IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 SA.No. 558 of 1996() -------------------- AS.14/1987 of SUB COURT,KOTTARAKKARA OS.205/1985 of MUNSIFF COURT, KOTTARAKKARA .................... APPELLANT(S): RESPONDENTS-PLAINTIFFS ------------------------------------------------ 1. GOVINDA PILLAI PAHU PILLAI, PALAVILA PUTHEN VEEDU, PADINJATTINKARA MURI, VETTIKKAVALA, MELILA VILLAGE. (DIED) LR'S IMPLEADED AND ALSO RECORDED. 2. KARTHIYAYANI AMMA PANKAJAKSHY AMMA -DO- -DO- BY ADV. SRI.K.K.JOHN RESPONDENT(S): APPELLANTS- DEFENDANTS --------------------------------------------------- 1. ADICHAN KUNJURAMAN, PARAVILA VEEDU, PADINJATTINKARA MURI, VETTIKKAVALA, MELILA VILLAGE 2. USHA, D/O.RAJAMMA OF -DO- 3. VENU, SON OF RAJAMMA OF -DO- 4. REGHU, SON OF RAJAMMA OF -DO- ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE B.S.SWATHIKUMAR N.SUKUMARAN POTTY LR's OF DECEASED FIRST APPELLANT IMPLEADED --------------------------------------------------------- ADDL.A3. P.GOPALAKRISHNA PILLAI, AGED 52 YEARS, S/O.LATE G.PACHU PILLAI 'PRATHEEKAM', CHENGAMANAD P.O. KOTTARAKKARA. ADDL.A4. P.VASANTHAKUMARI AMMA, AGED 50 YEARS, D/O.LATE PACHU PILLAI GREESHMAM, PUTHYAM, KARUKONE P.O. ANCHAL. ADDL.A5:- P.RADHAMONI AMMA, AGED 48 YEARS D/O.LATE G. PACHU PILLAI MADHAVASSERI VEEDU, THALAVOOR, RANDALUMMOODU P.O. KOTTARAKKARA ADDL.A6:- P.SOBHANAKUMARI AMMA AGED 46 YEARS, D/O.LATE G. PACHU PILLAI, PALAVILA PUTHEN VEEDU, NADUKKUNNU CHENGAMANAD P.O. KOTTARAKKARA. ADDL.A7:- P.MOHANAKUMARAN, AGED 46 YEARS S/O.LATE G. PACHU PILLAI PRATHEEKAM, CHENGAMANAD P.O. KOTTARAKKARA. ADDL.APPELLANTS 3 TO 7 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED FIRST APPELLANT AND SECOND APPELLANT IS RECORDED AS ONE OF THE LEGAL REPRESENTATIVE OF DECEASED FIRST APPELLANT AS PER ORDER DATED 15.9.09 IN I.A.NO.1869/09. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A.No. 558 OF 1996 =========================== Dated this the 5th day of February,2010 JUDGMENT Plaintiffs in O.S.205/1985 on the file of Munsiff Court, Kottarakara are the appellants. Respondents are the defendants. On the death of the first appellant, additional appellants 3 to 7 were impleaded as his legal heirs. Plaint schedule property is 70 ½ cents in survey No.264/1 of Melila Village. The property originally belonged to Eravi Sankaran. He had a first wife. Rajamma is the daughter born in that wife. Subsequent to the death of the mother of Rajamma, Eravi Sankaran married Kali Kochayya. While so Eravi Sankaran executed gift deed dated 9.6.1959 whereunder half of the rights were gifted to the wife Kali Kochayya and the remaining half to the daughter Rajamma. First respondent is the husband and S.A.558/1996 2 other respondents are the children of Rajamma. Subsequent to the gift deed, Eravi Sankaran cancelled the earlier gift deed of 10.5.1967 and on the same day executed a gift deed in favour of Rajamma whereunder the entire rights were gifted to Rajamma. Rajamma thereafter executed another gift deed in favour of the first respondent on 13.2.1969. But earlier to the gift deed executed by Rajamma, Kali Kochayya had executed an assignment deed on 12.6.1968, whereunder the rights obtained by Kali Kochayya under 1959 gift deed was transferred to the appellants. Appellants thereafter instituted O.S.264/1971 before Munsiff Court, Kottarakkara seeking partition and separation of one half share in the plaint schedule property. Learned Munsiff rejected the contention of respondents that gift deed of 1969 is only a will and not a gift, but accepted their case that appellants did not obtain possession of the property. As court fee was paid only under section 37(2) of Kerala Court Fees and Suit Valuation Act only a declaration of one half share was granted S.A.558/1996 3 holding that appellants have to institute a suit for recovery of possession of the property. Respondents challenged that judgment before Sub Court, Kottarakkara as A.S.67/1974 contending that the finding of the Munsiff that it is a gift deed and not a testamentary disposition is not sustainable. Learned Sub Judge allowed the appeal and dismissed the suit. Appellants challenged that judgment before this court in S.A.700/1976. By Ext.A1 judgment, this court found that 1959 document is not a testamentary disposition but a gift deed and therefore held that finding of the learned Munsiff that appellants obtained one half right in the plaint schedule property is correct. But it was found that appellants have to institute a suit for recovery of possession of the property as found by the learned Munsiff. O.S.205/1985 was thereafter filed by the appellants before Munsiff Court, Kottarakkara seeking a decree for a declaration of their title and recovery of possession. Learned Munsiff as per judgment dated 14.7.1986 granted a decree declaring the title of S.A.558/1996 4 appellants and granting a decree for recovery of possession of the green shaded plot in Ext.C2 plan attached to Ext.A2 final decree which was passed after Ext.A1. Respondents challenged the judgment before Sub Court, Kottarakkara in A.S.14/1987. Learned Sub Judge on reappreciation of the evidence, found that O.S.264/1971 was filed on 9.10.1971 and the trial court as well as the appellate court and the High Court found that appellants were not in possession of the property on 9.10.1971 and as the present suit was instituted beyond the period of 12 years from that date, the suit is barred by adverse possession as provided under Article 65 of the Limitation Act and allowed the appeal and dismissed the suit. It is challenged in the Second Appeal. 2. Second Appeal was admitted formulating the following substantial questions of law. 1. Whether on the facts and circumstances of the case the finding of the lower appellate court that the suit S.A.558/1996 5 for possession of the property as directed by the decree in O.S.264/1971 providing filing a fresh suit for recovery of possession, is barred by limitation and adverse possession especially when the suit was filed within four years of the decree of the Hon.High Court and within one year from the final decree passed by the trial court, is sustainable. (2) Whether on the facts and circumstances of the case defendants are entitled to claim adverse possession and limitation, when the decree directs institution of a fresh suit for recovery of possession of the share of S.A.558/1996 6 the plaintiffs. 3. Learned counsel appearing for the appellants and respondents were heard. 4. The argument of the learned counsel appearing for the appellants is that though a preliminary decree was passed in O.S.264/1971 on 6.11.1973, the judgment was challenged before the Sub Court in A.S.67/1974 and subsequently before this court in S.A.700/1976 and it was finally disposed only on 19.6.1981 and therefore the institution of the subsequent suit in 1985 should not have been found to be barred by adverse possession and limitation. The argument is that though the trial court directed filing of a fresh suit, when the appellate court set aside the decree and it was restored by this court only on 19.6.1981, appellants are entitled to file a suit within 12 years from the date of the judgment of this court and hence the suit is within time. Learned counsel also argued that when the trial court in O.S.264/1971 found that appellants are co- owners and allotted that share which was confirmed S.A.558/1996 7 by this court in S.A.700/1976 on 19.6.1981, the possession of the respondents cannot be adverse to the appellants, as it was during the pendency of the earlier suit and therefore the findings of the first appellate court is to be set aside. 5. Learned counsel appearing for the respondents pointed out that appellants are only the assignees of one of the donees under 1959 gift deed and they obtained the property only on 12.6.1968, and it was subsequent to the cancellation of the gift originally executed by Eravi Sankaran and therefore possession of the respondents subsequent to the cancellation of the gift deed dated 10.5.1967 and execution of another gift deed in favour of daugher Rajamma can only be adverse to the appellants and the period of limitation would start to run from 12.6.1968 itself. It was also argued that in any case in the earlier suit instituted on 9.10.1971, it was found that appellants are not in possession of the property at least from 9.10.1971 and hence possession of the respondent from that date, as S.A.558/1996 8 they never admitted the rights of the appellants, could only be adverse to the rights of the appellants and therefore the findings of the first appellate court is perfectly correct and warrants no interference. 6. O.S.No.264/1971 was earlier instituted by the appellants seeking partition and separation of their half share. That suit was instituted on 9.10.1971. Though appellants contended that they are co-owners in joint possession of the plaint schedule property and paid court fee under section 37(2) of Court Fees and Suit Valuation Act, the trial court itself found that they were not in joint possession of the property. That finding was not disturbed either by the appellate court or by this court. Therefore it cannot be disputed that atleast from 9.10.1971 appellants were out of possession. There is no case for the appellants that while they were in possession of the property prior to 9.10.1971, they were dispossessed by the respondents. On the other hand, it is the definite case of the respondents that the assignor of the S.A.558/1996 9 appellants Kali Kochayya did not obtain possession of the property and by the assignment deed appellants also did not obtain possession of the property. It is also to be borne in mind that before appellants purchased the rights from Kali Kochayya on 10.12.1968, the donor of 1959 gift deed Eravi Sankaran had executed a registered cancellation deed of 1959 and had executed a fresh gift deed exclusively in favour of Rajamma the daughter who in turn on 13.2.69 executed a settlement deed in favour of her husband first respondent. Being a purchaser of one half right of the property appellants, any bona fide purchaser is expected to go through the encumbrance of the property, including the earlier transfer. If that was verified, they would have definitely known that the donor had cancelled the earlier gift deed and executed another gift deed in favour of the daughter exclusively. Whether the donor is entitled to cancel the gift deed, which has already been accepted and acted upon, is not the relevant question at this juncture. The question is whether S.A.558/1996 10 the possession of Rajamma or the first respondent or respondents subsequent to 1967, could be taken as a joint possession of Kali Kochayya or the appellants. When Rajamma obtained another gift deed cancelling the earlier gift deed, her possession subsequent to 1967 cannot be for and on behalf of Kali Kochayya. If that be so, even when the appellants obtained the property on 12.6.1968 respondents who were in possession of the property were asserting their independent right against Kali Kochayya, the assignor of the appellants. If that be so, the period of limitation would start to run from 12.6.1968. It is more so when appellants have no case that subsequent to 12.6.1968, they were dispossessed. In such circumstances, I find no reason to interfere with the findings of the first appellate court that though under Ext.A1 judgment in S.A.700/1976, this court restored the findings of the trial court in O.S.264/1971 finding that appellants have title to one half of the property, that title has been lost by adverse possession. Therefore appellants are not entitled S.A.558/1996 11 to the decree for recovery of possession originally granted by the learned Munsiff. It was rightly set aside by the first appellate court. There is no merit in the appeal. It is dismissed. No cost. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006