by the predecessor in interest of the plaintiff before the Land Tribunal for assignment of his rights. That was in the year 1975. Ext.X1 is the file relating to the same. It is seen that on 26.3.1976 the first defendant in the suit, who is the appellant herein had filed detailed objections to the application filed by the predecessor in interest of the plaintiff. Therein, he had asserted that by virtue of Ext.A3 document dated 2.4.1948 S.A.728/1996. 11 he had been in absolute possession and enjoyment of the property to the exclusion of all others and nobody other than him had any right over the suit property. It is true that defendants 2 to 11 were not parties to the proceedings. Revenue Inspector's report dated 28.4.1977, which is marked as Ext.X1(d), shows that as per the enquiry conducted by the Revenue Inspector, the petitioner in the application was not in possession of the property involved in the proceedings. It was thereafter that no instructions were reported before the Land Tribunal and the Land Tribunal happened to dismiss the application. Even though the order of the Land Tribunal may not have much significance in the case on hand, one aspect looms large. As early as on 26.3.1976 the first defendant in the suit had asserted that the property exclusively belonged to him and nobody else had any manner of right over the same. There is nothing to show that thereafter the predecessor in interest of the plaintiff had taken steps to reassert his right and to show that he too had rights over the suit property along with the S.A.728/1996. 12 first defendant. It is true that in the decision reported **Hemaji Waghaji Jat's case** (supra) relied on by the respondents in this case, it was observed as follows: _“In Karnataka Board of Wakf v. Government of India ((2004) 10 SCC 779) at para 11, this court observed as under:-_ “In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is _“nec vi, nec clam, nec precario”_ , that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, S.A.728/1996. 13 visible, exclusive, hostile and continued over the statutory period.” _The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law._ _Therefore, a person who claims adverse possession should show:(a) on what date he came into possession, (b) what was the nature of his possession, © whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favaour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.”_ 11. In the case on hand, even though the appellant had pleaded that eversince Ext.A3, he has been in absolute possession and enjoyment of the property, even assuming that, that cannot be accepted, at any rate from 26.3.1976 he had made his intentions clear and had S.A.728/1996. 14 declared that he was holding the property adverse to the interest of everyone else, who had interest over the suit property. There was no justification on the part of the predecessor in interest of the plaintiff for not having asserted his rights over the same till the suit was laid in 1990. 12. It will be useful to refer to the evidence of D.W.3. He is the second defendant in the suit. In chief examination he speaks about the derivation of title and also stated that the property is in the joint possession of the plaintiff and the defendants. He speaks about the oral partition in the chief examination. In cross examination, he was unable to give details of the oral partition relied on by him. He has no proper knowledge about the details of the transaction nor is he familiar with the property. He claims that he had participated in the cultivation of the property. But he is not able to give any details regarding that aspect. He also says that he realised that the extent of the property is not correct when he participated in the cultivation of the S.A.728/1996. 15 property. But he had not done anything to rectify the mistake. It is clear that he had never participated in the cultivation of the property, nor had he received any income from the property. 13. One may now refer to the decisions relied on by the learned counsel for the appellant. 14. In the decision reported in **Sainaba Umma's case** (supra) it was held as follows: _“It is not, therefore, correct to say that in no circumstance there can be adverse possession by one co-owner against another. Even if a co-owner in possession is a constructive trustee of the co-owner not in possession, an open assertion of hostile title coupled with exclusive possession and enjoyment to the knowledge of the other co-owners constitute ouster and such ouster on assertion of hostile title openly to the knowledge of the other co-owners can be taken, as held by a learned Judge of this Court in_ _**Krishnan v. Raman** (1986 K.L.T. SN 63) as a renouncement of possession by the constructive trustee and a re-entry with an open and hostile animus to_ S.A.728/1996. 16 _constitute adverse possession. It is true that the burden is on the co-owner who claims adverse possession.”_ ## 15. In the decision reported in **Kodiyan's case** (supra) it was held as follows: _“Adverse possession is commenced in wrong and is aimed against the right. A person is said to hold the property adversely to the real owner, when that person in denial of the owner's right excluded him from the enjoyment of the property. The requirement of adverse possession is nec vi, nec clam, nec precario, ie. the possession required must be adequte in continuity, in publicity and in extent. Where the possession is referable to a permissive possession, it cannot be said that the person in possession has perfected title by adverse possession, even if he continued in possession for a long period. Mere continuance of possession for twelve years or more is not enough to defeat the title of the real owner and to claim title by operation of s.27 of the Limitation Act. The exception to the General Rule that the limitation bars only the remedy and not the right_ S.A.728/1996. 17 _is contained in S.27 of the Limitation Act, which reads as follows:_ _“_ 27. Extinguishment of right to property--At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.” _By the expiry of the period for instituting a suit for possession, the right of the owner of the property shall stand extinguished and the person in adverse possession would get a legal right to be in possession. A person who has perfected title by adverse possession could even maintain a suit on the basis of the prescriptive title he has acquired. S.27 operates as an extinguishment of the right of the real owner and a vesting of the right in the trespasser or a person in unlawful possession. Article 65 of the Limitation Act provides for a period of limitation of twelve years for filing a suit for possession of immovable property; and the time from which the period begins to run is provided as “when the possession of the defendant becomes adverse to the plaintiff”. Therefore, the starting point of the period of limitation is the point at which the possession of_ S.A.728/1996. 18 _the defendant becomes adverse to the plaintiff. That is a question of fact and it is to be pleaded and proved by the person who claims adverse possession. A person in permissive possession can claim that his possession was adverse to the real owner only if he proves that he had shed his character as the permissive occupier and started his possession adverse to the real owner. The animus possendenti is the important aspect to be proved to claim adverse possession. A secret hostile animus is not sufficient to constitute adverse possession. In the case of permissive possession, the possession by itself is not material or relevant, since the person who was permitted could possess the property on the basis of such cases. The possession becomes adverse only when it becomes irreconcilable or contrary to the permission granted. Such intention should be made known or at least manifested in the acts of the person who claims adverse possession.”_ 16. It is true that the law is very reluctant to accept adverse possession against co-owners or co-tenants unless there are compelling circumstances and clinching S.A.728/1996. 19 evidence to establish the plea of adverse possession and limitation. Normally a co-owner or a co-tenant is deemed to be in possession on behalf of the other co-owners. But that does not mean that under no circumstance there can be a claim of ouster of other co-tenants or co-owners. If it is shown that the person in possession has by his conduct specifically indicated that he was asserting right in himself in derogation of the rights of the others and continue to hold the property for over 12 years, then the law accepts the plea of adverse possession. But there has to be clear evidence to that effect. 17. In the case on hand, as already noticed, even assuming that the plea of the first defendant that he has been holding the property as his own from the date of Ext.A3, which is dated 2.4.1948, cannot be accepted, atleast when he filed objection to the O.A. filed by the predecessor in interest of the plaintiff, it was clear that he was claiming title adverse to those persons who may have rights over the suit property. Evidence of D.W.3 shows that he was aware S.A.728/1996. 20 of the proceedings before the Land Tribunal. It is significant to notice that there is absolutely no plea either by P.W.1 or defendants 2 to 11 to say that they had ever participated in the cultivation of the property or had received their share of income therefrom. The plaintiff, except for the production of Exts. A1 to A7 documents of title, had not produced any document to show that his predecessor in interest had exercised any act of possession over the suit property or had received any share of income therefrom. True, the order of the Land Tribunal in O.A. filed by the predecessor in interest of the plaintiff may not bind defendants 2 to 11, but the fact remains that D.W.3 had knowledge about the same and had no idea about the property. There is nothing to show that he had ever shared the income from the property nor had asserted any right over the same. At no point of time defendants 2 to 11 had made any attempt to get jenmam assignment of the suit property. Evidence adduced is sufficient enough to show that the first defendant had been holding the property as his own in derogation of the rights of 21 S.A.728/1996. others atleast from 1976 onwards. The trial court was therefore perfectly justified in coming to the conclusion that the rights, if any of the predecessor in interest of the plaintiff, as well as defendants 2 to 11 were lost by adverse possession and limitation. If that be so, the plaintiff can have no manner of right over the same. Therefore, this court is unable to accept the finding of the lower appellate court. In the result, this second appeal is allowed, the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court is restored. There will be no order as to costs. ## **P. BHAVADASAN, JUDGE** sb.