IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 AS.No. 187 of 1989() ---------------------------- OS.119/1985 of SUB COURT, KASARAGOD .................... APPELLANT(S): DEFENDANTS ------------------------- 1. MAMMAKKE ALIAS LAXMI,D/O.MUTHAKKE, KADAMBAR HOUSE, KADAMBAR VILLAGE, KASARAGOD TALUK. *(DIED). 2. RAVINDRANATHA SHETTY,S/O.MAMMAKKE, IN DO. DO. * APPELLANT NO.2 IS RECORDED AS THE LEGAL REPRESEN- TATIVE OF THE DECEASED APPELLANT NO.1 AS PER ORDER DATED 04/04/08 IN MEMO DATED 11/3/08 IN AS 187/89. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE BY ADVS. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): RESPONDENT/PLAINTIFF --------------------------------- * 1. P.JAYARAMA SHETTY,S/O.NARAYANA SHETTY, RESIDING IN PARVOOR HOUSE, PARVOOR VILLAGE,P.O. PARVOOR, MANGALORE TALUK,KARNATAKA STATE. * ADDL.R2 IMPLEADED. 2. SHAKUNTHALA SHETTY,W/O.LATE P.JAYARAMA SHETTY, RESIDING AT PAVOOR HOUSE, PAVOOR VILLAGE, P.O.PAVOOR,KASARAGOD TALUK AND DISTRICT. AS LEGAL REPRESENTATIVE OF THE DECEASED SOLE RESPONDENT IS IMPLEADED AS ADDL.R2 VIDE ORDER DT.29/1/2010 IN IA. 1558/08. ADDL. R2 BY ADV. SRI.D.KRISHNA PRASAD, SRI.D.NARENDRANATH, SMT.P.L.MARY TREASA. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J ===================== A.S. No.187 OF 1989 ===================== Dated this the 27th day of May 2010 JUDGMENT This appeal is preferred against the judgment and decree of the Sub Court, Kasargod in O.S.No.119 of 1985. The suit is one for recovery of possession of the plaint schedule property with mesne profits. The brief facts necessary for the disposal of the appeal are stated as follows: There was one Muthakke, who had children by name Smt.Sheshamma, Vittalamerla, Mammakke, Lalitha and Sajeeva Marla. This Mammakke is the first defendant and the second defendant is the son. It is contended in the plaint that the plaint schedule property was allotted to the share of Smt.Sheshamma as per partition of 1957. It was in the possession of the tenant one Sanjeeva Sapalya and the said tenant by virtue of a registered document had transferred the property in favour of the plaintiff on 9.9.1965 which is covered by Ext.A1. It is submitted that the plaintiff was in possession of the property from that date and ultimately he obtained a certificate of purchase from the Land AS 187/1989 -:2:- Tribunal. There was a trespass on 15.8.1985 and hence the suit is filed for recovery of possession. 2. On the other hand, the defendants would contend that the plaintiff has no title to the property and that the second defendant is in possession and enjoyment of A schedule property openly, peacefully and as of right for more than 12 years and thereby the right of the plaintiff is lost by adverse possession. It is submitted that the suit is filed at the instigation of Sajeev Marla, the brother of the first defendant. It is also their case that for the assignment deed Ext.A1 the entire consideration was paid by the second defendant and when he came to the native place in the year 1970 from that date onwards he is in direct possession and enjoyment of A schedule property. Or, in other words, it is contended that Ext.A1 was taken in the name of the plaintiff for the convenience of Sajeev Marla. It is also further contended that the sale is only a benami one and it is only intended for the benefit of the second defendant. By virtue of a Will executed by Sheshamma the property had devolved upon the wife of the second defendant and therefore the plaintiff is not entitled to any relief. AS 187/1989 -:3:- 3. In the trial court, Exts.A1 to A9 and C1 and C2 were marked. Pw1 and DW1 were examined. On analysis of the materials, the court below held that the plaintiff is entitled to get recovery of possession on the strength of title with mesne profits. It is against that decision, the appeal is preferred. 4. From the memorandum of appeal, the points that emerge for determination are:(1) regarding the right of the plaintiff over the plaint schedule property and secondly whether if at all there is any right is it lost by adverse possession and limitation. 5. Point No.1. The first point deals with the title of the plaintiff over the property. Ext.A1 is the assignment deed executed by then tenant of the property transferring the tenancy right in favour of the plaintiff by virtue of Ext.A1 dated 9.9.1965. The existence of such a document is admitted by the contesting defendants as well. But the defendants would contend that the consideration for the sale was paid by the second defendant while he was working in Bombay and actually the property was purchased for his benefit with his consideration and therefore the plaintiff is only a name lender or a AS 187/1989 -:4:- benami and no right is vested in the plaintiff at all. I feel that the said argument cannot be entertained for the reason that admittedly during the pendency of the suit and before the disposal of the suit, the Benami Transactions (Prohibition) Act has come into being and such a defence is taken away from the person who sets up the benami transactions. So, what is available is Ext.A1 which shows that the property had been transferred in favour of the plaintiff and therefore the plaintiff has succeeded in proving his title. 6.Point No.2. This point deals with the question of adverse possession and limitation. Before embarking upon facts it is desirable to state the principles to be followed in finding out adverse possession and limitation. In the decision reported in Annakili v. A Vedanayagam and others(AIR 2008 SC 346) in paragraph 22 the Supreme Court has clearly held as follows: “Claim by adverse possession has two elements:(1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a AS 187/1989 -:5:- well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title”. The Supreme Court has also held in the decision reported in Karnataka Board of Wakf v. Government of India and others(2004 SAR(Civil) 535) as follows: “11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle AS 187/1989 -:6:- that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See:S.M.Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi(1993) 4 SCC 375 and D.N.Venkatarayappa v. State of Karnataka(1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his AS 187/1989 -:7:- possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession (Dr.Mahesh Chand Sharma v. Raj Kumari Sharma(1996) 8 SCC 128)”. 7. So in order to arrive at a decision, it has to be proved that not only there was possession for the prescribed statutory period, it must be proved that it was with the knowledge of the original title holder even though it is not necessary that the said person has to be informed about the adverse possession. So far as this case is concerned, the contesting defendants have never admitted the title of the plaintiff. Or, in other words, they are setting up a title independently by themselves. That is, when the property was purchased on 9.9.1965, the contention is that the plaintiff is the only benamidar and the property is purchased with the funds of the second defendant and when he came to the place in 1970 he took possession of the property and it is very clear that the trend of the contention is that he had become the owner of the property on the AS 187/1989 -:8:- date of Ext.A1 and came into direct possession in 1970. There is nothing to show that at any point of time any where these defendants have even evasively admitted the title of the plaintiff. As held by the Supreme Court what is absolutely necessary in a case of adverse possession is the hostile animus. Hostile animus should relate to a person and that hostile animus should be against the title holder of the property. 8.Learned counsel for the appellants would strongly contend before me that a perusal of the Commissioner's report would reveal that this property and the remaining properties owned and possessed by the second defendant are lying as a single compact compound and therefore the long possession stands established. The Commissioner's report would reveal about the fence, gate, etc. and according to the Commissioner, the fence is aged about 10 years. As discussed by me earlier, the mere possession even if proved is not sufficient to constitute adverse possession. On the contra, the plaintiff has produced documents in the form of Exts.A1 to A9. The appellate authority by virtue of Ext.A3 order has issued a certificate of purchase. That AS 187/1989 -:9:- certificate of purchase is not challenged by nobody at all now. Under Section 72(k) of the Kerala Land Reforms Act the issue of certificate of purchase is a conclusive proof of tenancy and the object under Section 72 of the Kerala Land Reforms Act is to confer fixity of tenure to a cultivating tenant. Therefore Ext.A3 prima facie establishes the factum of a cultivating tenant on the plaintiff. Ext.A6 series would reveal that the assessment receipt, etc. are obtained by the plaintiff and he has produced the same. It is at this juncture reference may be made to the evidence of DW1. DW1 would depose that he has been in the habit of paying revenue for the property. He would submit that he has got some receipts for payment of the land revenue. The receipts relating to the period 1970 to 1975 had been taken away by Sajeev Marla. But it is admitted by him that after 1975 he has got the receipts. He has also denied the suggestion that he is not paying the basic tax. But not even a scrap of paper evidencing payment of land revenue to the property is produced by him. It may be contended that in a case of benami when the documents stand in the name of a particular person receipts also should be in the name of the very same person and may not be of such AS 187/1989 -:10:- relevance. But even in such circumstances, it is the custody and possession of the original documents and original receipts that looms large. In this case the original of the title deed as well as the tax receipts are produced by the plaintiff and not by the defendants. So the general presumption that the person in possession pays tax has to be followed and it is not rebutted by any cogent materials in this case. The contention of the learned counsel for the appellants regarding the argument of adverse possession on the basis of the Commissioner's report and the averments in paragraphs 4 and 7 would not lead the court to come to the conclusion regarding establishment of adverse possession and limitation. From the materials available, I have no hesitation to hold that the defendants have not satisfactorily established the hostile animus or they have never stated anywhere from which date their possession has become adverse to the interest of the plaintiff and further there are no positive materials to hold the long possession as contended by the defendants. Therefore I find that the trial court did not err in finding that the defendants have not succeeded in proving the case of adverse AS 187/1989 -:11:- possession and limitation. From these discussions, I find that there is no merit in this appeal. Hence it is dismissed. But, I direct the parties to bear their respective costs. M.N.KRISHNAN, JUDGE Cdp/-