IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 SA.No. 530 of 1995(D) ----------------------------------- AS.84/1992 of DISTRICT COURT, KOLLAM OS.457/1988 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANT/2nd RESPONDENT/2nd DEFENDANT: PADMANABHAN ACHUTHAN, ACHUTHALAYAM, VARAVILA MURI, CLAPPANA VILLAGE. BY ADV. SRI.B.KRISHNA MANI SRI.V.PREMCHAND SRI.L.MOHANAN RESPONDENT/APPELLANT/1st RESPONDENT/ PLAINTIFF & 1st DEFENDANT: 1. KRISHNAN SREEDHARAN, KANIYAM PARAMBIL VEEDU, CLAPPANA VADAKKU MURI, CLAPPANA VILLAGE. 2. PADMANABHAN MUKUNDAN, NILACKAL PUTHEN VEEDY, VARAVILA MURI, CLAPPANA VILLAGE. ADV. SRI.S.SREEKUMAR(CAVEATOR)FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- S.A.No.530 of 1995 -------------------------- JUDGMENT Second defendant in O.S.No.457/1988 on the file of Munsiff's Court, Karunagappally is the appellant. First respondent is the plaintiff and second respondent, the first defendant in the suit. The suit was filed for declaration of title and recovery of possession and injunction. Plaint schedule property is the western 23.152 cents, being the balance of 33.152 cents, which remained after formation of a road on the southern most 7.848 cents of a plot, which was having a total extent of 41 cents, comprised in Sy.No.5998/A, having an extent of 7 cents, in Sy.No.5998/B, having an extent of 5 cents, in Sy.No.5998/C, having an extent of 7 cents and in Sy.No.5998/D, having an extent of 22 cents. Plaint schedule property is shown 2.02 ares in Sy.No.5998/B, 2.83 ares in Sy.No.5998/C and 8.90 ares in Sy.No.5998/D. SA 530/95 2 Case of the first respondent was that plaint schedule property was outstanding in his possession as a cultivating tenant on a lease granted by the landlord. While so, as per Exhibit A8 order in S.M.P.No.19/1975, Land Tribunal assigned jenm right in his favour and Exhibit A1 purchase certificate was issued and he has, thus, title to the plaint schedule property. It is contended that first respondent borrowed Rs.10,000/- from the second respondent/first defendant in 1974 as per two cheques dated 3.7.1974 and 4.9.1974 and put the plaint schedule property in the possession of the second respondent as security for the loan, agreeing to repay the same and thus, second respondent has been in possession of the property since then. While so, Kunji Pillai, who had no subsisting right over the property, executed Exhibit A3 sale deed (Exhibit B1 being its original) in favour of the second respondent on 19.8.1976 as if the plaint schedule property was SA 530/95 3 assigned to the second respondent and second respondent, later, under Exhibit B3 sale deed, assigned that property in favour of the appellant and the appellant or the second respondent has no manner of right over the plaint schedule property and therefore, first respondent is entitled to a decree for recovery of possession of the property on the strength of title. Second respondent remained absent and was set ex parte. 2. Appellant, through third defendant, Power of his Attorney Holder, filed a written statement, contending that there was no loan transaction as alleged in the plaint and first respondent was not a tenant of the plaint schedule property and he has never been in possession of the property and the property was originally in the possession of Velutha Kunjan and under Exhibit B2 sale deed dated 11.1.1967, the property was assigned in favour of Palavilayil Narayanan by the legal heirs of Velutha Kunjan. On the death of Palavilayil Narayanan in SA 530/95 4 1972, his rights devolved on Kunji Pillai. Kunji Pillai assigned the plaint schedule property in favour of second respondent under Exhibit B1 in 1976. While he has been in possession of the property, second respondent assigned the property in favour of the appellant under Exhibit B3 sale deed in 1986. Appellant has been in possession of the property as its absolute owner and hence, first respondent is not entitled to the decree sought for. It is also contended that the remaining ten cents was also assigned by Kunji Pillai in favour of Sree Narayana Smaraka Sthapanam and even if first respondent has any title to the property, it is lost by adverse possession and limitation. 3. Learned Munsiff, on the evidence of PWs 1 to 5, DW1, Exhibits A1 to A9, B1 to B3 and X1 to X3, dismissed the suit finding that title of the first respondent has been barred by adverse possession, as according to the first respondent, he has not been in possession of the property from 5.9.1974 SA 530/95 5 onwards. 4. First respondent challenged the judgment and decree before District Court, Kollam in A.S.No. 84/1992. Learned District Judge, on re-appreciation of evidence, found that defendants are claiming right to the property under Exhibit B1 sale deed, executed by Kunji Pillai and when Exhibit B1 sale deed was executed in 1976, Kunji Pillai had no subsisting right over the property, as under Exhibit A1 purchase certificate, the title has already been vested with the first respondent and defendants claimed possession only from 1976 and therefore, they have not perfected title by adverse possession and hence, first respondent is entitled to the recovery of possession on the strength of title. The said decree and judgment are challenged in this second appeal. 5. Second appeal was admitted formulating the following substantial questions of law: SA 530/95 6 1. Was the lower appellate court right in holding that Exhibit A1 purchase certificate is not vitiated by fraud and collusion, without discussing the evidence on record? 2. Whether the finding that Exhibit A3 is a sham document can be justified when the evidence clearly indicate that plaintiff has never obtained possession and the leasehold right set up by him is not substantiated? 3. Whether the first appellate court was justified in declaring the rights of the plaintiff, when the oral mortgage and the money transaction was found against? 4. Is not clear that Exhibits A1, A8 and A9 are the out come of fraud and collusion? 6. Learned counsel appearing for the appellant and first respondent were heard. 7. Argument of the learned counsel appearing for the appellant is that though first respondent contended that he was a lessee of the plaint schedule property and Exhibit A1 purchase certificate, which was granted under Exhibit A8 order of the Land Tribunal was issued pursuant to Exhibit A9 joint petition filed with the landlord and as there is no evidence to prove that there was SA 530/95 7 a subsisting lease, the courts below should have found that Exhibits A1, A8 and A9 are all vitiated by fraud and collusion and therefore, null and void. Learned counsel argued that though first respondent contended that there was an oral mortgage, the trial court and the first appellate court disbelieved the same and in such circumstances, possession with the appellant stands unexplained and that possession could only be under Exhibit B2, which in turn, was under Exhibit B1 and therefore, the finding that first respondent has title to the plaint schedule property is unsustainable. Learned counsel argued that when Exhibits A1, A8 and A9 are vitiated by fraud and therefore invalid, the finding that first respondent has title to the property is unsustainable and hence, the decree is to be set aside. Learned counsel also argued that, in any case, when the plaint itself discloses that first respondent was put in possession of the property in SA 530/95 8 1974, which was not proved, possession of the second respondent relates back to 1974 and if that be so, as the suit was filed in 1986, first respondent has been out of possession for more than twelve years and so, a decree for recovery of possession cannot be granted and therefore, learned District Judge should not have interfered with the finding that title of the first respondent is barred by adverse possession and limitation. 8. Learned counsel appearing for the first respondent pointed out that it was under Exhibit A7 the remaining ten cents of property was assigned by Kunji Pillai, the landlady, in favour of Sree Narayana Smaraka Sthapanam in 1971. In Exhibit A7 there is a specific recital that there was a lease earlier and first respondent has been in possession of the property as a tenant and the property assigned under Exhibit A7 was the remaining property and therefore, there is evidence to prove that first respondent was a cultivating tenant of SA 530/95 9 the plaint schedule property. It was also pointed out that Exhibit A9 joint statement was filed by Kunji Pillai and accepting Exhibit A9, Exhibit A8 order was passed. Pursuant to Exhibit A8, Exhibit A1 purchase certificate was issued, which is a conclusive evidence with regard to the title and therefore, the finding of the first appellate court that first respondent has title to the property is perfectly correct. It was also argued that so long as Exhibit A1 purchase certificate was not set aside by filing an appeal or a decree was obtained declaring it as vitiated by fraud, appellant cannot challenge the title obtained by the first respondent under Exhibit A1 and therefore, the appeal is only to be dismissed. Learned counsel also argued that when the plaint schedule property was in the possession of the cultivating tenant before 1.1.1970, as is clear from Exhibit A7 and the jenm right vests with the Government on 1.1.1970, Kunji Pillai cannot assign the property SA 530/95 10 under Exhibit B1 and on that ground also appellant cannot claim any right over the property. 9. It is admitted by both the parties that plaint schedule property originally belonged to Palavilayil Narayanan. It is the case of the first respondent that on the death of Palavilayil Narayanan, his rights devolved on his surviving widow Kunji Pillai. Exhibit A7 sale deed executed by Kunji Pillai, in respect of the remaining ten cents, establishes that the remaining property, except the property covered under Exhibit A7, was outstanding in the possession of the first respondent as a tenant. Therefore, the case of the appellant that there is no evidence to prove that first respondent was a tenant will not stand. It is more so when the assignor of the second respondent herself filed Exhibit A9 joint statement under Section 72(J) of Kerala Land Reforms Act admitting the lease in favour of the first respondent. It was accepted by the Land Tribunal. Under Exhibit A8 SA 530/95 11 order, the jenm right was assigned in favour of the first respondent. Exhibit A1 purchase certificate was issued thereafter, which is the conclusive evidence, with regard to the title. First of all, when the plaint schedule property was outstanding in the possession of a cultivating tenant, entitled to the protection under Kerala Land Reforms Act, as on 1.1.1970, the jenm right vested with the Government. Thereafter, Kunji Pillai, the landlady, had no right to assign the property to the second respondent. Moreover, when the assignor Kunji Pillai herself, admitting the tenancy, filed Exhibit A9 joint statement before Land Tribunal and accepting the joint statement, Exhibit A8 order was passed, Kunji Pillai had no subsisting right thereafter to assign the property under Exhibit B1. Therefore, based on Exhibit B1, neither the second respondent nor the appellant is entitled to claim any title to the property. Hence, on the evidence, the finding of the learned District Judge that SA 530/95 12 first respondent has title to the plaint schedule property is perfectly correct and is in accordance with evidence. Though there is force in the submission of the learned counsel appearing for the appellant that learned District Judge was not justified in rejecting the argument advanced by the appellant on the ground that no cross objection was filed, as a defendant, who succeeded before the trial court, is entitled to challenge the findings as against him in the appeal filed by the plaintiff even without filing a cross objection, on the evidence, I find no substance in the argument that first respondent has no title to the property. 10. Then the only question is whether the title of the first respondent has been lost by adverse possession. The burden is, definitely, on the appellant to establish that he has been in possession of the property for more than twelve years prior to the institution of the suit and that too as the true owner to the knowledge of the first SA 530/95 13 respondent and thereby, perfected his title. Even, according to the appellant, he obtained the property only in 1986. Assignor of the appellant, the second respondent, obtained the property only in 1976. The suit has been filed within twelve years from that date. Therefore, appellant cannot perfect title by adverse possession. Moreover, it is absolutely clear from the evidence that the property has been in the possession of the first respondent, as a tenant even in 1971, as reiterated in Exhibit A7 and subsequently, the assignor, under Exhibit B1, admitting the tenancy, had agreed to assign the jenm right by filing Exhibit A9 joint statement before the Land Tribunal. Hence, that landlord could not have transferred possession under Exhibit B1 to the second respondent. Therefore, appellant did not establish that he, exclusively or along with the second respondent, has perfected title by adverse possession. It is not the law that when a suit is instituted for SA 530/95 14 recovery of possession on the strength of title, plaintiff has to prove his possession within a period of twelve years before the date of filing the suit, as was the case with Article 141 of Limitation Act, 1908. When it is proved that first respondent has title to the property and the defendants failed to establish that they have been in exclusive possession of the property, in derogation of the rights of the plaintiff, plaintiff is entitled to recover possession of the property as granted by the trial court. 11. But, one thing still remains. Even according to the plaint allegations, plaint schedule property was put in possession of the second respondent as security for Rs.10,000/- obtained by the first respondent from the second respondent. First respondent has no case that the said amount was ever repaid to the second respondent, though the said loan transaction was denied by the appellant, second defendant and first SA 530/95 15 defendant did not appear or deny that factum. Therefore, even according to the plaint allegations, plaint schedule property was put in the possession of the second respondent, as security of Rs.10,000/- borrowed from the second respondent on the agreement that the interest of that amount is to be realised by taking usufructs from the plaint schedule property. Even though first respondent may not be liable to pay interest for the amount, he is, definitely, liable to pay Rs.10,000/- due to the second respondent before seeking delivery of possession. As second respondent has assigned his rights in favour of the appellant, appellant is entitled to receive that amount. Therefore, before taking delivery of the property, appellant has to deposit Rs.10,000/- before the Executing Court or it should be paid to the first respondent and produce the receipt. To that extent, the decree passed by the learned District Judge is to be modified. SA 530/95 16 Appeal is allowed in part. While confirming the judgment and decree passed by the District Judge, Kollam in A.S.No.84/1992 and upholding the judgment and decree for recovery of possession, it is made clear that before taking delivery of the property, appellant shall deposit Rs.10,000/- before the Execution Court and being the assignee of the second respondent, appellant/second defendant is entitled to withdraw that amount. Parties are directed to bear their respective costs. 4th February, 2010 (M.Sasidharan Nambiar, Judge) tkv SA 530/95 17 M.Sasidharan Nambiar, J. -------------------------- S.A.No.530 of 1995 -------------------------- JUDGMENT 4th February, 2010