IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 13TH MAY 2010 / 23RD VAISAKHA 1932 AS.No. 442 of 1996(A) ------------------------------- (AGAINST THE JUDGMENT AND DECREE IN O.S. 132/1989 DTD. 29/01/1996 OF THE SUBORDINATE JUDGES COURT, KASARAGOD – REPRESENTED AS PER THE ORDER OF THE DISTRICT JUDGE, KASARAGOD DTD. 08/07/1996 IN A.S. NO.145/1996). .................... APPELLANTS/DEFENDANTS 5 TO 12: ------------------------------------------------------ 1. SRI. SHESAPPA, AGED 48 YEARS. 2. SRI. BABU, AGED 43 YEARS. 3. SMT. JANAKI, AGED 40 YEARS. 4. SRI. ANANDA, AGED 37 YEARS. 5. SRI. YADAVA, AGED 32 YEARS. 6. KUMARI SUJATHA, AGED 28 YEARS. * 7. SRI. NARAYANA, AGED 62 YEARS (DIED). ALL ARE THE CHILDREN OF LATE KANNA BELCHAPPADA, HINDUS, LANDHOLDERS, NO.1 TO 6 ARE RESIDING NEAR BAYAR KAIKAMBA, UPPALA VILLAGE AND POST, KASARAGOD TALUK. NO.7 RESIDING AT SHANTHIPALLA, KAIPADY VILLAGE, POST KUMBLA, KASARAGOD TALUK. 8. A. JANARDHANA SHETTY, AGED 57 YEARS, HINDU, EXCISE CONTRACTOR, RESIDING NEAR AILA SRI. DURGA PARAMESWARI TEMPLE, UPPALA VILLAGE AND POST, KASARAGOD TALUK. *ADDL. APPELLANTS 9 TO 14 IMPLEADED: 9 SREEMATHI.K, W/O. NARAYANA (LATE), AGED 59 YEARS, 10. CHANDRAHASA, AGED 40 YEARS, 11. NALINI, AGED 36 YEARS, A.S. NO. 442/1996-A: 12. MALLIKA, AGED 34 YEARS, 13. VINOD KUMAR, AGED 30 YEARS. 14. GANESH.K, AGED 28 YEARS. (NO.10 TO 14 ARE THE CHILDREN OF LATE NARAYANA, ALL ARE RESIDING AT `NARAYANA NILAYA', SHANTHIPALLA, P.O. KUMBLA, KASARAGOD DISTRICT, PIN – 671 321). *THE LEGAL HEIRS OF THE DECEASED 7TH APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 9 TO 14 – VIDE ORDER DATED 24/11/04 ON I.A. NO. 2487/2004. **ADDL.A.15 IMPLEADED: 15. SAJINA, MINOR BY GUARDIAN, REPRESENTED BY GRAND MOTHER, SMT. SREEMATHY.K, RESIDING NEAR BAYAR, KAIKAMBA, UPPLA VILLAGE AND POST, KASARAGOD TALUK. **ADDL. A.15 IS IMPLEADED VIDE ORDER DATED 20/05/05 ON I.A. 954/05. BY ADVS. SRI.P.K.MUHAMMED, C.D.SIVADAS. RESPONDENTS/PLAINTIFFS 2 TO 4 DEFENDANTS 1 TO 3: ----------------------------------------------------------------------------------- 1. SMT. KAMALA, 2. SRI. RAJENDRA, 3. SRI. DAYANANDA, NO.1 IS THE WIDOW AND NO.2 AND 3 ARE THE CHILDREN OF LATE B.M. AITHAPPA, RESIDING AT VAMANJOOR, BANGRA MANJESHWARA VILLAGE, KASARAGOD TALUK. 4. SMT. CHANDRAVATHI, 5. SMT. ANITHA, A.S. NO. 442/1996-A: 6. KUMARI SUJATHA, (NO.4 IS THE WIFE AND NO.5 AND 6 ARE CHILDREN OF KUNHIRAMAN, RESIDING NEAR SRI. SUBRAMANYA TEMPLE, NELLIKUNNU, KASARAGOD KASABA, KASARAGOD). BY ADVS. SRI.D.KRISHNA PRASAD, SRI.JOJI VARGHESE, SRI.HARI SHARMA.M. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/06/2009, ALONG WITH AS NO. 254 OF 1997 AND CROSS OBJECTION, THE COURT ON 13/05/2010 DELIVERED THE FOLLOWING: A.S. NO. 442/1996-A: ORDER ON C.M.P. NO. 2821/1996 IN A.S. NO. 442/1996-A DISMISSED 13/05/2010. SD/- K.SURENDRA MOHAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. K.SURENDRA MOHAN, J. ----------------------------------------------------- A.S.No.442 of 1996, Cross Objections in A.S.No.442 of 1996 and A.S.No.254 of 1997 ----------------------------------------------------- Dated this the 13th day of May, 2010 JUDGMENT These appeals and Cross Objections arise from the common judgment dated 29.1.1996 of the Court of the Subordinate Judge of Kasargod in O.S.Nos.132 of 1989 and 134 of 1992. Since the appeals and Cross Objections are connected, they are disposed of together. 2. The property in dispute is more or less the same being an extent of 48 cents comprised in R.S.No.176/3 of Uppla Village, as per the plaint-A schedule in O.S.No.132 of 1989, while the extent is shown as 50 cents in the second suit, O.S.No.134 of 1989. Except for the small variation in extent, there is no dispute among the parties regarding the identity of the property. 3. O.S.No.132 of 1989 of the Sub Court, Kasargod is for partition, while O.S.No.134 of 1992 is for a declaration and permanent prohibitory injunction. The court below has decreed O.S.No.132 of 1989 and has dismissed O.S.No.134 of 1992. A.S.No.442 of 1996 is filed by defendants 5 to 12 A.S.No.442/1996& conn.cases 2 challenging the decree in O.S.No.132 of 1989. The plaintiffs and defendants 1 to 3 have filed cross objections challenging the decree in O.S.No.132 of 1989, to the extent it awards value of improvements to defendants 5 to 12. A.S.No.254 of 1997 is filed by the plaintiffs in O.S.No.134 of 1992 challenging the dismissal of the suit. 4. The suits were filed in the following facts and circumstances: The plaint schedule property in both the suits, originally belonged to one Dheramma. As per Ext.B15 document, she assigned her rights in the property to her daughter Manjamma. The document is dated 30.9.1947. Manjamma was in possession and enjoyment of the property till her death. She had two sons, Aithappa and Kunjirama. Kunjirama left the place on the death of his mother and has been unheard of eversince. Therefore, he is presumed dead. On the death of Manjamma, it is alleged that the ownership rights in respect of the property devolved upon her two sons, viz., Aithappa and A.S.No.442/1996& conn.cases 3 wife and children of Kunjirama. One Kanna Belichappada, the brother of Manjamma was permitted by an oral lease to conduct a shop in one of the buildings situate in the property. He was also residing in the shop. He claimed that he was a tenant entitled to fixity of tenure under the Kerala Land Reforms Act, 1963. He filed O.A.No.2350 of 1976. However, he could not establish his claim and the O.A. was dismissed. The dismissal of the O.A. was confirmed in appeal as well as in CRP No.2537 of 1982 by this Court on 3.11.1988. Thus, the case of tenancy set up by Kanna Belichappada was negatived by this Court. It is thereafter that both the suits mentioned above, viz. O.S.No.132 of 1989 and O.S.No.134 of 1992 were filed before the Sub Court, Kasargod. 5. As noticed above, O.S.No.132 of 1989 is filed for partition of the plaint-A schedule property into two shares, and allotment of one share to Aithappa, who is the son of Manjamma and the other to the wife and children of Kunjirama, the second son. During the A.S.No.442/1996& conn.cases 4 pendency of the suit, Aithappa died and his legal representatives, wife and children have been impleaded as supplemental plaintiffs 2, 3 and 4. Defendants 1 to 3 are the wife and children of Kunjirama, who is unheard of and presumed dead. Defendants 4 to 11 are the wife and children of Kanna Belichappadu, who is also no more. The 12th defendant was a person who had been inducted into the property by Kanna Belichappada. He died subsequently and therefore, his possession has also come to an end. 6. According to the plaintiffs in O.S.No.132 of 1989, the plaint-A schedule property belonged to Manjamma, mother of the original plaintiff and Kunjirama, who is the husband of the first defendant and father of defendants 2 and 3. Manjamma was in possession and enjoyment of the plaint property till her death. On her death, the property devolved on her sons, Aithappa and brother Kunjirama. Kunjirama left the village after the death of Manjamma, he is unheard of for more than 20 years and is presumed dead. Therefore, the plaintiffs, who are the A.S.No.442/1996& conn.cases 5 legal heirs of Aithappa and defendants 1 to 3, are in joint possession of the suit property, since they are the only legal heirs of late Manjamma, entitled to succeed to her estate. According to the plaintiffs, the property therefore, had to be divided into two and the plaintiffs are entitled to get half share in the property. Defendants 1 to 3 are entitled to the remaining half. Kanna Belichappada, brother of Manjamma, who was the husband of the fourth defendant and the father of defendants 5 to 11, had filed O.A.No.724/1971 which was renumbered as O.A.No.2350/1976 before the Land Tribunal claiming fixity of tenure in respect of the suit property. The same was dismissed and the dismissal was confirmed in appeal, A.A.No.1718 of 1983. Though Kanna Belichappada filed C.R.P.No.2537/1982 before this Court, the same was also dismissed. During the pendency of the C.R.P., Kanna Belichappada died and defendants 4 to 11 were impleaded as his legal representatives. Thus, the claim of defendants 4 to 11, the tenants of the Plaint-A schedule property was A.S.No.442/1996& conn.cases 6 negatived. The plaintiffs contended that Kanna Belichappada was only in permissive occupation of the shop building, a portion of which was used by him as his residence. According to the plaintiffs, a few months prior to his death, Kanna Belichappada had put up two unauthorised structures in the property and inducted the 12th defendant into the same. Though a registered notice dated 20.3.1989 was issued calling upon defendants 1 to 3 to partition the property, they did not comply. Therefore, they prayed for partition of the property into two equal shares and allotment of one share to the plaintiffs with future mesne profits. 7. Later on, the suit was amended incorporating an allegation to the effect that defendants 4 to 11 had reduced the suit property to their unlawful possession on 15.4.1995. The plaintiffs alleged that defendants 4 to 11 are in unlawful possession of the property. They also alleged that defendants 4 to 11 have not made any improvements in the property and that they were not entitled to claim any value of improvements. An A.S.No.442/1996& conn.cases 7 additional prayer for evicting defendants 4 to 11 from plaint-A schedule property with future mesne profits was also incorporated in the plaint. Defendants 1 to 3 filed written statement supporting the contentions of the plaintiffs and prayed for partition of the property. 8. The suit was contested by defendants 4 to 6, 8, 9 and 11 by filing a joint written statement. According to them, the plaintiffs do not have any title to the suit property. Manjamma was never in possession of the plaint-A schedule property and the property did not belong to her. During her life time, she never exercised any act of possession over the property. They contended that, Kanna Belichappada was in actual possession and enjoyment of the same. According to them, though the Land Tribunal, the Appellate Authority and this Court had rejected the case of fixity of tenure raised by Kanna Belichappada, it was found that he was in possession of the property by all the authorities. Therefore, the contention that the plaintiffs and defendants 1 to 3 were in joint possession of the property was not true. A.S.No.442/1996& conn.cases 8 According to them, plaint-A schedule property contains a tiled residential house, a thatched house, shop buildings, coconut trees and other fruit bearing trees. All the improvements existing in the plaint-A schedule property were effected by deceased Kanna Belichappada and after his death by defendants 4 to 11. They denied the allegation that Kanna Belichappada was in permissive occupation of the shop building and that a portion thereof was being used for his residence. Kanna Belichappada was paying tax in respect of the suit property till his death and thereafter defendants 4 to 11 were paying the same. They contended that the plaintiffs and defendants 1 to 3 had no manner of rights over the plaint-A schedule property. The property was in the possession of Kanna Belichappada, since 1945. The possession of Kanna Belichappada was known to Manjamma. During her life time, she did not raise any objections either regarding the possession of Kanna Belichappada or with respect to the improvements made by him in the property. Kanna Belichappada was in A.S.No.442/1996& conn.cases 9 actual possession and enjoyment of the plaint-A schedule property bonafide believing that it was his property. He effected improvements in his own right, bonafide believing that he had such a right. After his death, defendants 4 to 11 are enjoying the property openly, uninterruptedly and without any objection from any person. They have been in possession and enjoyment of the plaint-A schedule property adverse to the interests of Manjamma, the plaintiffs, Kunjirama and defendants 1 to 3. Thus, Kanna Belichappada had perfected his title over the plaint-A schedule property by adverse possession and limitation and therefore the rights of the plaintiffs and defendants, if any, over the property are extinguished. Therefore, they contended that the property was not available for partition. 9. Defendants 5 to 11 filed additional written statement, after amendment of the plaint contending that there was no trespass into the plaint schedule property, as alleged. They denied that they had reduced the property to their unlawful possession on 15.4.1995. A.S.No.442/1996& conn.cases 10 According to them, defendants 4 to 11 are in lawful possession and hence, the plaintiffs are not entitled to recover possession of the property on the strength of the title that they claim in respect of the suit property. The plaintiffs and their predecessors were not in possession thereof. They claimed that the property had been in the possession of Kanna Belichappada and thereafter in their possession continuously, since 1945. They had taken out a commission to inspect the property and the petition to amend the plaint was filed, after seeing the report of the Advocate Commissioner. Kanna Belichappada had perfected his title over the plaint-A schedule property by adverse possession and limitation. For the above reasons, they prayed for dismissal of the suit. 10. The second suit O.S.No.134 of 1992 has been filed by defendants 4 to 11 in O.S.No.132 of 1989. They contend that the plaint-A schedule property is in their exclusive possession and enjoyment. The property originally belonged to Dheramma in Jenmam. Kanna Belichappada, who is the son of Dheramma, obtained the A.S.No.442/1996& conn.cases 11 property on lease from her. At the time of lease, it was only a vacant dry land. Kanna Belichappada constructed a thatched house and started residing there. He has made valuable improvements in the suit property. Dheramma executed a document assigning all her rights in favour of Manjamma, who is the sister of Kanna Belichappada. It is a document vitiated by fraud and collusion which is not binding on the plaintiffs and their predecessors in interest. The document did not come into effect and the property continued to be in possession of Kanna Belichappada. By their long, open and continuous possession of the plaint-A schedule property, the plaintiffs contended that they had perfected their right to the plaint-A schedule property by adverse possession and limitation. Therefore, they sought for a declaration to the said effect. 11. Defendants 1 to 3 have filed written statement disputing the claim put forward by the plaintiffs. Their contentions are a repetition of their contentions in the plaint in O.S.No.132 of 1989. Defendants 8, 9 and 10 A.S.No.442/1996& conn.cases 12 have filed a joint written statement adopting the contentions of defendants 1 to 3. The court below framed nine issues in the suits, on the basis of the above pleadings. 12. The suits were tried jointly. The third plaintiff in O.S.No.134/1992 was examined as PW1 and Exts.A1 to A106 documents were marked on his side. On behalf of the defendants, no oral evidence was adduced, but Exts.B1 to B16 were marked. Exts.C1 and C2 are the commission report and plan filed in the case. 13. The court below considered the evidence on record as well as the contentions of the rival parties and found that the plaintiffs in O.S.132/89 were the title holders in respect of the plaint schedule property and that they were entitled to a decree for partition of the said property among themselves. The plaintiffs in O.S.134/92 were found to be in unlawful possession of the plaint schedule property. Their claim that the title of the plaintiffs in O.S.132/89 was lost by adverse possession and limitation was found against. A.S.No.442/1996& conn.cases 13 Therefore, they were directed to surrender vacant possession of the plaint schedule property to the title holders. However, they were held entitled to recover value of improvements alleged to have been effected by them and it has also been held that they were entitled to get the value of all their improvements on their surrendering vacant possession of the property. Thus, O.S 132/89 has been decreed and O.S.134/92 has been dismissed. The present appeals and cross objections challenge the above decrees and findings of the court below. 14. I have heard the counsel for the appellants and the respondents in detail. I have been taken through the pleadings in the case, the oral evidence as well as the voluminous documentary evidence adduced by the parties. I have anxiously considered the rival contentions of the parties. The points that arise for consideration in these cases are:- 1. Whether the plea of adverse possession set up by the appellants to resist the action for A.S.No.442/1996& conn.cases 14 recovery of possession on the strength of title is sustainable? 2. Whether the award of value of improvements by the court below is sustainable? 15. Point No1 : It is admitted by all parties that the plaint schedule property originally belonged to Dheramma. She gave the property to her daughter Manjamma as per Ext.B15, a registered sale deed No:582/47 of Manjeswara Sub Registry. The above document is also admitted by all the parties, the only contention of the defence against the document being, that the same had not taken effect. Manjamma had two sons, Aithappa and Kunjurama. Kunjurama left the place on the death of his mother, has been unheard of ever since and is presumed dead. His wife and children are defendants 1 to 3 in O.S.132/89. The suit was originally instituted by Aithappa for partition of the suit property. During the pendency of the suit he passed away and his legal representatives are brought on party array as plaintiffs 2 to 4. One Kanna A.S.No.442/1996& conn.cases 15 Belichappada had obtained possession of the suit property on the basis of an oral lease granted by Dheramma in 1945. Thereafter, he is alleged to have been in occupation of the property effecting valuable improvements therein. Defendants 4 to 11 in the suit are his wife and children. According to them, they are entitled to continue in possession and enjoyment of the same, having perfected their title to the property by their long and continuous user. 16. It is clear from the nature of the pleadings and evidence that late Kanna Belichappada had admitted the title of Dheramma. A perusal of Ext.B15 sale deed shows that she had conveyed her title in respect of the plaint schedule property to Manjamma. A reading of the plaint in O.S.134/92 shows that the plaintiffs therein admit the execution of Ext.B15 document. Exts.A1 to A7, A15, A86 and Ext.B6 clearly shows that Kanna Belichappada had admitted the title of Manjamma. Further, Kanna Belichappada had submitted an application for purchase of the tenancy A.S.No.442/1996& conn.cases 16 rights in respect of the suit property alleging that he was a tenant entitled to fixity of tenure under the Land Reforms Act. The said application is A 86 and is dated 21.9.1978. The same was orginally filed as O.A.No: 724/71 and was renumbered as O.A.2350/76 later. The name of Aithappa, the original plaintiff in O.S.132/89 is shown as the landlord of the plaint schedule property in A 86. In view of the above admissions by Kanna Belichappada, it has to be held that the plaint schedule property originally belonged to Dheramma and that the same was transferred by her to Manjamma as per B 15 sale deed. Consequently, the plaintiffs in O.S.132/89 who are her legal heirs have acquired title to the plaint schedule property. 17. The next plea of defendants 4 to 11 in O.S.132/89 is that they have perfected their rights in respect of the plaint A schedule property by adverse possession and limitation. According to them Kanna Belichappada had been in possession and enjoyment of the property from the year 1945 onwards. Since his A.S.No.442/1996& conn.cases 17 possession was continuous, open and adverse to that of the title holders, it is contended that the title in respect of the property has been lost by adverse possession and limitation. It is to be noted that Kanna Belichappada is alleged to have obtained possession of the plaint schdule property as per an oral lease granted by Dheramma. Kanna Belichappada is the brother of Manjamma. According to the plaintiffs in O.S.No.132 of 1989, he was permitted only to conduct business from a building that was existing in the suit property, but later on, he started residing in the property. According to them he reduced the rest of the property to his possession only in 1988. 18. Late Kanna Belichappada had filed O.A.No: 2350/1976 before the land Tribunal claiming fixity of tenure under the Kerala Land Reforms Act alleging that he was a tenant in respect of the plaint schedule property. However, the land Tribunal rejected his claim. He challenged the order of the Land Tribunal before the Appellate Authority without any success. A.S.No.442/1996& conn.cases 18 He also filed CRP 2537/1983 before this Court against the order of the Appellate Authority. The CRP was also dismissed on 3.11.1988, which has become final. Thus, his claim for tenancy stood finally rejected only as per the order of this Court in CRP 2537/1983 dated 3.11.1988. Exts.B6, A86, B7 and B1 documents are relied upon by the plaintiffs to substantiate their contention that all along the case of Kanna Belichappada was that he was a tenant in respect of the property. According to the plaintiffs in O.S.132/89 the plea of tenancy put forward by Kanna Belichappada presupposes permissive occupation which cannot be considered to be adverse to the title of the land lord at any time. Having pursued the plea of tenancy upto 3.11.1988 the date of the order in the CRP 2537/83, it is not open to them to turn around and contend that their possession had been adverse to that of the plaintiffs all along. Defendants 4 to 11 in the said suit on the other hand place reliance on Exts.A1 to A85 and A87 to A106 to contend that they had been in A.S.No.442/1996& conn.cases 19 continuous possession of the property. According to them the said documents also show that their possession was adverse to that of the title holders. 19. It is no doubt clear that Exts.A1 to A85 and A87 to 106 documents evidence the long and continuous possession of Kanna Belichappada in respect of the suit property. However, it is clear from Ext.B7 that he had been continuing in possession as the tenant of the said property. In Ext.B7, the name of the original plaintiff in O.S.132/89, viz., Aithappa is shown as the name of the landlord. Not being satisfied with the order of the Land Tribunal rejecting his claim of tenancy, he vigorously pursued the contention through the appellate authority upto this Court. His claim was finally rejected as stated above only on 3.11.1988. Therefore, upto 3.11.1988, he cannot be said to have had any hostile animus in respect of the property. Since the suit has been filed in 1989, even if it is presumed that he had developed a hostile animus thereafter, his possession has not A.S.No.442/1996& conn.cases 20 continued for the statutory period required for perfecting his title in respect of the property. The question of adverse possession is dependent mainly on the mental element of the person who exercises his possession in respect of the property. There is no evidence on record to show that late Kanna Belichappada had any hostile animus in respect of the property at any time prior to 1988. On the contrary, the evidence clearly establish that he had understood his rights in the property to be tenancy rights and that he had been claiming the said rights in respect of the property upto 3.11.1988. In view of the above, the claim of adverse possession that has been raised has to fail, as rightly held by the court below. 20. It can be seen from the above that the plaintiffs in O.S.132/89 are the title holders in respect of the plaint schedule property. Since the claim of adverse possession put forward by defendants 4 to 11 has been found against, there is no other impediment disentitling the plaintiffs from claiming recovery of A.S.No.442/1996& conn.cases 21 possession. Therefore, they are entitled to recover possession of the plaint A schedule property from defendants 4 to 11. They are also entitled to a preliminary decree for