IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 AS.No. 71 of 1999(C) -------------------- OS.224/1995 of SUB COURT, THIRUVALLA .................... APPELLANT/DEFENDANT: ---------------------------------------- PHILIPOSE THOMAS, AGED 48, MALAYIL VEEDU, NEDUMBRAYAR MURI, THOTTAPUZHASSERY VILLAGE. BY ADV. SRI.JAMES KURIAN SRI.M.P.GOVINDAN NAIR RESPONDENT/PLAINTIFFS: ---------------------------------------- 1.MATHEWS MATHAI, AGED 54, THENGUMTHOTTATHIL, KURIYANNOOR MURI, THOTTAPUZHASSERY VILLAGE. *2. THOMAS MATHAI, AGED 62 YERS, (EXPIRED) -D0- 3. THOMAS, AGED 60 YEARS, -DO- 4. MARIYAMMA THOMAS, AGED 58 YEARS, -DO- 5. SARAMMA CHERIYAN, AGED 52 YEARS, -DO- 6. SUSAN KARIMBIL, AGED 46 YEARS, -DO- ADDL.R7. MR.P.K.ALEXANDER, PEEDIKAPARAMBIL HOUSE, DEVALOKAM, KOTTAYAM. ( IMPLEADED, AS ADDITIONAL R7 AS THE POWER OF ATTORNEY HOLDER OF RESPONDENTS 1 TO 6 EXCEPT THE 2ND RESPONDENT VIDE ORDER DT.15/10/2010 IN I.A 2197/2006.) AS.No. 71 of 1999(C) ADDL.R8: MR.TOM MATHAI Jr., AGED ABOUT 35 YEARS, S/O LATE THOMAS MATHAI, PEEDIKAPARAMBIL HOUSE, DEVALOKAM P.O, KOTTAYAM NOW RESIDING AT 33 HILL ROAD, GREENWICH, CONNECTICUT, U.S.A ADDL.R9: MS. MICHELLE SARA MATHAI, AGED 33 YEARS, D/O LATE THOMAS MATHAI, PEEDIKAPARAMBIL HOUSE, DEVALOKAM P.O, KOTTAYAM P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - A.S.No. 71 of 1999 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of September, 2011 J U D G M E N T The defendant who suffered a decree in OS 224/1995 before the Sub Court, Thiruvalla is the appellant. 2. The parties and facts are hereinafter referred to as they are arrayed before the trial court. 3. The plaint schedule property admittedly belonged to the father of plaintiffs, who obtained it under Exts.A3 and A4. The averment in the plaint was that since the first and second plaintiffs had to go abroad in search of the employment, property was being looked after by their mother after the death of their father. In 1985, when the mother of the plaintiffs passed away, her sister-in-law took over the management of the property and when she became old, the defendant put in management of the property. Since the plaintiffs were residing far away from the property and could not be in management of property physically, they let the defendant to continue the :2: A.S.No. 71 of 1999 management of the property on their behalf. The plaintiffs later wanted to sell the property. The allegation is that the defendant offered to purchase the same. When the price was proposed by the plaintiffs, it is claimed by the plaintiffs that the defendant began to assert independent rights in derogation of the rights of the plaintiffs and that has necessitated the suit. 4. Pointing out that the defendant had no manner of right over the suit property, the suit was laid for necessary reliefs. 5. The suit was resisted by the defendant. Shorn off unnecessary details, the core contention was that, ever since 1956 the father of the defendant had been in absolute possession and enjoyment of the property and after the defendant obtained majority in 1964 he took over the management of the property and after his marriage in 1970 he was enjoying the property as if he was the absolute owner of the same. According to the defendant at no point :3: A.S.No. 71 of 1999 of time either the plaintiffs or their predecessors in interest had exercised any possession or enjoyment over the suit property. It is also contended that in 1970, when the mother of the plaintiffs attempted to assert rights over the suit property that was effectively repelled by the defendant who continued to be in possession and enjoyment of the property as if it belongs to him. He also contended that he had reclaimed the property and made vast improvements in the suit property. In short, his contention was that if at all the plaintiff had any manner of right, that has been lost by adverse possession and limitation. 6. On the above pleadings issues were raised. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1 to A9 from the side of the plaintiffs. The defendant had DWs 1 to 7 examined and Ext.B1 to B2 series marked. Exts.C1 and C1(a) are the Commissioner’s report and plan. The trial court on an analysis of the evidence came to the conclusion that the :4: A.S.No. 71 of 1999 defendant had miserably failed to establish his plea of adverse possession and limitation and therefore granted a decree in favour of the plaintiffs. That brings the defendant before this Court. The sole question that arises for consideration is whether the finding of the court below that the defendant was unsuccessful in establishing his plea of adverse possession and limitation is correct? 7. It is an admitted fact that the property belonged to the father of the plaintiffs. He died in 1959 and plaintiffs would say that since the first and second plaintiffs had to go abroad in search of employment, after the death of their father, their mother took over the management of the property and continued to be in management till she died in 1985. Thereafter the allegation is that the sister-in-law of their mother took over the management and thereafter the defendant was put in management of the property. Their allegation was that the management of the property was being carried on by the defendant for and on behalf of the :5: A.S.No. 71 of 1999 plaintiffs and he had no independent right over the property. The defendant however contended that at no point of time either the plaintiffs or their predecessors in interest had exercised any acts of ownership over the property and it was never in the possession of the father of the plaintiffs. At all points of time defendant is exercising acts of possession as if the property belongs exclusively to him. 8. The learned counsel appearing for the appellant stressed that the plaintiffs have deliberately kept away from the box fearing that if they mounted the box the true story would come out and this deliberate act of the plaintiff, in keeping away from the box calls for an adverse inference to be drawn against him. They have chosen to examine the power of attorney holder on their behalf who is incompetent to give evidence regarding certain vital aspects regarding the rights over the property. In support of his contention that the evidence of the power of attorney holder is :6: A.S.No. 71 of 1999 insufficient in such cases, the learned counsel relied on the decision reported in Janki Vashdeo V.Indusind Bank [2005(2) KLT 265], Ummer Farooque V.Naseema 2005 (4) KLT 565 and Joseph Mathew V.Jose [Thomas 2005 (4) KLT 764]. The learned counsel also stress that the court below has erred in holding in favour of the plaintiffs mainly because the defendant had failed to establish his case. According to the learned counsel the lower court seems to have forgotten that it was a suit based on title and the entire burden was on the plaintiffs to prove their title and their right to property and any weakness in the defendant’s case cannot enure to the benefit of the plaintiff. In support of the said contention the learned counsel relied on the decision reported in Narayan Iyer Vs.Vella [1988 (1) KLT 856] and Moran Mar Baselious Catholic V. Most Rev. Mar Poulose Athanasius and others [AIR 1954 SC 526]. According to the learned counsel, the lower court has misdirected itself both on facts and in law and :7: A.S.No. 71 of 1999 that has resulted in a erroneous decree being passed by the court below. 9. Per contra, the learned counsel appearing for the respondent pointed out that the plea of the defendant being one of adverse possession and limitation the plaintiff was relieved of the burden of proving title to the suit property. It is trite according to the learned counsel that once the defendant sets up the plea of adverse possession and limitation, it is for him to establish his case and the plaintiff has no burden to show that the title of the property since it is admitted in the claim for adverse possession and limitation. The learned counsel also drew the attention of this Court that the parties are close relatives and in such cases the degree of proof required to substantiate the claim for adverse possession and limitation is considerably of high standard and the court below has found that the defendant has failed to establish his claims. According to the learned counsel no grounds are made out to interfere with the :8: A.S.No. 71 of 1999 judgment and decree of the court below and the appeal is the only one to be dismissed. 10. At the outset itself, it must be notice that the title of the plaintiff is admitted. The plaintiffs have produced Exts.A3 and A4 which clearly show that the property was acquired by the father of the plaintiffs. The plaintiffs would say that the defendant was only managing the property on their behalf. According to the defendant the plaintiffs or their predecessor had never exercised any acts of ownership or possession of the suit property and in fact his case is that in 1956, his father came into possession of the property and that thereafter he assumed possession of the property after attaining majority and came into exclusive possession in 1970 when he got married. One must remember here that in 1956 the father of the plaintiff was alive. It is difficult to accept the version given by the defendant that in 1956 his father would have assumed possession in delegation of the rights of the father of the :9: A.S.No. 71 of 1999 plaintiffs. The lower court has noticed the inconsistencies in the contentions of the defendant and his evidence and has found that the story put forward by the defendant is highly improbable. 11. The oral evidence adduced by the defendant assumes considerable importance in this regard. The defendant examined himself as DW1. He says that the property was in the possession of his father from 1956 till 1964 and from 1964 till 1970 in their joint possession and thereafter in his exclusive possession. He would further state that in 1970, when the mother of the plaintiff tried to assert certain rights over the suit property, her claims were repelled and it was made clear that the defendant was claiming in derogation of the rights of the plaintiffs. However he would admit in his evidence that the title to the property belongs to the plaintiffs. He would also admit that the tax in respect of property was paid in the name of the mother of the plaintiffs. He would however claim that the :10: A.S.No. 71 of 1999 entire improvement in the property were made either by his father or himself and the plaintiffs had not affected any improvement in the suit property. He also examined a few witnesses who claimed to have worked for him and in effecting the improvements. It is also true that he has examined two other independent witnesses to show that he has been in possession of the property. 12. His claim of possession will have to be viewed in the light of the claims made by the plaintiffs in the plaint. They would say that the defendant being their close relative and they being unable to personally manage the property, the management of the property was entrusted on the defendant and he was in possession of the property in that capacity. The fact remains that the tax in respect of the property was paid in the name of the mother of the plaintiff. 13. One may recall here that the plea of the defendant is one of the adverse possession and limitation. The burden is entirely in him to establish the said claim. As rightly :11: A.S.No. 71 of 1999 pointed out by the learned counsel for the respondent when a plea of adverse possession is made against a relative the burden become more honourous and there has to be clinching evidence to show that there has been claim of hostile possession in derogation of the rights of the true owner and to his knowledge. It is interesting to note that in spite of claim made by the defendant that he has perfected title by adverse possession and limitation, he has not been able to produce even a single document to show that either he or his father had claimed rights over the suit property in derogation of the rights of the true owner. 14. In the light of the fact that the defendant had admitted the title of the plaintiff the burden of proof on the plaintiffs reduced to a considerable extent. Therefore the cross examination of the plaintiff as such may not assume any of the plaintiff much importance or significance. The power of attorney holder examined on their behalf has spoken about the case of the plaintiffs. Admittedly the :12: A.S.No. 71 of 1999 possession is with the defendant, since the suit is one for recovery of possession. But the plaintiffs are explained how the defendant had come into possession and it became necessary for them to seek recovery of possession in the suit. 15. The defendant on the other hand asserted right in himself and it was for him to establish the said fact. 16. The trial court has taken note of the Ext.A5 which the plaintiff claim was a telegram sent by the defendant to one of the plaintiff. it is true that the defendant denied having send any such telegram. But the lower court has taken note of testimony of defendant where initially he admitted that he had sent a telegram and realising the folly immediately denied the same. The lower court has also taken note of the attitude of the defendant displayed in another litigation, though may be totally unconnected with the present litigation. These facts had taken along with the fact that there was no absolutely no documentary evidence :13: A.S.No. 71 of 1999 whatsoever to show that the defendant had ever asserted any right in derogation of the right of the plaintiff had compelled the court below to take the view that the plea of adverse possession and limitation is not substantiated. 17. The trial court has also taken note of the fact that when in 1970 the mother of the plaintiff tried to assertain the trite of the property, her claim was repelled by the defendant at that time one Chandy had intervened and had tried to pacify the mother of the plaintiff. The lower court has rightly noticed that if that be so the examination of that witnesses would have been much help in resolving the controversy. These aspects have been taken note of by the court below to doubt the versions given by the defendant. The lower court has also taken note of the fact that a portion of the property had been mortgaged of which the defendant was totally unaware of. The absence of any documentary evidence and the unconvincing explanation offered by the defendants, are some of the materials :14: A.S.No. 71 of 1999 persuaded the court below to take the view against the defendant. There is also no evidence in this case at all to show that the defendant has been taking the income of the property and appropriating the entire income for himself. Going by the version given by the witnesses, the property is a high yielding one and there would have been materials to show that the defendant was actually taking the income appropriating in the same or in other words there would have been some evidence to show that the defendant was taking income from the property as if it belongs to him and denied the share of income of the plaintiff thereby clearly indicating that he had been disputing the right of the plaintiff over the property. One must recollect here that the claim of the defendant is that he and his father have owned the property from 1956 onwards. The suit is of the year 1995. There would have been some records of materials to show that, if as a matter of fact the defendant was holding the property in derogation of the rights of the plaintiff he :15: A.S.No. 71 of 1999 was asserting title in himself. In the absence of any such evidence, the trial court was perfectly justified in coming to the conclusion that the defendant has miserably failed to establish the plea of adverse possession and limitation. 18. It could not be said that the view taken by the trial court is either perverse or unwarranted by the evidence on records, warranting interference at the appellate state. The result is that this appeal is without merits and this is liable to be dismissed. I do so and however there will be no order as to costs.- P.BHAVADASAN JUDGE kkj