IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 AS.No. 79 of 1995() ------------------- OS.89/1990 of SUB COURT, KASARAGOD .................... APPELLANT/PLAINTIFF: ------------------------- SHIVARAM AGED 58 YEARS, S/O.KARIYA BAIDYA, HINDU, AGRICULTURIST, C/O.P.K.SREENIVASA NOW RESIDING AT NEAR CORPORATION QUARTERS, MANANGUDDE, KODIALBAIL, MANGALORE-3, KARNATAKA STATE. D.K. (EXPIRED ADDL.APPELLANTS 2 TO 4 ARE IMPLEDED AS LEGAL REPRESENTAT8VES OF THE DECEASED APPELLANT AS PER ORDER DT.26/6/03IN IA 484/03) ADDL.APPELLANT 2. SMT.PRABHAVATHI SHIVARAM W/O.LATE B.SHIVARAM, AGED 55 YEARS NO.401, 5TH MAIN, 6TH CROSS, VIVEK NAGAR, BANGALORE-560047. ADDL.APPELLANT 3. MRS.CHANDINI CHITRAVEER, D/O.LATE B.SHIVARAM, AGED 34 YEARS, NO.4/51, KUKKUDADI HOUSE, MAROLIKULSHEKAR.P.O MANGALORE-575 005 ADDL.APPELLANT 4. MRS.MALINI.S., D/O.LATE B.SHIVARAM, AGED 29 YEARS, NO.401, 5TH MAIN, 6TH CROSS, VIVEK NAGAR, BANGALORE 560 047. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN, D.ANIL KUMAR SMT.SATHYA SHREEPRIYA RESPONDENTS/DEFENDANTS: --------------- 1. NARAYANAN AGED ABOUT 53 YEARS, S/O.KARIYA BAIDYA HINDU, AGRICULTURIST. 2. LAXMI ALIAS CHAUKARU, AGED ABOUT 75 YEARS, WIDOW OF KARIYA BAIDYA, HINDU, HOUSE HOLDER. 3. JAGADISHA, AGED ABOUT 29 YEARS S/O.KARIYA, HINDU, AGRICULTURIST. 4. SEETHA AGED ABOUT 33 YEARS, D/O.KARIYA BAIDYA HINDU, HOUSEHOLDER, ALL ARE RESIDING AT BERIKA ON BOVIKANA OF MULIYAR, KASARAGOD TALUK. P.O.MULIYAR. R1, R2 & R4 BY ADV. SRI.D.KRISHNAPRASAD SRI.D.NARENDRANATH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.665/95 & IA 1214/04 IN AS 79/95 DISMISSED 1/4/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ A.S.NO. 79 OF 1995 & cross objection ------------------------------------------ Dated 1st April 2009 JUDGMENT Plaintiff in O.S.89/1990 on the file of Sub court, Kasaragod is the appellant. Defendants are respondents. Suit was filed for recovery of possession of plaint A schedule property on the strength of title. Case of the appellant was that plaint A schedule property originally belonged to his mother Korapalu Hengsu under Ext.A1 sale deed and she died intestate and under Madras Aliyasanthana Act he is the only heir and therefore he has title to the property. It was contended that appellant was minor at the time of the death of his mother and his father Kariya Baidya was acting as his guardian and was managing the property and appellant in search of employment went to Karnataka State and at that time father was permitted to occupy the house and he was managing the property and he was residing with his second wife the second respondent and children AS 79/95 2 respondents 1,3 and 4 and after the death of the father respondents started taking hostile attitude and they trespassed into the property and reduced it into their possession on 2/10/1989 and therefore appellant is entitled to a decree for recovery of possession on the strength of title. 2. Respondents resisted the suit contending that appellant though son of Kariya Baidya is not the son of Korapalu Hengsu but is the son of Pachu, his first wife. It was contended that Korapalu Hengsu was the second wife and Ext.A1 sale deed was sham and nominal document never intended to be acted upon or acted upon and Korapalu Hengsu did not get possession of the property and property continued to be in the possession of Kariya Baidya and he has been in possession of the property and respondents did not trespass into the property and even if appellant has any title, it was lost by adverse possession and limitation. 3. Learned Sub Judge framed necessary issues. On the side of appellant he was examined as PW1 and Exts.A1 to A9 were marked. On the side of respondents first defendant was examined as DW1 and AS 79/95 3 two witnesses were also examined and Exts.B1 to B43 were marked. Commissioner appointed by the court submitted Exts.C1 report and C2 plan. 4. Learned Sub Judge on the evidence found that Kariya Baidya had no wife by name Pachu as claimed by respondents and appellant is the son of Kariya Baidya in his first wife Korapalu Hengsu. But learned Sub Judge further found that Ext.A1 sale deed, though executed in the name of Korapalu Hengsu, was only a sham and nominal document and not intended to be acted upon and was not acted upon as there is no evidence to prove that till the death of Korapalu Hengsu in 1950 she had been in possession of the property. Finding that Kariya Baidya continued to be in possession of the property and after his death respondents are in possession it was found that case of trespass on 2/10/1989 is not correct. Learned Sub Judge therefore found that appellant is not entitled to the decree sought for. Suit was dismissed which is challenged in this appeal. 5. Learned counsel, who originally appeared for respondents relinquished vakalath and thereafter Advocate Sri.V.V.Asokan filed vakalath only AS 79/95 4 for first respondent. Learned counsel appearing for appellants and first respondent were heard. 6. Respondents 1,2 and 4 had filed cross objection challenging the finding of the trial court that appellant is the son of Korapalu Hengsu, contending that the said finding is unsustainable. It was also contended that trial court should have found that title of the appellant, if any, has been lost by adverse possession and therefore suit should have been dismissed on those grounds also. 7. Learned counsel appearing for appellant argued that learned Sub Judge did not properly appreciate the evidence. It was pointed out that Ext.A1 sale deed establish that father of the appellant Kariya Baidya assigned the property in favour of his wife the mother of the appellant and there is no evidence to prove that Ext.A1 was not acted upon or was created as a sham and nominal document. It was pointed out that though it was contended that Ext.A1 was executed to shield the property from the creditors, there is no evidence to prove that there was any debt, so as to execute Ext.A1 to shield the property from the creditors and AS 79/95 5 therefore finding of the learned Sub Judge that it is a sham and nominal document and was not acted upon is not sustainable. Learned counsel also argued that after the death of the mother Korapalu Hengsu, when the appellant was a minor the father as guardian transferred the patta in the name of appellant evidenced by Ext.A2 and that itself establishes that Ext.A1 was acted upon and patta was transferred only under Ext.A1 and the right obtained by appellant is the only legal heir of Korapalu Hengsu and so appellant has title to plaint schedule property. It was argued that finding of the learned Sub Judge that Korapalu Hengsu or appellant was not in the possession of the property was misappreciation of evidence and on the evidence it should have been found that appellant has title to the property and as appellant was in Karnataka State due to his employment, the property was being managed by the father, who died only in 1985 and suit for recovery of possession was instituted in 1990 and it cannot be barred by adverse possession and limitation as respondents are claiming right only under Kariya Baidya which could only be after 1985. It is therefore argued that appellant is AS 79/95 6 entitled to a decree for recovery of possession. 8. Learned counsel appearing for first respondent argued that though there is no documentary evidence to prove that appellant is the son of Pachu, learned Sub Judge should not have relied on Ext.A3 to hold that appellant is son of Korapalu Hengsu. It was also argued that appellant is the son of Pachu, the first wife of Kariya Baidya. Learned counsel also argued that there is no evidence to prove that Korapalu Hengu obtained possession of the property under Ext.A1 or has been in possession of the property till her death and therefore finding of the learned Sub Judge that Ext.A1 was only a sham and nominal document was perfectly correct. It was argued that tax receipts produced by the appellant are obtained subsequent to the institution of the suit or just prior to the institution of the suit and appellant has not produced any document to prove that he has been in possession of the property after the death of Korapalu Hengsu and in view of the possession which continued with the father as well as respondents, even if appellant has title it is lost by adverse possession and limitation. AS 79/95 7 9. Following points arise for consideration. 1) Whether appellant is the son of Kariya Baidya in Korapalu Hengsu or whether Kariya Baidya had a wife by name Pachu and if so, whether appellant is the son of Pachu. 2) Whether appellant has title to the plaint A schedule property under Ext.A1. 3) If appellant has title, whether the title was lost by adverse possession and limitation. 10. Respondents did not dispute the fact that appellant is the son of Kariya Baidya. Second respondent is the second wife of Kariya Baidya and other respondents are the children of Kariya Baidya in second respondent. Though respondents contended that Kariya Baidya had a first wife by name Pachu, apart from the allegations, there is no acceptable evidence to prove that Kariya Baidya had a wife by name Pachu. In Ext.A1 admittedly executed by Kariya Baidya Korapalu Hengsu, the wife was not referred as second wife. But in Ext.A8 registered will executed by Kariya Baidya in favour of second respondent and their AS 79/95 8 children, second respondent was specifically referred as the second wife. If in fact there was a first wife by name Pachu, Kariya Baidya would have referred Korapalu Hengsu as the second wife in Ext.A8. In the absence of any other evidence learned Sub Judge was justified in finding that Kariya Baidya had no wife by name Pachu and Korapalu Hengsu is his first wife and second respondent the second wife. 11. Though respondents contended that appellant was not the son of Korapalu Hengsu and was the son of Pachu, there is no evidence even to prove that Kariya Baidya had a wife by name Pachu or that mother of appellant was Pachu. As it is admitted that appellant is the son of Kariya Baidya, it can only be found that he is the son of Korapalu Hengsu as nobody has a case that he is the son of the only other wife the second respondent or Kariya Baidya had any other wife. More over, Ext.A3 notice issued from the Land Acquisition Court shows that appellant is the son of Korapalu Hengsu. In such circumstances, learned Sub Judge was perfectly justified in finding that appellant is the son of Korapalu Hengsu. 12. Ext.A1 sale deed was executed by AS 79/95 9 Kariya Baidya in favour of his wife Korapalu Hengsu on 20/5/1935. It is a registered sale deed. Ext.A1 shows that property transferred thereunder is a Government darkhas land. Ext.A1 also shows that after receiving the consideration previously the husband assigned the property in favour of his wife. Execution of Ext.A1 is not disputed. What was contended was only that it was sham and nominal document and was never intended to be acted upon or was not acted upon. As Ext.A1 is a registered assignment deed, it is for the respondents to establish that it was not acted upon or it was sham and nominal document. Though it was contended that Kariya Baidya was in debts and in order to shield the property from creditors, he had executed Ext.A1 there is no evidence to prove that there was any debt or debtors to Kariya Baidya or it was necessary to shield the property from creditors. First respondent, who was examined as DW1 has no personal knowledge about any debt or debtors. There is absolutely no evidence to prove that any debt was outstanding, so as to create a sale deed in respect of the properties to shield it from the creditors. No other circumstances to create a sham and nominal AS 79/95 10 assignment deed or to show that it was not intended to be acted upon was adduced. 13. Learned Sub Judge found Ext.A1 a sham and nominal document, for the reason that subsequent to Ext.A1 sale deed of 1935, Korapalu Hengsu died only in 1950 and there is no evidence to prove that she has been in exclusive possession of the property. When the property is assigned to his wife by the husband, so long as there is no separation in between them, it cannot be said that the wife is to be in exclusive possession of the property. When the husband and wife are living together, possession of the property thereafter could only be as that of the wife even if, the husband was also residing along with wife. More over, there is no evidence to prove that from the date of execution of Ext.A1, till the death of Korapalu Hengsu, the assignor Kariya Baidya was treating the property covered under Ext.A1 as his property or that Ext.A1 was only a sham and nominal document or that he was in exclusive possession. It is admitted case that subsequently under Ext.A8 registered will bequeathed his properties in favour of respondents 1,2 and 4. If, in AS 79/95 11 fact plaint schedule property was treated as property of Kariya Baidya, as Ext.A1 was a sham and nominal document, in the ordinary course he would have definitely included the plaint schedule property also in Ext.A8 or would have stated reasons for its exclusion. If Ext.A1 sale deed was executed as a sham document to shield that property, it is not known why the properties covered under Ext.A8 were also not attempted to be shielded by creating sale deed. That itself shows that plea of a creation of a sham and nominal document is without any basis. More over, subsequent to the death of Korapalu Hengsu, Ext.A2 establishes that patta in respect of the property was registered in the name of the appellant and that too at the time when he was only a minor with the father as guardian. If Ext.A1 was created by the father as a nominal document and was never intended to be acted upon, patta would not have been transferred to the name of his son. The son could have derived title after the death of the mother, only if, she has exclusive title to the property. Unless Ext.A1 sale deed was acted upon the patta would not have transferred to the name of the appellant and that too AS 79/95 12 at a time when he was minor. Unfortunately, these aspects were not properly considered by the learned Sub Judge. 14. It is pertinent to note that respondents have no case that during the life time of Kariya Baidya he had transferred his property in their favour or that they have been in exclusive possession of the property as against interest of Kariya Baidya, if he had an interest. Kariya Baidya died only in 1985. Learned Sub Judge relied on Exts.B1 to B43 building tax receipts and tax receipts etc. and found that respondents have been in exclusive possession of the property and appellant did not get any right in the property. It is the specific case of the appellant that after the death of the mother, father Kariya Baidya was managing the property. When he went to Karnataka State in search of employment it was being looked after by the father. It is also admitted case that father had contracted a second marriage and respondents are the second wife and their children who were living with the father. Therefore, payment of tax or building tax by respondents could not have been adverse to the AS 79/95 13 interest of the appellant as they have no case that they have paid those tax as asserting a hostile right on themselves till the death of the father. On the other hand their case itself is that Ext.A1 is a sham and nominal document and father continued to be the owner and father died only in 1985. Suit was filed in 1990. Therefore, even if it is taken that respondents have been in possession of the property asserting hostile title, against appellant subsequent to the death of the father, it could only be subsequent to 1985. As the suit was instituted in 1990, respondents could not claim title perfected by adverse possession as their possession could not be from the appellant. In such circumstances, respondents are not entitled to contend either that appellant has no title or that the title has been lost by adverse possession and limitation. In such circumstances, appellant is entitled to decree for recovery of possession. 15. Ext.C2 report shows that Commissioner has assessed total income of the property at Rs.1,000/- from the coconut trees and Rs.2,800/- from areca trees deducting cultivation expenses. As respondents are admittedly in possession of the AS 79/95 14 property and taking income, appellant is entitled to get mesne profits for three years prior to the institution of the suit. But in the plaint appellant has claimed past mesne profit of only Rs.3,500/-. Appellant is therefore entitled to a decree for realisation of past mesne profits of Rs.3,500/- prior to the date of the suit and thereafter at the rate of Rs.2,000/- per annum till realisation with 6% interest from the date of the suit. 13. Appeal is allowed. Decree and judgment passed by Sub Judge, Kasaragod in O.S.89/1990 is set aside. Suit is decreed. Respondents are directed to surrender vacant possession of plaint schedule property within two months. Plaintiff is also entitled to past mesne profit at the rate of RS.2,000/- per annum from the date of the suit and Rs.3,500/- towards past mesne profits Cross objection is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. AS 79/95 15 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT A.S.79 OF 1995 1st April 2009 ============================