IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 SA.No. 625 of 2002(G) ------------------------------ AS.99/1997 of III ADDL. DISTRICT COURT, KOLLAM OS.190/1991 of MUN-MAGI COURT, SASTHAMCOTTA .................... APPELLANT(S): RESPONDENTS-DEFENDANTS ------------------------- 1. LAKSHMI BHARGAVI, VARUVIL HOUSE, PULIKULAM MURI, SOORANADU NORTH VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. 2. RAJAN S/O. BHARGAVI, DO. DO. 3. NALINI W/O. RAJAN, DO. DO. 4. BABU S/O. BHARGAVI, DO. DO. 5. BHAVANI D/O. BHARGAVI, DO. DO. 6. VIKRAMAN S/O. BHARGAVI, DO. DO. 7. GOPALAN ACHARY S/O. KRISHNAN ACHARY, DO. BY ADV. SRI.P.S.KRISHNA PILLAI RESPONDENT(S): APPELLANT/PLAINTIFF ----------------------- KAVIDASAN S/O. RAMAN,CHITTAKKATTU VEEDU, MEMANA MURI, KRISHNAPURAM VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT. R1 BY ADV. SRI.K.BABU THOMAS SRI.DENNING K.BABU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 625 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July, 2010. JUDGMENT The defendants in O.S. No. 190 of 1991 before the Munsiff's Court, Sasthamcota, who succeeded before the trial court, but who suffered a decree at the hands of the lower appellate court are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff claimed that the plaint schedule property belonged absolutely to him as per Ext.A1 dated 7.12.1970. Ever since the sale deed in his favour, he has been in absolute possession and enjoyment of the property. The defendants are residents nearby. They have no right over the plaint schedule property. However, since the plaintiff was employed in the military service and was away from home, they tried to trespass into the property. Initially the attempts were defeated by the timely action taken by the plaintiff. The S.A.625/2002. 2 defendants trespassed into the property and put up two sheds and thereafter filed O.A. 7 of 1971 seeking assignment of the landlord's right claiming that they were tenants of the property. Though initially purchase certificate was granted, it was set aside in appeal and the matter was remanded. After remand, the Land Tribunal dismissed the application. Thereafter, it is stated that the defendants trespassed into the plaint schedule property and reduced it into their possession. Based on the above allegations, the suit was laid for recovery of possession on the strength of title and other ancillary reliefs. 3. The defendants resisted the suit. They pointed out that neither the plaintiff, nor his vendor had possession over the suit property and they have been in enjoyment of the property from 1131 M.E. They claimed tenancy right over the suit property. According to them, lease was taken by Raghavan Achari from Govindan Achari and after the death of Raghavan Achari the defendants have been in possession. They obtained purchase certificate in respect of S.A.625/2002. 3 the suit property. At any rate, even assuming that the Land Tribunal has dismissed their application, they perfected title to the suit property by adverse possession and limitation. On the basis of these contentions, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 to A4 from the side of the plaintiff. The defendants had D.Ws. 1 and 2 examined and Exts. B1 and B2 marked. On an appreciation of the evidence in the case, the trial court came to the conclusion that the plaintiff had failed to prove his possession within the period of 12 years and accordingly dismissed the suit. In appeal by the plaintiff as A.S. 99 of 1997 before the District Court, Kollam, the first appellate court found that the suit was one based on title and therefore when the plaintiff has proved his title, it is for the defendants to prove that they have been in possession adverse to the title of the plaintiff for a period of 12 years. S.A.625/2002. 4 The defendants having failed to prove this aspect, the suit was decreed and the judgment and decree of the trial court were reversed. 5. The following questions of law have been raised in the Memorandum of Second Appeal: “A. On the facts and in the circumstances of the case, is the lower appellate court correct or justified in setting aside the judgment and decree of the trial court and in granting plaintiff the declaration and recovery of possession prayed for by him? B. In the absence of any definite case on the part of the plaintiff as to the date on which he was dispossessed, is plaintiff entitled to the declaration and recovery prayed for by him? C. Are not defendants entitled to rely on Exts. B1 and B2 for proving their intention to hold the plaint item hostile to plaintiff's title? In the absence of any evidence regarding plaintiff's vendor's possession of the property on the date of Ext.A1 and of the possession of plaintiff based on Ext.A1, is the finding of the lower appellate court S.A.625/2002. 5 on the question of adverse possession and limitation correct, legal or sustainable? D. What is the legal effect of defendants' possession and enjoyment of, and their residence in, plaint item No.1 after Exts. B1, B2 and A3 orders of the Land Tribunal continuously, uninterruptedly, openly and to the exclusion of plaintiff for all these years? Is not their plea of adverse possession and limitation legal and sustainable? E. Plaintiff having failed to prove that defendants trespassed into the property and dispossessed him in September, 1987 as sworn to by him as P.W.1, is he entitled to the declaration and recovery of possession as prayed for? Is not his claim barred by adverse possession and limitation?” 6. Learned counsel appearing for the appellants pointed out that the lower appellate court has grievously erred in law and on facts in reversing the judgment of the trial court. The trial court has considered as to whether the plaintiff was successful in proving his possession within 12 years and having found that he had failed to do so, has S.A.625/2002. 6 rightly dismissed the suit. Learned counsel drew the attention of this court to the averments in the plaint to the effect that the defendants have trespassed into the suit property in 1971 and put up two sheds. According to learned counsel, that means the defendants asserted their hostile title in 1971 itself and the suit having been filed in 1991 is barred by limitation. In support of his contention, learned counsel relied on the decisions reported in Kochu Ouseph v. Joseph (1976 K.L.T. 512), Ramiah v. N. Narayana Reddy ((2004) 7 SCC 541), Amrendra Pratap Singh v. Tej Bahadur Prajapati ((2004) 10 SCC 65), Official Receiver v. Govindaraju (AIR 1940 Madras 798), Lila Ram v. Mohar Chand (AIR 1968 Punjab 60) and Kunhambu Nair v. Kunhammaru Amma (1973 K.L.T. 1048). It is contended that going by the principle laid down in the above decisions, it is very clear that the plaintiff has to prove that he has been in possession within 12 years and having failed to do so, the judgment and decree of the trial court needs to be restored. S.A.625/2002. 7 7. Per contra, learned counsel appearing for the respondents pointed out that there is no basis for the above contention at all. Learned counsel drew the attention of this court to the fact that the decisions cited by the learned counsel for the appellants deal with the provisions of the Limitation Act, 1908 and has no application to the facts of the case, which is governed by the Limitation Act of 1963. The Article that is applicable to this case is Article 65 and not Article 64 of the Limitation Act of 1963. Going by Article 65 of the Limitation Act, once the plaintiff proves his title, it is for the defendants to show that they are in adverse possession for a period of 12 years. Learned counsel stressed that even going by the defendants' case, they were claiming tenancy rights under the plaintiff as well as his predecessor in interest and they had moved the Land Tribunal. The Land Tribunal finally dismissed their application in 1985 and therefore the period during which the proceedings was pending could not be treated as hostile possession of the defendants. The suit was instituted in S.A.625/2002. 8 1991. According to learned counsel, the trial court had misconstrued the scope of the suit and has treated the suit as it was based on prior possession coming within Article 64 of the Limitation Act. The lower appellate court has correctly understood the basis of the suit and there are no reasons made out to interfere with the decree of the lower appellate court. 8. Learned counsel appearing for the appellants invited the attention of this court to the averments in the plaint, namely, statement in paragraph 2 of the plaint. It is true that in paragraph 2 of the plaint it is stated that the defendants trespassed into the property in 1971 and put up two sheds. It is based on this that the learned counsel for the appellants contends that adverse possession starts from 1971 onwards. Before going further, it will be useful to rely on the decisions relied on by the learned counsel for the appellants. 9. In the decision reported in Kochu Ouseph's case, it was held as follows: S.A.625/2002. 9 “It is a fundamental principle that possession is presumptive evidence of title. In Asher v. Shilock (1865 L.R.I QB.1) Cockburn, C.J., observed, “I take it to be established by authority that possession is good against all the world except the person who can show a better title than one in possession”. It is therefore necessary in every suit for possession, that the plaintiff should have a better title than that of the defendant. In other words, he must succeed on the strength of his own title and not on the weakness of the defendant's case. Proof of proprietary title on the part of the plaintiff would certainly be a better title than that of a defendant who is merely in possession of the property and is not able to refer his possession on any legal basis. However, the mere fact that the plaintiff in a suit for possession shows a better title, proprietary or possessory, than that of the defendant will not necessarily entitle the plaintiff to get a decree for possession against the defendant. For, it is another basic principle that it is the obligation of the plaintiff in every case to show that his action or suit is not barred by limitation. That is why S.3 of the Limitation Act makes the question of S.A.625/2002. 10 Limitation a material one for determination in every case, whether or not the point has been raised by the parties-see AIR 1964 SC, 1336- where the bar of limitation appears on the face of the proceedings, the court is bound under the section to go into the question, of its own accord, although not raised by the parties.” 10. In the decision reported in Ramiah's case, it was held as follows: “Mr. P.R. Ramasesh, learned counsel appearing on behalf of the appellant contended that the plaintiff had instituted the suit for possession based on title and not on the basis of previous possession and, therefore, under Article 65 of the Limitation Act, 1963 the suit was well within time as the limitation of 12 years commenced from the date when the possession of the defendant became adverse to the plaintiff. He contended that Article 64 was not applicable to the facts of the present case as the suit instituted by the appellant for possession of immovable property was based on title and not on the basis of previous possession. It was further urged that the appellant was entitled to the benefit of Section 14 S.A.625/2002. 11 of the Limitation Act, 1963, as the earlier litigation instituted by N. Narayana Reddy came to an end only on 24.11.1982 when the High court in RSA No.801 of 1975 confirmed the decree dated 7.4.1971 passed by the Principal Munsiff in Suit No.357 of 1960. We do not find any merit in the aforestated arguments. Article 64 of the Limitation Act, 1963 (Article 142 of the Limitation Act, 1908) is restricted to suits for possession on dispossession or discontinuance of possession. IN order to bring a suit within the purview of that article, it must be shown that the suit is in terms as well as in substance based on the allegation of the plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance. Article 65 of the Limitation Act, 1963 (Article 144 of the Limitation Act, 1908), on the other hand, is a residuary article applying to suits for possession not otherwise provided for. Suits based on the plaintiff's title in which there is no allegation of prior possession and subsequent dispossession alone can fall within Article 65. The question whether the article of limitation applicable to a S.A.625/2002. 12 particular suit is Article 64 or Article 65, has to be decided by reference to pleadings. The plaintiff cannot invoke Article 65 by suppressing material facts. In the present case, in Suit No.357 of 1960 instituted by N. Narayana Reddy in the Court of Principal Munsif, Bangalore, evidence of the appellant herein was recorded. In that suit, as stated above, the appellant was the defendant. In his evidence, the appellant had admitted that he was in possession of the suit property up to 1971. this admission of the appellant in that suit indicates ouster from possession of the appellant herein. In the present suit instituted by the appellant, he has glossed over this fact. In the circumstances, both the courts below were right in coming to the conclusion that the present suit was barred by limitation. The appellant was ousted in 1971. The appellant had instituted the present suit only on 8.5.1984. Consequently the suit has been rightly dismissed by both the courts below as barred by limitation. In the case of Ram Surat Singh v.Badri Narain Singh it has been held that if the suit is for possession by a plaintiff who says that while he was in possession of the property he was S.A.625/2002. 13 dispossessed, then he must show possession within 12 years under Article 142 (now Article 64) of the Limitation Act. To the same effect is the ratio of the judgment in the case of Mohd. Mahmud v. Mohd. Afaq. In Commentary on the Limitation Act by Sanjiva Row (9th Edn., Vol.2, p.549) it has been stated that the question as to which of the two articles would apply to a particular case should be decided by reference to pleadings, though the plaintiff cannot be allowed by skilful pleading to avoid the inconvenient article. On facts of the case, we find that Article 64 is applicable to the present suit. Consequently, the suit has been rightly dismissed by both the courts below.” 11. In Amrendra Pratap Singh's case, it was held as follows: “Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of twelve years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. S.A.625/2002. 14 By virtue of Section 27 of the Limitation Act, on the determination of the period limited by the Act to any person for instituted a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title on to himself and such prescription having continued for a period of twelve years, he acquires title not on his own but on account of the default or inaction on the part of the real owner, which stretched over a period of twelve years, results in extinguishing of the latter's title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrongdoer and re-enter into possession, has defaulted and remained inactive S.A.625/2002. 15 for a period of twelve years, which the law considers reasonable for attracting the said penalty. Inaction for a period of twelve years is treated by the doctrine of adverse possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession.” 12. In the decision in Official Receiver's case, it was held as follows: “In view of these decisions of the Privy Council, it cannot in my judgment, be maintained that a person who proves title in a suit for ejectment has the right to the decree sought unless the defendant proves adverse possession for 12 years. The plaintiff is not entitled to succeed unless he shows,in addition to title, that he has been in possession of the property within 12 years of the suit. The Privy Council has declared that to be the effect of Article 142 and that suits for ejectment come within that Article. It maybe a hardship that a person who proves a title to property should lose it to a trespasser unless he can also show that he has been in possession within 12 years of suit, but that is what S.A.625/2002. 16 the Limitation Act says and the Court must administer the law. And drafting his plaint in a manner which disguises the real nature of the suit will not help a plaintiff.” 13. In the decision in Lila Ram's case, it was held as follows: “.....where in a suit for possession, plaintiff pleads possession and dispossession, the suit is governed by Article 142 of Limitation Act, 908 and that it cannot be said that in all cases Article 144 is to govern the case once the plaintiff has proved a title to the property. ........... .............. We are, therefore, of the view that as the plaintiff in the present case based his claim on title and alleged previous possession of his predecessor and subsequent dispossession by the respondent, it was for him to show that he or his predecessor had been in possession of the property within 12 years of the institution of the suit, and that the suit was governed by Article 142 of the Limitation Act. “ 14. In Kunhambu Nair's case, it was held as follows: S.A.625/2002. 17 “........The plaintiff is the best person to know whether he is in possession or not and it is he who can decide, better than the court, whether he would like to have a relief of recovery of possession and not an injunction. He should honestly plead whether he is in possession or not. It is only by way of indulgence that the court grants him relief of recovery when it finds that he was not in possession on the date of shit on the alternative prayer for recovery of possession. It is not uncommon in this country to find pleadings of this nature. When the court on the evidence finds that on the date of suit plaintiff is out of possession if there be an alternative prayer for recovery of possession as in this case the court grants a decree for recovery subject to the rules of limitation. But a plaintiff who avoids averring that he is out of possession, which is found at the trial as a fact, cannot thereby obtain an advantage by way of evidence of the application of article 142. That would be the article applicable in regard to a plaintiff in a suit who honestly avers that he is out of possession on the date of suit. Therefore irrespective of the way in which he has camouflaged the pleadings, in the event the court S.A.625/2002. 18 finds that the suit is one for recovery of possession, the plaintiff having been dispossessed it should be treated as one to which article 142 of the Limitation Act, 1908 applies. Therefore, in view of the findings in this case that plaintiff was out of possession of the date of suit, I must find that this is a case where there is a prayer for recovery on the basis of dispossession.” 15. A careful reading of the decisions in Kochu Ouseph's case, Official Receiver's case, Lila Ram's case and Kunhambu Nair's case, it can be seen that those were decisions rendered on the basis of the provisions of the Limitation Act, 1908, where there was no provisions like Articles 64 and 65 now found in the Limitation Act. As already stated, the present suit is covered by Article 65 of the Limitation Act since the suit is based on title of the plaintiff. 16. It is true that in the decision reported in Ramiah's case it was held that the pleas will be strictly construed to find out whether a particular suit falls within S.A.625/2002. 19 the ambit of Article 64 or Article 65 of the Limitation Act. Ingenious pleadings cannot take the suit out of the ambit of Article 64 of the Act even if the plaint clearly shows that the suit does not fall under the said Article. 17. An attempt shall now be made to ascertain whether the decision relied on by the learned counsel for the appellants have any application to the facts of this case. 18. The claim that adverse possession starts from 1971 onwards cannot be accepted for more reasons than one. What is stated in the plaint is that even though there was a trespass in 1971, the plaintiff was able to take remedial measures by approaching the appropriate authorities. The further allegation in the plaint was that it was in 1987 that the subsequent trespass was committed, that is after the dismissal of the O.A. Further, the claim of the appellants was one of tenancy. The final decision regarding that claim was in the year 1985. So long as the defendants claimed to be the tenants of the plaintiffs, it could not be said that their possession in the character as S.A.625/2002. 20 tenants was adverse to that of the landlord. Only after they shed their character as tenants and occupied the property in their own right, then only adverse possession commence. 19. It will be useful at this juncture to refer to the decisions relating to Articles 64 and 65 of the Limitation Act, 1963. The corresponding provisions were Articles 142 and 143 as per the Limitation Act, 1908. Under the earlier Act Article 144 was treated as a residuary article. It was found that a lot of confusion had been created by Article 142 of the old Act. The law seems to favour trespassers as against the true owners of the property. Most of the decisions went on to hold that in a suit for ejectment of the owner of the property, it was not sufficient for him to prove his title, but he had the added burden to establish that he was in possession of the property within 12 years before the date of institution