IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 RSA.No. 315 of 2008() --------------------- AS.104/2003 of ADDL.SUB COURT, ALAPPUZHA OS.794/1992 of ADDL.MUNSIFF'S COURT, ALAPPUZHA .................... APPELLANTS/LEGAL HEIRS OF DECEASED APPELLANT IN A.S./ LEGAL HEIRS OF DECEASED ADDL. 2ND DEFENDANT IN O.S. --------------------------------------------------------------------- 1. KRISHNAMMA, W/O. LATE B.CHANDRAN, PATHIL VEEDU, PADINJARE MURI, KARUMADY, AMBALAPPUZHA. 2. DEEPU C., S/O. LATE B.CHANDRAN, PATHIL VEEDU, PADINJARE MURI, KARUMADY, AMBALAPPUZHA. 3. DEEPA, D/O. LATE B.CHANDRAN, PATHIL VEEDU, PADINJARE MURI, KARUMADY, AMBALAPPUZHA. BY ADV. SMT.C.G.BINDU SMT.C.G.AJITHA RESPONDENT/ RESPONDENT/PLAINTIFF. --------------------------------------------- MURALEEDHARAN PILLAI, S/O. CHELLAMMA PILLAI, PUTHUPURACKAL VEETTIL, AMAYIDA, KARUMADI, AMBALAPPUZHA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. =================== R.S.A.No. 315 of 2008 ==================== Dated this the 30th day of October, 2008. JUDGMENT The legal representatives of the 2nd defendant in O.S. No. 794 of 1992 on the file of the Additional Munsiff's Court, Alappuzha are the appellants in this Second Appeal. The said suit was one for recovery of possession on the strength of title with mesne profits. 2. The case of the plaintiff can be summarised as follows:- The plaint schedule property admeasuring 81 cents belonged to Puthupurackal family as per Ext.A1 partition deed of 1107 M.E corresponding to 1932. The plaint schedule property was left in common for meeting the expenses of the poojas in various temples and for the family deity. Senior most member of the family was authorised to manage the property. The property was thus constituted as a family trust. However, Shri. Vasudevan Pillai and Shri. Karunakaran Pillai who were members of the family, handed over the possession of the plaint schedule property to the defendant without any authority. For the last 10 R.S.A No. 315/2008 : 2: years, the defendant has been in possession of the property without paying any rent or profit to the family. The defendant has no right to continue in possession of the property. Even though the defendant was called upon to hand over vacant possession of the property by a lawyer notice, he has caused a reply notice raising untenable contentions. Hence the suit for recovery of possession with mesne profits for and on behalf of the members of the family. 3. The suit was resisted by the defendant contending inter alia as follows:- The suit is not maintainable and the plaintiff has no locus standi to file the suit. The plaintiff is not a member of the Puthupurackal family. It is true that the plaint schedule property belonged to the Puthupurackal family which was governed by Marumakkathayam Law of Inheritance. With the coming into force of the Joint Hindu Family System (Abolition) Act, 1976 with effect from 01.12.1976, the joint Hindu family has become extinct and a partition has been taken place. Even if the plaintiff is a member of the family, on the coming into force of the said Act, the plaintiff alone has no locus standi to file the present suit which is therefore bad for non-joinder of R.S.A No. 315/2008 : 3: parties. The plaint schedule property was taken on lease by the father of this defendant from one Vasudevan Pillai (a member of Puthupurackal family) who was receiving the rent. After the death of this defendant's father, this defendant has been in possession and enjoyment of the property as a tenant. The pattam fixed was 20 paras of paddy which is being given. Since the entrustment commenced long prior to the commencement of the Kerala Land Reforms Act, this defendant has fixity of tenure and the question of tenancy has to be decided after reference to the competent Land Tribunal. Subsequently, Shri. Vadudevan Pillai had agreed to sell the plaint schedule property to this defendant after receiving a sum of Rs.1,750/- as advance. But on realising that this defendant has obtained fixity of tenure after the advent of the Kerala Land Reforms Act, Shri. Vasudevan Pillai did not proceed to execute the sale deed. This defendant and his father have effected valuable improvements in the property which has been converted into a double crop paddy field. The plaintiff is not entitled to get the relief of recovery of possession. Even if Puthupurackal family has title over the property, the same is lost by adverse possession of limitation. In the event of the R.S.A No. 315/2008 : 4: court granting recovery of possession, this defendant is entitled to get value of improvements and the plaintiff is not entitled to any mesne profits. The suit is liable to be dismissed. 4. On the side of the plaintiff, Ext.A1 partition deed was marked. On the side of the defendants, Exts. B1 to B7 were got marked. The learned Munsiff, after trial, as per judgment dated 22.08.2003 decreed the suit as prayed for after rejecting the contentions of the defendants. It was found that the plaint schedule property was under Ext.A1 partition deed left in common, that the plaintiff who is the son of Chellamma Pillai who was a member of the Puthupurackal family as can be seen from Ext.A1 partition deed and that being a member of the said family, the plaintiff was entitled to maintain the suit for injunction. The question of tenancy was referred to the competent Land Tribunal under Section 125(3) of the Kerala Land Reforms Act, 1964. The Land Tribunal returned a finding to the effect that the defendant is not the tenant entitled to fixity of tenure. The trial court thereafter incorporated the said finding and decreed the suit. On appeal preferred by the defendant as A.S. No. 104/2003 before the Sub Court, Alappuzha, the learned Additional Sub Judge as per judgment R.S.A No. 315/2008 : 5: dated 25.11.2006 dismissed the appeal after confirming the finding of the Land Tribunal and after upholding the findings recorded by the trial court. Hence this Second Appeal by the legal representatives of the 2nd defendant. 5. The learned counsel appearing for the appellants made the following submissions in support of the appeal:- The courts below have proceeded on the erroneous premise that the defendant has admitted that the plaintiff is a member of the Puthupurackal family. The plaintiff who is not a member of the said family, had no locus standi to file the said suit. The courts below failed to note that even assuming that the plaintiff is a member of the said marumakkathayam family, with the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1976 with effect from 01.12.1976, there is a statutory partition of the family as on 01.12.1976 and therefore the plaintiff could not have maintained the suit. The property in question was entrusted to the father of the original defendant more than 50 years ago and he was in continuous possession and enjoyment of the property as entrusted to him by Shri. Vasudevan Pillai, a member of the Puthupurackal family. Subsequently, Shri. Vasudevan Pillai had also agreed to R.S.A No. 315/2008 : 6: sell the property to the defendant. But the document could not be executed. After the death of the defendant, his brother's son, the 2nd defendant has been in possession and enjoyment of the property. The defendant had specifically pleaded that the rights of the plaintiff and the Puthupurackal family, if any, have been lost by adverse possession and limitation. No issue in that regard was framed by the courts below. 6. I am afraid that I cannot agree with the above submissions. It is not disputed that the plaint schedule property belonged to Puthupurackal family. The finding of the trial court that the plaintiff's mother Chellamma Pillai was a member of the family as evidenced by Ext.A1 partition deed, was not taken exception to by the appellants before the lower appellate court. Both the courts have held that the plaintiff is a member of the Puthupurackal family which was a Marumakkathayam family. It is true that the Kerala Joint Hindu Family System (Abolition) Act came into force on 01.12.1976 disrupting the Hindu joint family and bringing about a statutory partition of the said family. But the legal effect of the said enactment is only to convert the joint tenancy into tenancy-in-common. It is now well settled that a co-owner can R.S.A No. 315/2008 : 7: maintain an action on behalf of the other co-owners without even joining the other co-owners as parties to the action. Hence, the plaintiff who is a member of the Puthupurackal tharavadu, was fully entitled to maintain the suit which was instituted on behalf of the said family. 7. Coming to the question of entrustment set up by the original defendant, he did not plead the exact date or year of entrustment. On his own admission, the property was entrusted to the original defendant by Shri. Vasudevan Pillai, a member of the Puthupurackal family. The said person had no authority to entrust the property without the consent of the others. The question of tenancy set up by the defendant was referred to the competent Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. The Land Tribunal returned a finding that he is not entitled to fixity of tenure. The said finding has been upheld by the lower appellate court also. It is a pure finding based on facts and this Court will be loath to interfere with the said finding sitting in the rarefied jurisdiction under Section 100 C.P.C. 8. Now coming to the question of adverse possession and limitation pleaded by the defendant, no doubt, the trial court R.S.A No. 315/2008 : 8: did not frame any issue regarding the said plea. But the trial court has considered the said plea in paragraph 11 of the judgment. Since the suit is filed after the commencement of the new Limitation Act, 1963, it was for the defendant to offset the title of the plaintiff by pleading and proving adverse possession. The burden in that behalf was squarely on the defendant. However, neither the original defendant nor the 2nd defendant mounted the witness box to depose in support of the said contention. Moreover, when the defendant is setting up a tenancy under the plaintiff's tharavadu, he was admitting the title of the tharavadu and he could not have pleaded adverse possession without a further plea that from a given point of time his possession became adverse to that of the tharavadu. There is no such plea much less, any evidence. It is well settled that possession referable to a lawful title can never be adverse. Hence, it was impermissible for the defendant to complain that the trial court did not frame an issue regarding the adverse possession. There was no sufficient plea in that behalf. It is now well settled that a person setting up a plea of adverse possession will have to mention the starting point of limitation to indicate the the time from which his possession R.S.A No. 315/2008 : 9: became adverse. That is also not pleaded. Under these circumstances, the courts below cannot be faulted for granting a decree for recovery of possession on the strength of title of the plaintiff's family since the suit is filed on behalf of Puthupurackal family. The plea of non-joinder also cannot be sustained. No question of law much less, any substantial question of law arises for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 30th day of October, 2008. V. RAMKUMAR, JUDGE. rv R.S.A No. 315/2008 : 10: