IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 SA.NO. 899 OF 1996() ------------------------------- (AGAINST A.S. NO.22 OF 1988, SUB COURT, OTTAPPALAM AGAINST O.S. NO.18 OF 1985, MUNSIFF'S COURT, OTTAPPALAM) APPELLANT(S) - IST APPELLANT - IST DEFENDANT: ---------------------------------------------------------------- SANKARAN, S/O. POOVATHINGAL SANKU, AGED 69 YEARS, THIKKANGODE AMSOM, CHOROTTOR AMSOM, OTTAPPALAM TALUK. BY ADV. SRI.P.RAVINDRAN, SENIOR ADVOCATE RESPONDENT(S) - RESPONDENT - APPELLANTS - PLAINTIFFS & DEFENDANTS: -------------------------------------------------------------------------------------- 1. PARVATHI, W/O. POYATHINGAL MADHAVAN, KANIAMPURAM AMSOM, PANAMANNA DESOM OTTAPPALAM TALUK. 2. VASUDEVAN, S/O. POVATHINGAL MADHAVAN, DO. DO. DO. 3. SOBHANA, D/O. DO. DO. 4. SETHUMADHAVAN, S/O. DO. DO. 5. SUDHAKARAN, S/O. DO., THRIKKANGODE AMSOM, CHOROTTUR AMSOM, OTTAPPALAM TALUK. 6. MOHANAN, S/O. DO. DO. DO. 7. SAROJINI, W/O.DO. DO. 8. MURALIDHAAN, S/O. DO. DO. 9. SUJATHA, D/O. DO. DO. 10. AJITHA, D/O. DO. DO. 11. PRASANNA, D/O. DO. DO. ADV. SRI.P.DEEPAK THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.899 of 1996 -------------------------------------- Dated this the 6th day of March, 2009. JUDGMENT Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 2. Defendant No.1 has preferred this Second Appeal challenging the concurrent findings entered by the courts below that the suit property belonged to the plaintiffs and rejecting the claim of the defendants that they have perfected title by adverse possession and limitation. Learned Munsiff granted a decree for recovery of possession of the suit property on the strength of title of the plaintiffs which the first appellate court concurred. 3. The substantial questions of law arising for a decision are: (i) Whether the finding of the courts below that defendant No.1 has no title in the property when it is evident that pattom was paid by him from 1960 onwards is correct? (ii) Is there not a presumption that house standing in the name of defendant No.1/appellant is constructed by him and whether the courts below were right in holding that the house belonged to the plaintiffs? SA No.899/1996 2 (iii) Has not defendant No.1 perfected title over the suit property by adverse possession and limitation? (iv) Whether the courts below committed irregularity in not framing an issue on the plea of benamidar raised by defendant No.1? 4. Short facts necessary for consideration of the above substantial questions of law are: The first plaintiff is the widow and plaintiffs 2 to 4 are the children of Madhavan who is the brother of defendant No.1/appellant. Plaintiffs claimed that the suit property - 1.13 acres - was acquired by late Madhavan as per assignment deed dated 6.12.1960 (Ext.A1 is its registration copy) and that after the death of Madhavan, plaintiffs stayed in the house in the suit property for sometime but later, on 20.4.1976 they shifted residence to the paternal house of plaintiff No.1 after appointing defendant No.1 as the care taker of the house and property. Defendants are now staying in the building in the suit property. Demanding vacant possession, plaintiffs issued Ext.A3, notice dated 2.12.1984 to the defendants. To that, defendant No.1 issued Ext.A3, reply dated 12.12.1984 claiming that though the property was acquired by Madhavan, husband of plaintiff No.1 in the year 1960, right from that time onwards defendant No.1 is in possession and enjoyment of the suit property where he constructed a house and started residence with family, that possession was against the title of Madhavan and hence, he has perfected title by adverse possession and the law of limitation. In view of that reply, plaintiffs laid the suit for recovery of possession of the suit property on the strength of title. SA No.899/1996 3 Defendant No.1 contended that plaintiffs or Madhavan had no possession of the suit property at any point of time and that he constructed the house in the property in the year 1972 and is residing there since then. He also claimed that he has perfected title by adverse possession and limitation. Learned Munsiff framed the issue whether the title of plaintiffs is lost by adverse possession and limitation, answered the issue in favour of the plaintiffs and decreed the suit. First appellate court concurred with the finding of the learned Munsiff. It is contended by the learned counsel for defendant No.1 that the courts below did not take into consideration the evidence let in by defendant No.1 which revealed that the house was constructed only in the year 1972. According to the learned counsel, evidence would show that building was assessed in the name of defendant No.1 right from 1972 onwards as against the claim of the plaintiffs that defendant No.1 was appointed as the care taker on 20.4.1976. Learned counsel further contended that Ext.T1 series would show that defendant No.1 is the owner of the building and that assessment has been made by the authorities concerned under the provisions of the Kerala Panchayat Raj (Building Tax and Surcharge thereon) Rules, 1996, no challenge was made by the plaintiffs to that assessment and hence, prima facie defendant No.1 is the owner of the building. According to the learned counsel, DW2 , the carpenter has given evidence that he constructed the building as per the direction of defendant No.1 which is corroborated by Ext.T1 series and Exts.B1 to B5 as well which was not properly appreciated by the courts below. Further contention is that the courts below did not frame an issue whether defendant No.1 has perfected title by adverse possession and SA No.899/1996 4 limitation and at any rate, an issue regarding benami pleaded by defendant No.1. Learned counsel for the plaintiffs supported the concurrent findings entered by the courts below. 5. That, late Madhavan acquired the suit property as per Ext.A1 is not under challenge for, there is no contention otherwise in the written statement and going by Ext.A4, reply notice dated 12.12.1984 defendant No.1 admitted that the document of title stood in the name of late Madhavan though according to defendant No.1, late Madhavan was not in possession of the suit property. Even in the plaint no challenge is made to Ext.A1. Therefore, Ext.A1 has to stand. 6. When the plaintiffs sued for recovery of the possession of the property on the strength of title and that title is proved , the defence available to the defendants is adverse possession and limitation for the statutory period thereby extinguishing the title of the plaintiffs under Section 27 of the Limitation Act. Though in the evidence defendant No.1(DW1) stated that the document of title was taken by him in the name of late Madhavan, there was no such plea in the written statement (or even in Ext.A4, reply dated 12.12.1984). In the absence of any such contention raised in the written statement, the trial court was not obliged to raise any issue regarding benami. There is also no evidence to support the contention that Ext.A1 was taken by defendant No.1 in the name SA No.899/1996 5 of late Madhavan. Hence, the question for consideration is whether defendant No.1 had constructed the building or perfected title over the suit property by adverse possession and limitation. 7. According to the plaintiffs, the construction of the house was not completed during the life time of late Madhavan (he died in the year 1968). Construction was completed only thereafter and according to the plaintiffs they appointed defendant No.1 as the care taker of the house on 20.4.1976 while themselves shifted to the paternal house of plaintiff No.1. Ext.B1 is the plan for the construction of the house produced by defendant No.1 allegedly prepared by DW2, the carpenter. DW2 ofcourse gave evidence that he constructed the house in the suit property as per the direction of defendant No.1. Ext.B2 series and Exts.B3 and B5 are receipts for payment of building tax, the earliest being dated 14.12.1976 and the latest being dated 5.8.1986. Ext.B4 is a certificate dated 19.6.1986 issued by the Executive Officer of the local authority concerned certifying that the ownership of building No.5/1983 is registered in the name of defendant No.1 in that local authority. Ext.T1 series, extract of building assessment register are for the period from 1972-73 onwards. DW3 is the clerk of the local authority who proved Ext.T1 series but he has no direct information about the matters stated therein and spoke only from the records. In fact , he was not even able to say whether the different house numbers referred to in Ext.T1 series related to the same house. In re-examination, he stated that during the every assessment (every five year) the house number will change. SA No.899/1996 6 But there is no acceptable evidence to show that the house numbers referred to in Ext.T1 series related to building in question. Even according to the plaintiffs, defendant N o.1 was appointed as the care taker of the house on 20.4.1976. In other words that alleged appointment comes during the assessment period from 1972-73 to 1976-77. Therefore, the possibility of the name of defendant No.1 occurring in the building assessment register as its owner at any time after 20.4.1976 (and hence in Ext.T1)cannot be ruled out. This is more probable since even defendant No.1 could not produce any receipt for payment of building tax prior to 14.12.1976. Moreover, payment of building tax cannot confer ownership of the building since under law, an owner or occupier of the building is obliged to pay the building tax. 8. No doubt, the rule under English Law that 'whatever is affixed to the soil belongs to the soil' is not applicable in India and hence the land as well as building could be owned by different persons but in that case, there must be acceptable evidence in that line. Here, though defendant No.1 as DW1 claimed that he has maintained accounts for the house construction, no such accounts are produced and relying the evidence of DW2, the carpenter and Ext.B1 alone, a finding that the house was constructed by defendant No.1 is not possible. 9. So far as the alleged possession of the suit property by defendant No.1 prior to 20.4.1976 is concerned, there is no convincing evidence. The mere fact that the advocate commissioner assessed the oldness of the building as about 10-12 years at the time of his inspection on 15.11.1986 is not sufficient to SA No.899/1996 7 reject the case of the plaintiffs that they constructed the building. Even according to the plaintiffs, the construction of the house was completed only after Madhavan died in the year 1968. In fact, when defendant No.1 was examined as DW1, he stated that during 1972-85 he stayed in his tharawad house (and not in the house in the suit property). 10. When title of the suit property is found with the plaintiffs and a plea of adverse possession is raised by defendant No.1, he must show that he was holding the property with hostile animus to the title holder with sufficient publicity for that. The Apex Court in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan (2008 (4) KLT 357) stated: “In the eye of the 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 this 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 the true owner. It is a well- settled principle that a party claiming adverse possession must prove that this possession is “necvi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent SA No.899/1996 8 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.” I have gone through the evidence and I am satisfied that defendant No.1 has not adduced such evidence as is required to hold that the title of plaintiffs is lost by adverse possession and limitation. 11. In the Second Appeal, defendant No.1/appellant produced the photocopy of a certificate dated 7.6.1986 said to have been issued by the Executive Officer, Sri Randumoorthy Devaswom and filed C.M.P.No.1966 of 1996 to receive the document in evidence. It is seen that the petition is not even supported by an affidavit and instead, a verified petition purporting to be under Order XLI Rule 27 of the Code of Civil Procedure (for short, “the Code”) is filed. Even in that petition, none of the grounds under which additional evidence could be taken under Order XLI Rule 27 of the Code is mentioned and instead, what is stated is only that the document is highly necessary for the correct appreciation of the facts by this Court. That is not sufficient compliance of Order XLI Rule 27 of the Code. Moreover, a mere photocopy which is not even properly certified cannot be admitted in evidence. Further, even that document is dated 7.6.1986 and it is not stated when exactly defendant No.1/appellant SA No.899/1996 9 came into custody of that document. There is no explanation why the said document was not produced in any of the courts below. Hence C.M.P.No.1966 of 1996 is only to be dismissed and I do so. 12. Having gone through the entire evidence and heard both sides, I am satisfied that no substantial question of law is involved on the facts of this case and that the finding is entered on proper appreciation of evidence. Therefore, no interference is required. 13. No other point is raised for consideration. Resultantly, this Second Appeal fails. It is dismissed. No costs. C.M.P.No.1950 of 1996 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.899/1996 10 Thomas P.Joseph, J. S.A.No.899 of 1996 JUDGMENT 6th March, 2009.