V.S. Muhammed Ashraf v. Kanakamani.K and Resmi.K

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 19TH DAY OF DECEMBER 2013/28TH AGRAHAYANA, 1935** **RSA.No. 1395 of 2013 (G)** **------------------------** **AGAINST THE JUDGMENT IN AS 218/2011 of ADDL.DISTRICT COURT–III KOZHIKODE DATED 23-02-2013** **AGAINST THE JUDGMENT IN OS 505/2002 of PRL.MUNSIFF COURT-I KOZHIKODE DATED 29-10-2011** ## **APPELLANT/APPELLANT(S)/DEFENDANT:** **-----------------------------------------------------------** **V.S.MUHAMMED ASHRAF AGED 55 YEARS S/O.V.B.SAIDHUKUTTY, RESIDING AT VALIYA VEETTIL NADAKKAVU, KATCHERI AMSOM AND DESOM, KOZHIKODE TALUK KOZHIKODE DISTRICT** **BY ADVS.SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH** ## **RESPONDENTS/RESPONDENT(S)/PLAINTIFFS 2 & 3:** **--------------------------------------------------------------------------** **1. KANAKAMANI.K, AGED 69 YEARS W/O.KILIYANATTU JAYARAJAN RESIDING AT VALAPPILTHODI HOUSE KATCHERI AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE** ## **2. RESMI.K, AGED 42 YEARS** **D/O.KILIYANATTU JAYARAJAN RESIDING AT VALAPPILTHODI HOUSE KATCHERI AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE** ## **BY ADV. SRI.K.A.SALIL NARAYANAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ R.S.A. No.1395 of 2013 -----------------------------------------Dated this the 19[th] day of December, 2013 ## **J U D G M E N T** The defendant is the appellant. The trial court decreed the suit directing the appellant to demolish the unauthorised construction put up by the appellant in the 'C' schedule property and he was also directed to surrender vacant possession of 'C' schedule property to the plaintiffs. A prohibitory injunction was also granted restraining the appellant from interfering with the plaintiffs' peacefull possession and enjoyment of the 'A' schedule property. The appeal filed against the same was dismissed by the lower appellate court. 2. The plaint 'A' schedule property belonged to the plaintiffs, obtained as per Ext.A1 - partition deed of 1986. The 'B' schedule property was taken on lease by one Thala. **-2-** ## **R.S.A. No. 1395/2013** When Thala attempted to trespass into the plaint schedule property, a suit was filed against her and her children for an injunction. That suit was decreed against Thala. 3. The plaint 'A' schedule and 'B' schedule properties, shown in the present suit, are the same as shown in the previous suit O.S. No.337/1974. Thala was having 'karaima right' as per Ext.A2, only over the 'B' schedule property having an extent of 11 x 6 six feet koles. The defendant's wife purchased 3.76 cents of land from the plaintiffs as per Ext.B3 document dated 7.8.1996. Subsequently, the defendant purchased the plaint 'B' schedule property from the legal heirs of deceased Thala in 2001. 4. The plaintiffs contended that while putting up additional constructions, the defendant trespassed into a portion of the plaint 'A' schedule property. Though the **R.S.A. No. 1395/2013** **-3-** defendant was directed to remove the same he did not heed to it. Hence, the suit was filed. The defendant resisted the suit contending that the trespass alleged is not true. The defendant's predecessor had obtained the purchase certificate in respect of the karaima property. The defendant has got right over the land appurtenant to the karaima holding. 5. The properties were identified with the help of the Advocate Commissioner who filed Exts. C1 to C3. Ext.C1 is the Commissioner's report, Ext.C2 is the Commissioner's plan and Ext.C3 is the plan prepared by the Taluk Surveyor. 6. The fact that decree was passed against the defendant's predecessor – Thala, in the earlier suit (O.S. No.337/1974, was taken into consideration by the courts below. The contention that since that was an exparte decree, the defendant/appellant was not bound by the same was rightly rejected by the courts below. The property **R.S.A. No. 1395/2013** **-4-** covered by Ext.A2 and the property covered by Ext.B3 were properly identified by the Advocate Commissioner. It was vehemently contended by the defendant before the court below that the house situated in the karaima holding is in a dilapidated condition. The karaima tenant is not residing in that house, it is stated. If the identification done by the Advocate Commissioner and Surveyor is accepted, the appellant's right to have access to the toilet and other constructions would be denied, it was argued but it was also found against by the lower appellate court. 7. Exhibit B4 series – the photographs and the evidence given by DW3, proved that the building was in a dilapidated condition and that nobody is residing in that house. Of course, the question is not whether anybody is residing in the house, but the question is whether the defendant/appellant has encroached into any portion of the ## **R.S.A. No. 1395/2013** **-5-** plaint schedule property beyond the karaima holding and the land purchased by his wife. The property covered by karaima holding and Ext.B3 were correctly identified by the Advocate Commissioner. It was found that the construction made by the defendant is by encroaching into the plaintiffs' property. 8. It was vehemently argued by the appellant before the court below that the he has perfected title to the encroached portion by adverse possession and limitation. The defendant's predecessor was having only karaima right and that alone is the property his assignee can obtain and possess. The contention that he is entitled to have some more land cannot be accepted at all. Not only that an injunction decree was passed against the defendant's predecessor holding that the plaintiff is in possession of the 'A' schedule property shown therein which is exactly the ## **R.S.A. No. 1395/2013** **-6-** plaint 'A' schedule property in this suit. Plaint 'B' schedule property was the property covered by the karaima right which alone was obtained by the defendant by virtue of the assignment obtained by him from the legal heirs of Thala. 9. The learned counsel for the appellant has also vehemently argued that the photographs of the house and the lean-to would clearly show that the entire structure including the lean-to had been in existence for decades together and so the contention raised by the plaintiff/respondent that it was encroached upon and an additional structure was put up just prior to filing of the suit, is unsustainable. So far as the appellant is concerned, he claims right only on the strength of the assignment deed executed by the legal representatives of Thala and also by virtue of the assignment deed obtained from the plaintiff. It is also argued by the learned counsel that the appellant has ## **R.S.A. No. 1395/2013** **-7-** perfected his title over the disputed property by adverse possession and limitation. The learned counsel for the respondents submits that such a plea cannot be entertained at all. In view of the fact that the appellant set up title in himself, on the strength of karaima right which his predecessor was having and on the strength of the assignment deed referred to earlier, he cannot turn round and contend that he has acquired title by adverse possession. 10. 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 facts necessary to establish adverse possession. Though we got this law of adverse possession from the British. It is **-8-** ## **R.S.A. No. 1395/2013** 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”. ## 11. 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 illegally taken possession of the property of the true owner. the law ought not to benefit a person who in a clandestine **R.S.A. No. 1395/2013** **-9-** 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”. 12. In the light of what has been stated above, the appellant is not entitled to succeed in this appeal. It is pointed out by the learned counsel for the appellant that if the decree is confirmed the appellant's right to use the ## **R.S.A. No. 1395/2013** **-10-** pathway to his karaima holding will be lost. It was observed by the lower appellate court (in page no.17 towards the end) when such a submission was made before that court, that since the injunction was only against trespass, the right of the appellant to use the way to reach the karaima holding will not be affected. However, since it is not specifically mentioned in the decree drawn up by the appellate court, the lower appellate court will amend the decree showing therein that the decree for prohibitory injunction granted by the courts will not affect the right of the appellant to use the way to reach his karaima holding and also the building and toilet situated in the property of his wife. 13. It is also submitted that there would be a possibility of settlement by exchanging portions of the land. Before ordering execution of the decree, the execution court will explore the possibility of an amicable settlement; **R.S.A. No. 1395/2013** **-11-** whether the karaima holding and the property purchased by the appellant's wife can be shifted to one of the sides, giving alternate site without causing inconvenience to both sides, can be thought of. Similarly, whether equivalent land can be given to the respondents by way of adjustment so as to reduce the grievance of both parties can also be considered in the Mediation, that can be had at the stage of the execution of the decree. In the result this Regular Second Appeal is dismissed subject to what has been stated above. Sd/- ## N.K. BALAKRISHNAN, JUDGE //True Copy// ## P.A. to Judge The words “and also the building and toilet situated in the property of his wife” occurring in the last sentence of paragraph 12 of the judgment dated 19.12.2013 in R.S.A.1395/2013 are deleted as per order dated 10.02.2014 in R.P. 112/2014 in R.S.A. 1395/2013. Sd/Registrar (Judicial) jjj