IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 SA.No.40 of 1994 (D) ------------------------- A.S.430 OF 1988 OF DISTRICT COURT, THIRUVANANTHAPURAM O.S.265 OF 1987 OF PRL. MUNSIFF COURT, NEYYATTINKARA APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------- NAGAPPAN RANJIT MOHAN, KOVALAM HOUSE, VANCHIYOOR MURI, VANCHIYOOR VILLAGE, TRIVANDRUM. BY ADV. SRI.M.R.ANANDAKUTTAN SRI.SATHIQ SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN RESPONDENTS: ----------------- 1. PARVATHI SAVITHRI, CHARUVILA PUTHEN VEEDU, NEAR MARINE FISHERIES, VIZHINJAM DESOM, VIZHINJAM PAKUTHY. 2. KARUNAKARAN CHANDRAN, CHARUVILA PUTHEN VEEDU, NEAR MARINE FISHERIES, VIZHINJAM DESOM, VIZHINJAM PAKUTY. 3. KARUNAKARAN JAYAN, CHARUVILA PUTHEN VEEDU, NEAR MARINE FISHERIES, VIZHINJAM DESOM, VIZHINJAM PAKUTHY. 4. KARUNAKARAN SIVANKUTTY, OF -DO- -DO- SA.No.40 of 1994 (D) -2- 5. SAVITHRI CHANDRIKA, OF -DO- -DO- 6. SAVITHRI SANTHINI, OF -DO- -DO- 7. SAVITHRI SUDHA, OF -DO -DO- ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR 1 TO 4,6,7 SRI.T.N.SUKUMARAN SRI.VINOD RAVINDRANATH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/04/2009 ALONG WITH S.A. NO.75/94, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ S. A. Nos.40 & 75 of 1994 ------------------------------------------------ Dated this the 3rd day of April, 2009 COMMON JUDGMENT The appellant in S.A.No.40/94 is the first appellant in S.A.No.75/94 and the second appellant therein was his father who passed away pending appeal and his other legal heirs are impleaded as additional appellants 3 to 5. Respondents in both the second appeals are the legal heirs of Karunakara Panicker, though in S.A.No.75/94, Chandrika, the fifth respondent in S.A.No.40/94 is not a party. 2. S.A.No.40/94 arises out of the concurrent dismissal of O.S.No.265/87 filed by the appellant and S.A.No.75/94 arises out of the concurrent decree passed in O.S.No.424/87 against the appellants. Both O.S.Nos.265/87 and 424/87 were disposed of by a common judgment by the trial court and first appeals preferred from O.S.Nos.265/87 and 424/87 are respectively A.S.Nos.430/88 and 431/88 SA 40 & 75 of 1994 -2- and those were being disposed of by the first appellate court vide common judgment dated 12.02.1993. 3. O.S.No.265/87 is a suit instituted by the appellant in S.A.No.40/94 as the sole plaintiff who happens to be the first appellant in S.A.No.75/94 as well. That was a suit for eviction of the respondents from the building in the scheduled property inter alia on the following allegations:- The scheduled building and twenty cents of property wherein the said building stands originally belonged to Rajasekharan; that he got title and possession over the said property as per assignment of mortgage vide Exhibit A1; that he rented out the building to Velayudha Panicker Karunakaran on 11.07.1972 under Exhibit A2 rental deed on a monthly rental of Rs.30/-; that the said Karunakaran is no more; that the first defendant is the wife of said Karunakaran and defendants 2 onwards are his children; that they are residing in SA 40 & 75 of 1994 -3- the scheduled building as tenants under Exhibit A2 rental deed executed by their predecessor in interest; that the said twenty cents and the scheduled building situated therein was assigned by Rajasekharan in his favour vide Exhibit A3 assignment deed dated 09.01.1987 and thus, he got title over the scheduled building and the property over which the said building is situated; that the defendants have paid rent only up to June, 1986 and they are in arrears from July, 1986 onwards; that at the time of execution of Exhibit A3 assignment deed, rent for six months was in arrears and he is authorised to realise the said arrears as well, as per Exhibit A3; that though on intimation given to the defendants regarding the assignment of title in his favour and they promised also to pay the rents, including the rents in arrears and future rent, to him, they have not cared to do so; that he bona fide requires the said building for his occupation; that he is also desirous of re-constructing the SA 40 & 75 of 1994 -4- said building; that he has issued Exhibit A9 notice terminating the tenancy with effect from 11.02.1987; that the defendants have issued Exhibit A8 reply denying the tenancy arrangement and that therefore, he prayed for a decree for recovery of arrears of rent authorised to be recovered under Exhibit A3 and also with future mesne profits at the rate of Rs.50/- per month and in the alternative for a decree for recovery of possession of the scheduled building on the strength of his title with mesne profits at the rate of Rs.50/- per month. 4. Only defendants 1 to 4, 6 and 7 resisted the suit filing a joint written statement. They contended, inter alia, that the suit is not maintainable; that the scheduled property and building never belonged to Rama Panicker Rajasekharan and he was not having title or possession over the same; that there was no rental arrangement between Karunakaran and Rajasekharan as SA 40 & 75 of 1994 -5- is attempted to be established by production of Exhibit A2; that twenty cents of scheduled property and building situated therein was outstanding on a mortgage from the Jenmi from 1085 M.E. onwards; that the mortgage in respect of the property devolved on Ayyi Bhavani; that she was a relative of Karunakara Panicker; that Ayyi Bhavani was residing in the building along with her brother Kunjunni; that later Kunjunni, who turned enimical towards Bhavani, shifted his residence and Bhavani also vacated the building and began to reside along with her daughter at Thiruvallam; that thus, the building and scheduled property was lying in an abandoned state; that Karunakara Panicker thereupon reduced the building in the property to his possession in the year 1967 and he began to reside in the building along with his wife and children who are the defendants and renovated the building using his own funds; that on death of Karunakara Panicker the defendants extended the building by SA 40 & 75 of 1994 -6- constructing three more rooms as addition to the old structure on 01.06.1977 and the defendants are in enjoyment of the entire twenty cents of scheduled property with the building situated therein from 1967 onwards uninterruptedly and were taking the income from the property and appropriating it for themselves; that possession of the defendants as owners of the property is known to all persons; that Exhibit A3 assignment deed executed by Rajasekharan in favour of the appellant/plaintiff is the result of collusion and it is a sham document; that Rajasekharan is none other than the brother-in-law of father of the plaintiff; that the plaintiff is only a student; that the predecessor-in-interest of the plaintiff was never in possession and enjoyment of the scheduled property and the building; that no rent was ever paid by Karunakara Panicker or by these defendants; that the plaintiff has no right to evict the defendants from the scheduled building SA 40 & 75 of 1994 -7- and twenty cents of property on which the scheduled building stands; that to Exhibit A9 notice issued by the plaintiff, these defendants have issued Exhibit A8 reply stating the true facts; that the plaintiff has no cause of action to file the suit and has no right to recover possession of the building with mesne profits as claimed; that these defendants have instituted O.S.No.424/87 for a permanent prohibitory injunction in respect of twenty cents of property and building situated therein and that the present suit is barred by adverse possession and limitation. On the above contentions, the defendants prayed for a dismissal of the suit with their costs. 5. O.S.No.424/87 was instituted by defendants 1 to 4, 6 and 7 in O.S.No.265/87 for a decree of permanent prohibitory injunction inter alia on the allegations that the first plaintiff is the widow of Karunakara Panicker and plaintiffs 2 to 6 are her children born to the said Karunakara Panicker; SA 40 & 75 of 1994 -8- that the first defendant is the son of the second defendant; that the scheduled property was outstanding on mortgage from the Jenmi family from 1085 M.E. onwards; that the said mortgage right devolved on Ayyi Bhavani, who is a relative of Karunakara Panicker; that Ayyi Bhavani was residing with her brother Ayyappan Kunjunni in the building in the scheduled property and while so, Kunjunni, who turned enimical towards Bhavani, shifted his residence from the scheduled building and thereafter, Bhavani also left the scheduled building and started residing with her daughter at Thiruvallam and the scheduled property and building were lying in an abandoned state thereafter; that Karunakara Panicker and the plaintiffs took possession of the scheduled property and building in the year 1967; renovated the building using their own funds and started residence in the building; that Karunakara Panicker and the plaintiffs were cultivating the scheduled property SA 40 & 75 of 1994 -9- and was in enjoyment thereof exclusively; that while so, after the death of Karunakara Panicker, the plaintiffs extended the scheduled building by constructing two more rooms in addition to the old structure on 01.06.1977 and they are in possession of the scheduled property and building to the exclusion of all others without any interruption from 1967 onwards and thus, they have acquired title over the scheduled property and building by adverse possession; that the first defendant was a student and he claims title to the scheduled property as per Exhibit A3 assignment deed dated . 09.01.1987 allegedly executed by his brother-in- law; that O.S.No.265/87 is filed by the first defendant for recovery of possession of the scheduled building from the plaintiffs on the basis of an alleged rental arrangement between Rajasekharan and Karunakara Panicker and that he has alternatively prayed for recovery of possession of the scheduled building on the strength of his SA 40 & 75 of 1994 -10- title; that Exhibit A3 assignment deed is invalid and is not binding on the plaintiff and it is tainted by collusion and is also a sham document; that the first defendant, with the help of his father, the second defendant, is attempting to take forcible possession of the scheduled property and building and that they have to be prevented from such highhanded action. On the above allegations plaintiffs prayed for a decree of permanent prohibitory injunction restraining the defendants from trespassing into the scheduled property and the building therein or taking income therefrom or causing any obstruction to the plaintiffs' peaceful enjoyment thereof. 6. Defendants 1 and 2 filed joint written statement resisting the suit contending, inter alia, that the scheduled property was in the possession of Ayyi Bhavani; that she was not a relative of Karunakara Panicker; that Ayyappan Kunjunni and Ayyi Bhavani never resided together; SA 40 & 75 of 1994 -11- that Ayyi Bhavani never abandoned the building and the property; that it is false to say that Karunakara Panicker and plaintiffs took possession of the property in the year 1967 and they renovated the building using their own funds; that neither the plaintiffs nor Karunakara Panicker did have any title or possession over the scheduled property; that Ayyi Bhavani executed an assignment deed in favour of Rajasekharan vide Exhibit A1 dated 25.10.1969 and the scheduled building and the property were in possession and enjoyment of Rajasekharan; that while so, Karunakara Panicker took the building on rent from Rajasekharan on 11.07.1972 under Exhibit A2 on a monthly rental of Rs.30/- and Karunakaran and members of his family began to reside in the said building; that later, on the death of Karunakaran, the first defendant, who is his wife, continued residence along with her children as legal heirs of Karunakaran and plaintiffs have no right or possession over the SA 40 & 75 of 1994 -12- property; that the said Rajasekharan has transferred his right over the scheduled property to the first defendant as per Exhibit A3 assignment deed dated 09.01.1987; that the first defendant is in possession and enjoyment of the scheduled property and for evicting the plaintiffs from the scheduled building the first defendant has instituted O.S.No.265/87 and the present suit is filed as a counter blast to the said suit; that plaintiffs are residing in the building as legal heirs of Karunakaran and they have no title or possession over the scheduled property and the building situated therein and have not extended the said building by constructing additional rooms as alleged; that the documents relied on by the first defendant are not sham documents; that the claim of the plaintiffs is barred by estoppal; that the scheduled property is in possession of the first defendant; that the plaintiffs committed theft from the scheduled property and in connection therewith SA 40 & 75 of 1994 -13- a case was also registered against the plaintiffs; that the plaintiffs are not entitled to decree of prohibitory injunction as prayed for and that the suit itself is not maintainable and has to be dismissed with costs. 7. The trial court raised necessary issues for trial in both the suits, which are extracted below for easy reference:- “O.S.265/87 1. Whether the description of plaint schedule property is correct ? 2. Whether Velayudha Panicker Karunakaran has taken the plaint schedule building on a monthly rent of Rs.30/- from Rama Panicker Rajasekharan on 11th July, 1972? 3. Whether there is any privity of contract between the plaintiff and the defendants ? 4. Whether the plaintiff is entitled to recover the possession of plaint schedule building from the defendants ? 5. Is the suit barred by adverse possession and limitation ? 6. Whether the plaintiff is entitled to realise any amount as arrears of rent. If so what is the amount ? 7. Whether the plaintiff is entitled to recover the building with mesne profits as prayed for ? If so what is the mesne profit awardable ? 8. Reliefs and costs ? SA 40 & 75 of 1994 -14- O.S.424/87 1. Whether the plaintiffs are in possession of plaint schedule properties by adverse possession and limitation ? 2. Whether plaintiffs have prescribed title over plaint schedule properties by adverse possession and limitation ? 3. Whether plaintiffs are entitled to the injunction prayed for ? 4. Reliefs and costs ?” 8. A joint trial of both the suits was being had treating O.S.No.265/87 as the main case. Considering the evidence adduced at trial, which consisted of oral evidence of PWs1 and 2 and DWs1 to 7 and documentary evidence Exthibits A1 to A10, B1 to B4 and Exhibit X1, the trial court dismissed O.S.No.265/87 and decreed O.S.No.424/87 granting the plaintiffs therein a decree of permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property and the building situated therein and from taking the yield from the said property or causing any obstruction to the peaceful enjoyment of the said SA 40 & 75 of 1994 -15- property and building by the plaintiffs. The plaintiff in O.S.No.265/87 assailed the decree dismissing the said suit filing A.S.No.430/88 and the defendants in O.S.No.424/87, namely the plaintiff in O.S.No.265/87 and his father, filed A.S.No.431/1988 before the District Court, Thiruvananthapuram assailing the decree of permanent prohibitory injunction granted in favour of the respondents, who were the plaintiffs in the said suit. Both the appeals were considered and disposed of by a common judgment dated 12.02.1993 by the II Additional District Judge, Thiruvananthapuram whereby both the appeals were dismissed with costs. Hence, these Second Appeals by the aggrieved appellants in A.S.Nos.430/88 and 431/88. 9. S.A.No.40/94 filed against the dismissal of O.S.No.265/87 and A.S.No.430/88 was admitted on the substantial questions of law formulated in the memorandum of Second Appeal. The questions of law formulated in the memorandum of Second Appeal as SA 40 & 75 of 1994 -16- substantial questions of law are the following:- “A. When the defendants and their predecessor occupy a building belonging to a close relative, because it lies vacant and without setting up a hostile title or a denial of the owners title, will this fact constitute adverse possession against the true owner? B. Will mere possession, however long, constitute adverse possession sufficient to prescribe a title thereby if there is no plea or evidence of holding the property hostilely and in denial of the true owner's title ? C. In the absence of credible evidence of adverse possession for the entire statutory period required, can the defendants prescribe title by limitation ? D. When the very documents produced by the defendants Exts.B1 and B2 show their occupation at the same time showing the assessee owner as Rajasekharan, does it not constitute an admission of his title especially when the first defendant's claim that she complained against the entry to the Panchayath but failed to produce any such records ? E. Were the courts below justified in relying on Ext.X1 voter's list without identification of the relevant entries when the house number, house name and the ages of the persons do not tally? F. When the execution of Ext.A2 by Karunakaran has been proved by the positive SA 40 & 75 of 1994 -17- evidence of PWs.1 and 2, the executee and the attestor and highly probabilised by the surrounding circumstances were the courts below justified in finding against its genuineness merely on the say- so of the first defendant and a few discrepancies in A2, which latter really guarantees its genuineness? G. Were the courts below justified in failing to draw an inference adverse to the defendants denial of Ext.A2 by reason of the non-production by the defendants of any document containing Karunakaran's admitted signature?” 10. S.A.No.75/94 filed assailing the decree passed in O.S.No.424/87 on the file of the Munsiff's Court, Neyyattinkara, which was confirmed in A.S.No.431/1988, was also admitted on the substantial questions of law formulated in the memorandum of Second Appeal, which are as follows:- “A. When the defendants and their predecessor occupy a building belonging to a close relative, because it lies vacant and without setting up a hostile title or a denial of the owners title, will this fact constitute adverse possession against the true owner? B. Will mere possession, however long, constitute adverse possession sufficient to prescribe a title thereby if there is no plea or evidence of holding the property hostilely and in denial of the true owner's title ? SA 40 & 75 of 1994 -18- C. In the absence of credible evidence of adverse possession for the entire statutory period required, can the respondents prescribe title by limitation ? D. When the very documents produced by the respondents Exts.B1 and B2 show their occupation at the same time showing the assessee owner as Rajasekharan, does it not constitute an admission of his title especially when the first defendant's claim that she complained against the entry to the Panchayath but failed to produce any such records ? E. Were the courts below justified in relying on Ext.X1 voter's list without identification of the relevant entries when the house number, house name and the ages of the persons do not tally? F. When the execution of Ext.A2 by Karunakaran has been proved by the positive evidence of PWs.1 and 2, the executee and the attestor and highly probabilised by the surrounding circumstances were the courts below justified in finding against its genuineness merely on the say- so of the first respondent and a few discrepancies in A2, which latter really guarantees its genuineness? G. Were the courts below justified in failing to draw an inference adverse to the respondents denial of Ext.A2 by reason of the non-production by the respondents of any document containing Karunakaran's admitted signature? H. Were the courts below justified in granting injunction to the respondents in the facts SA 40 & 75 of 1994 -19- and circumstances of the case ?” 11. The questions of law, on which notice was ordered and extracted above, though were formulated in the appeal memorandum, are admitted by counsel on both sides are not precise substantial questions of law and that substantial questions of law deserve to be recast. On hearing submissions of both sides, I formulate the following as common substantial questions of law in these appeals:- 1. Does not Ext.A2 stand proved under Section 67 of the Evidence Act by the evidence of PW2 and of PW1 and however, even in the event of lack of proof in relation to the rental arrangement pleaded by the appellant, inasmuch as alternate relief of recovery of possession of the scheduled building on the strength of title had also been prayed for in O.S.No.265/87, are the courts below justified in not considering tenability of the said alternate claim as well ? 2. Whether the framing of and entering findings SA 40 & 75 of 1994 -20- on Issue Nos.1 and 2 by the trial court in O.S.No. 424/1987, a suit wherein the prayer was only for a decree of permanent prohibitory injunction and no court fee had been paid also on the issues so framed, is justified in law and whether the decree passed in favour of respondents for reason of findings rendered on those two issues in their favour is sustainable without a prayer for declaration of perfection of title over the scheduled property and building by the respondents by adverse possession and limitation ? 3. Whether occupation by the respondents of the scheduled building, which is admitted also by the appellants, is sufficient for a finding being rendered that the respondents have perfected title over the scheduled property and building by adverse possession and limitation in the absence of sufficient pleadings from the side of the respondents in that behalf and without proof of necessary animus in holding the property adversely SA 40 & 75 of 1994 -21- to the interest of the real owners ? 4. Is not the concurrent findings of the courts below regarding perfection of title by adverse possession and limitation by the respondents over the scheduled property and building unsustainable for reason of wrong application of the law on the subject on the available pleadings and materials furnished in evidence ? 12. Counsel for the respondents raised a preliminary objection regarding the maintainability of these second appeals citing various authorities and contending that there is no substantial question of law involved in these second appeals for decision by this Court and that therefore, these second appeals are only to be dismissed without entering into the questions of law either framed in the memorandum of appeals or as recast by this Court in the course of arguments of these second appeals. According to the learned counsel, the suits having been decided in favour of the SA 40 & 75 of 1994 -22- respondents concurrently by the two courts below, it is not open for this Court to go into the merits of the case to any extent whatsoever. 13. Counsel for the respondents relied on the decisions of the Apex Court in State of Kerala v. Mohd. Kunhi ((2005) 10 SCC 139), Navaneethammal v. Arjuna Chetty ((1996) 6 SCC 166), Sayamma v. Basamma ((2000) 8 SCC 567) Basappa v. Puttappa ((2000) 8 SCC 565), Hero Vinoth v. Seshammal ((2006) 5 SCC 545), Govindaraju v. Mariamman ((2005) 2 SCC 500), Kondiba Dagadu Kadam v. Savitribai Sopan Gujar ((1999) 3 SCC 722) and M.Nadar Kesavan Nadar v. Narayanan Nadar Kunjan Nadar ((2000) 10 SCC 244) to contend that concurrent decrees of the courts below, however wrong it be, cannot be considered over again by the High Court in second appeals entering into the merits of the case. 14. The learned counsel forgets the fact that even when findings are concurrently entered into by SA 40 & 75 of 1994 -23- the courts below, it does not preclude the High Court from interfering with the said concurrent judgments when the judgments so entered into were not based on any evidence and were perverse and the conclusions arrived at by the courts below were erroneous being contrary to the mandatory provisions of law applicable to the facts of the case or contrary to law as pronounced by the Apex Court or was erroneous being based upon inadmissible evidence or on no evidence. It is enough that