Vimala, Geetha and Gireesh v Ajith Associates (P) Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 RSA NO. 722 OF 2016 OS 691/2009 OF III ADDITIONAL MUNSIFF & RENT CONTROL COURT, ERNAKULAM DT.27.01.2011 AS 63/2011 OF I ADDITIONAL SUB COURT,ERNAKULAM DT.05.12.2015** ## **APPELLANT/APPELLANTS/PLAINTIFFS:** 1 VIMALA(61, W/O. LATE BALAN, KUNNARA HOUSE, EROOR, TRIPUNITHURA 2 GEETHA(33), D/O. BALAN, KUNNARA HOUSE, EROOR, TRIPUNITHURA 3 GIREESH (30) S/O.BALAN, KUNNARA HOUSE, EROOR, TRIPUNITHURA BY ADVS. SRI.S.K.BALACHANDRAN SRI.K.M.BIJU SMT.N.D.DEEPA ## **RESPONDENT/RESPONDENT/DEFENDANT:** AJITH ASSOCIATES (P) LTD, :SATGAMAY", M.G. ROAD, ERNAKULAM REPRESENTED BY ITS MANAGING DIRECTOR, B.R. AJITH, AGED 61, S/O. LATE DR.K.B.UNNITHAN,VRINDAVAN, KARITHALA DESOM, PRESENTLY RESIDING AT SILVER SAND ISLAND, KUNNARA ISLAND, VYTILA PO,682019 BY ADVS. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SRI.AVINASH P RAVEENDRAN SMT.ARYA RAGHUNATH SMT.ANJALY N.S. 2 ## R.S.A.No.722/2016 SMT.KADIJA JASMINE SRI.N.SUBRAMANIAM, THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 03.03.2023, THE COURT ON 22.03.2023 DELIVERED THE FOLLOWING: 3 R.S.A.No.722/2016 ## **M.R.ANITHA, J** **************** R.S.A.No.722 of 2016 ------------------------------------------Dated this the 22[nd] day of March, 2023 ## **JUDGMENT** The Regular Second Appeal has been filed against the judgment and decree in A.S.No.63 of 2011 on the file of Sub Court, Ernakulam which in turn arise out of the judgment and decree in O.S.No.691/2009 on the file of III Additional Munsiff and Rent Control Court, Ernakulam. 2. Appellants are the plaintiffs. (Parties would hereafter be referred as per their status before the trial court). Suit is one for declaration and permanent prohibitory injunction. Plaintiffs are the legal representatives of deceased Balan who died on 12.12.1994. Plaint schedule property having an extent of 10.80 cents of land originally belonged to Balan which is a part of larger extent of 31.33 cents obtained by him in a family partition of the 4 ## R.S.A.No.722/2016 year 1989. After the death of Balan, the defendants approached the plaintiffs claiming to have title over the properties as per sale deed executed by Balan and told that the plaintiffs are bound to vacate the property immediately. On enquiry, it was understood that sale deed No.2973/1994 has been executed by Balan in favour of defendant on 26.07.1994. On 23.07.1994 plaintiff issued a notice alleging that further extent of 23.50 cents of property on the north of the schedule property was agreed to be sold by deceased Balan and requested to execute the sale deed and summons was also received from Sub Court, Ernakulam in O.S.No.447/1995 which was filed for specific performance of sale agreement with respect to the above stated 20.530 cents of property. Deceased Balan was illiterate and ignorant and was in the habit of consuming alcohol in large quantities. Friends and others made use of his weakness to gain unfair advantage. O.S.No.447/1995 was dismissed on 30.01.1997. Defendant remitted tax and also got a sale deed in his favour. Hence suit has been filed seeking for declaration of title of plaintiff by adverse possession and also for consequential injunction. 5 ## R.S.A.No.722/2016 3. Defendant filed written statement contending that the intention of the plaintiffs is to harass the defendant for unlawful enrichment. The suit is bad for non-joinder of necessary parties. Plaint schedule property belong to the defendant and he obtained the same as per a valid registered sale deed which is executed more than fifteen years before. On the date of the sale deed itself, the defendant was put in possession of the property by the vendor. It is also denied that deceased Balan was illiterate and drunkard and friends and relatives used to make use of his weakness to get unfair advantage. The plaintiff never held the property adverse to the interest of the defendant either openly, uninterruptedly and peacefully, as alleged. Title of the defendant did not stand extinguished as alleged. 4. PW1 to PW3 were examined and Exts.A1 to A11 were marked from the side of the plaintiff. Managing Director of the defendant concern is examined as DW1 and Exts.B1 to B3 were also marked. Commissioner was examined as CW1. 5. On evaluating the rival contentions, facts and circumstances and evidence, the trial court dismissed the suit 6 ## R.S.A.No.722/2016 with cost of the defendant, against which appeal was filed and the first appellate court, on reappreciation of facts, circumstances and evidence, confirmed the judgment and decree passed by the trial court and dismissed the appeal. 6. Having lost before the two forums, the appellant approaches this court in second appeal. Heard both sides. 7. According to the Learned counsel for the appellants/plaintiffs, the pleadings in the plaint in paragraphs 2 and 9 relating to possession and adverse possession is not specifically denied by the defendant and hence there is violation of Order VIII Rule 2 of the Code of Civil Procedure, 1908 (for short 'the Code'). It is also contended that the plaintiff proved the prescription of title by adverse possession and a coconut climber was also examined to prove their hostile uninterrupted possession of the plaint schedule property but the courts below based on the old propositions of law that the plea of adverse possession can be taken only as a shield and not as a sword, dismissed the suit. 8. Learned counsel for the defendant, on the other hand, 7 ## R.S.A.No.722/2016 would contend that defendant has specifically denied the averments in the plaint and also categorically contended that the plaintiff could not establish the plea of adverse possession as alleged and hence courts below rightly dismissed the suit and no substantial question of law arise for entertaining the second appeal at the instance of this court. 9. The plaintiff claims right over the plaint schedule property by adverse possession. Plaintiffs' case is that after the execution of the sale deed in the year 1995, the plaintiff never parted with possession of the plaint schedule property and continued to remit the tax and the property is also lying continuous and plaintiffs are plucking coconuts from the trees standing in the plaint schedule property and also alleges that they are in open, uninterrupted peaceful possession of the schedule property adverse to the knowledge of the defendant and thereby title of the defendant stands extinguished. Whereas specific defence of the defendants is that in pursuance of Ext.A2 sale deed defendant was put in possession of the schedule property and the property is in their absolute possession and 8 ## R.S.A.No.722/2016 enjoyment. It has been found by the courts below concurrently that in pursuance of the sale deed, certified copy of which is marked as Ext.A2, the possession was handed over and Balan received the full sale consideration and the recitals in Ext.A2 sale deed also clearly prove the handing over of the possession of the property to the defendant and hence the plea of adverse possession will not stand. As has been rightly found by the courts below, Ext.A2, the certified copy of the sale deed would state that property was sold for a total sale consideration of Rs.1,35,000/- by demand draft and it is also specifically stated in Ext.A2 that the possession was taken by the defendant and Ext.B3, the tax receipt dated 27.12.2008 has also been produced by him. Inconsistent case of the plaintiffs in the plaint and during evidence has also been discussed in detail by the courts below. Evidence of PW1 is very pertinent in this context to be appreciated. During cross-examination, the plaintiff even went to the extent of denying the title of the defendant over the plaint schedule property. In page No.7, she would depose that her husband had not signed in Ext.A2 sale deed and she understood 9 ## R.S.A.No.722/2016 on enquiry from the Registrar's office that the document is a concocted document and in page No.9 she would depose that the defendant has no right over the plaint schedule property after the execution of Ext.A2. But, at the same time, she would plead ignorance as to whether any right of the defendant has been lost after the execution of Ext.A2 and further deposed that they are possessing the property after the execution of Ext.A2 as owners. So, the above evidence of PW1 cuts the root of the plaintiffs' claim of right over the schedule property by adverse possession. In order to establish the claim of adverse possession, plaintiff must first accept the title of the defendant over the schedule property. 10. Adverse possession means a hostile possession, that is, a possession which is expressly or impliedly in denial of a title of the true owner. Burden is upon the plaintiff to prove it affirmatively. A person who bases his title on adverse possession must show very clear and unequivocal evidence that his, possession was hostile to the real owner and amounted to a denial of his title to the property claimed (See **Anna Saheb** 10 R.S.A.No.722/2016 ## **Bapu Saheb Patil v. Balwant and Bala Saheb Babu Saheb Patil : 1995 (2) SCC 543 AIR 1995 SC 895).** 11. Detailed discussions have been made by the courts below to discard the claim of adverse possession put forward by the plaintiffs. It has been found that the Commissioner who visited the property reported that the plaint schedule property is a marshy land. The Commissioner also could not find any boundaries either for the plaint schedule properties or for the total property in favour of the plaintiffs. Though tax receipts have been produced, PW1 admitted that tax has been remitted for the entire property and execution of Ext.A2 was not disclosed to the Village Officer. With respect to Ext.A11 possession certificate issued with respect to total extent of 31.33 cents, PW1 admitted that execution of Ext.A2 was not disclosed by the Village Officer and he has not inspected the property before issuing the certificate. So, rightly the payment of land revenue or the possession certificate was not weighed much by the courts below as proof of possession of plaint schedule property by the plaintiffs. It is further noted that Ext.B1 copy of encumbrance 11 R.S.A.No.722/2016 certificate produced by the defendants shows the entry of Ext.A2. Defendant produced Ext.A3 tax receipt dated 27.12.2008 for payment of land revenue. Appreciating all those factors, the courts below found concurrently that the plaintiffs failed to prove that they have prescribed title by adverse possession over the plaint schedule property. 12. Another argument to be noted is that the cause of action alleged in the plaint for filing the suit is that, on 28.02.2009 when the plaintiff attempted to remit the tax with respect to schedule property, they know that the defendant already remitted the tax and thereby a cloud has been casted on the prescription title of the plaintiff. But, during evidence, PW1 admitted in page 14 that she came to know about Ext.A1 (mistakenly shown as Ext.A3) after three months of the death of her husband on 12.12.1994. But the suit has been filed only in the year 2009 alleging the cause of action that when they attempted to remit the tax on 28.02.2009 it was known that defendant had already remitted the tax. So, the cause of action so alleged is proved to be false through the evidence of PW1 12 ## R.S.A.No.722/2016 herself. So also, it has already been found that plaintiffs failed to prove the claim of adverse possession over the plaint schedule property by adducing clear and cogent evidence and plea of adverse possession has been concurrently found against the appellant by the courts below also. Another contention advanced by the learned counsel for the plaintiffs is with regard to the absence of specific denial in the written statement to the specific pleas in paragraph 9 of the plaint. In paragraph 9 of the plaint, plaintiffs alleges about O.S.No.437/2007 filed by M/s.Capvest Wealth Management Services Pvt Ltd and also the reasons or the ingredients in the plaintiffs claiming a declaration of title over the schedule property on the ground of prescription of title by adverse possession. In paragraph No.12 of the written statement, the defendants denied the averments in paragraph No.9 of plaint and plaintiffs are also put to strict proof of the averments and it is also specifically pleaded that the reasons mentioned towards the end of the paragraph are not genuine, proper or correct and further that the plaintiffs are not entitled to get any declaration, as sought for. So, in the written statement, there is substantial 13 ## R.S.A.No.722/2016 denial of the pleadings in paragraph 9 of the plaint though exact wordings or averments in the plaint is not extracted in the written statement. So, the denial in the written statement is clear and specific and cannot be found as evasive and hence the plea under Order VIII Rule 2 has no relevance. 13. So, on a close scrutiny of the judgments passed by the courts below, I am of the considered view that the courts below have meticulously considered the rival contentions, facts, circumstances and evidence adduced in this case in a correct perspective and I do not find any illegality and irregularity in the finding so entered into by the courts below. Hence, there is no substantive question of law emerging for consideration in this second appeal. In the result, R.S.A stands dismissed. ## (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge