IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 RSA.No. 975 of 2004() --------------------- AS.23/1997 of ADDL DISTRICT JUDGE (FAST TRACK COURT (ADHOC)-II, KOTTAYAM OS.448/1993 of ADDL.MUNSIFF COURT,KOTTAYAM .................... APPELLANTS/APPELLANTS/D2 & 3: ------------------------------------------------- 1. JAYAMMA, W/O. GOPIDAS, THYCHIRAYIL HOUSE, KUMARAKOM KARA & VILLAGE, KOTTAYAM. 2. GOPIDAS, -DO- -DO-. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): RSPDTS.2 TO 4, 6 TO 8-PLNTFS.2 TO 4 & DFNDTS.4TO6: ----------------------------------------------------------------- 1. LAILA, D/O. RAGHAVAN, MALIKAYIL CHIRA, VIRIPPUKALA KARA, AYMANAM VILLAGE, KOTTAYAM DIST. 2. BAIJU, S/O. -DO- -DO-, MALIKAYIL CHIRA, KAVANATTINKARA KARA, KUMARAKOM VILLAGE, KOTTAYAM. 3. LAIJU, S/O. -DO- -DO-. 4. SEEMA GOPIDAS, D/O. GOPIDAS, THUCHIRAYIL HOUSE, KUMARAKOM KARA & VILLAGE, KOTTAYAM. 5. SINI GOPIDAS, D/O. -DO- -DO-. 6. SIJI GOPIDAS, D/O. -DO- -DO-. ADV. SRI.RAJEEV.P.NAIR FOR R1 TO 3 SRI.REJI GEORGE FOR R1 TO R3 SRI.MOHAN PULIKKAL FOR R1 TO R3 SRI.JOE JOSEPH KOCHIKUNNEL FOR R1 TO R3 SRI.PAULCY KURIAN FOR R1 TO R3 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/09/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.975 of 2004 ............................................ DATED THIS THE 28th DAY OF SEPTEMBER, 2011 JUDGMENT Defendants 2 and 3 in O.S.448 of 1993 on the file of Additional Munsiff Court, Kottayam are the appellants. Respondents 1 to 4 are the plaintiffs and other respondents, the other defendants in the suit. Suit was filed for declaration of title and recovery of possession. Plaint schedule property is 15 cents in survey No.111/1 of Kumarakom Village of Kottayam Taluk. The declaration sought was that respondents 1 to 4 are the owners of the plaint schedule property and the building therein, subject to life interest of deceased first defendant and for recovery of possession of the building in the plaint schedule property with future mesne profits at the rate of Rs.250/-. First respondent is the husband and respondents 2 to 4, the children of deceased Sumathy. The plaint schedule property was settled in favour of Sumathy under Ext.A1 settlement deed dated 11.4.1988 by the first defendant reserving life interest with her. Sumathy died on 14.10.1989. Respondents 1 to 4 would claim that on the death of RSA 975/2004 2 Sumathy, her rights devolved on them and thus subject to life interest of the first defendant, they have absolute right over the plaint schedule property and first appellant is the sister of Sumathy and second appellant is her husband and first appellant permitted them to occupy the building temporarily on the undertaking that they will vacate the building within a reasonable time. In spite of the request, they did not surrender possession of the building. Therefore respondents 1 to 4 claimed the decree for recovery of possession of the building. Appellants resisted the suit admitting that plaint schedule property originally belonged to Kochayyan Kunju, the father who had ten cents as kudikidappu right. Subsequently as per an agreement entered into with the owner of the property, he agreed to purchase 90 cents. On 15.10.1974, father executed a registered will by which large portion of the property was set apart to the first appellant. After execution of the will, father was ill. Therefore the properties were purchased in the name of the first defendant mother. As per the understanding at the time of the marriage that plaint schedule property would be given to them, they are residing in the building since 1973. Later they reconstructed the building by RSA 975/2004 3 spending Rs.40,000/-. Though under Ext.A1 settlement deed property was given to Sumathy, it was obtained by exercising undue influence on the first defendant. The right, if any, of respondents 1 to 4 is lost by adverse possession, as appellants have been in exclusive possession of the property and the building from 1973 onwards. 2. Learned Munsiff on the evidence of PW1, DWs 1 to 3, Exts.A1 to A6 and B1 to B8 found that under Ext.A1 settlement deed, Sumathy had title to the plaint schedule property and on the death of Sumathy on 14.10.1989, her rights devolved on her husband and children respondents 1 to 4 and therefore they have title to the property. Learned Munsiff also found that occupation of the house by the appellants is only as permitted by Sumathy and possession was not adverse to Sumathy or respondents 1 to 4 and therefore respondents 1 to 4 are entitled to a decree for declaration of their title and recovery of possession. The suit was decreed. Appellants challenged the decree and judgment before District Court, Kottayam in A.S.23 of 1997. Learned Additional District Judge, on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is RSA 975/2004 4 challenged in the second appeal. 3. Second appeal was admitted formulating the following substantial questions of law. 1) Are not the courts below in serious error in taking the view that there is sufficient pleadings in the written statement of defendants 2 and 3 in support of their contention that they are entitled to the benefit of Section 60(b) of the Easement Act. 2) Are not the courts below in serious error in overlooking the principles of law namely when parties have joined issue and courted evidence on the same then lack of plea even if it is there is of no consequence unless the party who relies on want of pleadings proves prejudice.” 4. Learned counsel appearing for the appellants and respondents were heard. Though appellants raised a contention before the trial court that Ext.A1 settlement deed was vitiated by undue influence, no evidence was adduced in support of the plea. Evidence establish that plaint schedule property originally belonged to first defendant mother and the first defendant executed Ext.A1 settlement deed whereunder plaint schedule RSA 975/2004 5 property was transferred in favour of her daugher Sumathy subject to her life interest. Ext.A2 series of tax receipts establish that the settlement deed was accepted and acted upon and tax was being paid by Sumathy and subsequent to her death, by respondents 1 to 4. Sumathy died on 14.10.1989. Therefore, as rightly found by the courts below, her right in the plaint schedule property devolved on respondents 1 to 4, the husband and children. In the light of the evidence, finding of the courts below that Sumathy had title to the plaint schedule property and on her death, respondents 1 to 4 are the owners of the plaint schedule property is perfectly correct. 5. Though it was contended that the title of Sumathy was lost by adverse possession and limitation, trial court and first appellate court on proper appreciation of evidence found that possession of the house in the plaint schedule property was as permitted by Sumathy and possession of the appellants is not adverse to Sumathy or respondents 1 to 4. On the evidence, that factual finding is also correct. In fact, appeal was not admitted on these questions. Appeal was admitted only on the question whether appellants are entitled to the benefit under Section 60 RSA 975/2004 6 (b) of Indian Easement Act. To claim the benefit of Section 60(b) of Indian Easement Act, there should be a plea that there was a license and acting upon the license, appellants have executed work of a permanent character and incurred expenses in the execution. There is no plea in the written statement that appellants are in possession of the plaint schedule property, pursuant to a license granted or acting upon the license they executed work of permanent character and incurred expenses in its execution. What was contended by the appellants in the written statement was that plaint schedule property was agreed to be given to them at the time of their marriage and from 1973 onwards they are residing in the property and while so, the house was reconstructed spending Rs.40,000/-. That is not execution of work acting upon the license so as to claim the benefit under Section 60(b) of Indian Easement Act. In such circumstances, it could only be found that appellants are not entitled to the benefit provided under Section 60(b) of Indian Easement Act. There was no claim for value of improvements. Hence there is no merit in the appeal. The appeal can only be dismissed. RSA 975/2004 7 6. Learned counsel appearing for the appellants then submitted that as appellants have been residing in the building in the plaint schedule property from 1973 they may be granted one year time for surrender of vacant possession of the building. It was opposed by the respondents 1 to 4. Considering the fact that appellants have been residing in the plaint schedule building, though according to respondents 1 to 4 as permitted by them from 1988 onwards, appellants are granted six months time to surrender vacant possession of the building on terms. 7. Appeal is dismissed confirming the decree granted by the courts below. If appellants file an affidavit undertaking unconditional surrender of the building in the plaint schedule property on expiry of six months from today, the decree shall not be executed for six months. The affidavit shall be filed within a period of three weeks from today and if no such affidavit is filed, respondents 1 to 4 are entitled to get the decree executed. M.SASIDHARAN NAMBIAR, JUDGE lgk