IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 RSA.No. 934 of 2003(C) --------------------- AS.69/2000 of DISTRICT COURT, ALAPPUZHA. OS.200/1992 of SUB COURT, ALAPPUZHA .................... APPELANTS/RESPONDENTS/PLAINTIFFS: ---------------------------------------------------- 1. LISIAMMA JOSEPH, W/O. JOSEPH, MARATHINAL, VELIYANADU MURI, VELIYANADU VILLAGE, KUTTANADU TALUK, ALAPPUZHA. 2. THRESIAMMA D/O. JOSEPH, DO. DO. 3. MATHEW, S/O. JOSEPH, DO. DO. BY ADV. SRI.JOHN JOSEPH VETTIKAD SRI.SABU GEORGE RESPONDENTS/ APPELLANT/DEFENDANTS: ----------------------------------- * 1. M.S.JOSEPH @ M.S.JOSE, S/O. AVIRA DEVASIA, MALIYEPURACKAL, PULINKUNNU VILLAGE, PULINKUNNU MURI, KUTTANAD TALUK, ALAPPUZHA. $ 2. CHACKO CHACKO, (DIED, LRs. RECORDED) THEKKEVEETTIL PAIPPADU MURI, PAIPPADU VILLAGE FROM MARATHINAL, VELIYANADU MURI, VELIYANADU VILLAGE. 3. CHINNAMMA SEBASTIAN (DIED, LRs. RECORDED) W/O. LATE AVIRA DEVASIA, LRs RECORDED MALIYEPURACKAL, PULINCUNNU * 4. M.S.ABRAHAM, MALIYEPURACKAL, BANK COLONY JANATHA ROAD, PALARIVATTOM, ERNAKULAM. *5. LISSY VARGHESE, D/O. AVIRA DEVASIA, VELLANIKKARA, CHALAKUDI. *6. AMMINI VARKEY D/O. AVIRA DEVASIA, ANTHRAPER HOUSE, ARTHUNKAL, CHERTHALA. #*7. DR.ELAMMA RAJU D/O. AVIRA DEVASIA, CHAKAYIL VEEDU, PALLIKACHIRA, CHANGANACHERRY. * 8. SUMI SEBASTIAN D/O. AVIRA DEVASIA, VETTOOR HOUSE, ETTUMANOOR, KOTTAYAM. ADDL. 9. M C THOMAS, MARATHIMAL PAIPPAD VILLAGE NALUKUDY ADDL. 10. T C MARGRET, PUTHUPARAMBIL HOUSE LAIKAD CHANGANACHERRY VILLAGE PERUNNA P O , CHANGANACHERRY (# - SERVICE OF NOTICE TO THE 7th RESPONDENT Dr. ELAMMA RAJU IS DECLARED AS COMPLETE AS PER ORDER DATED 25-06-2009 IN I.A.No.310/07) (* - RESPONDENTS 1 and 4 TO 8 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED 3rd RESPONDENT AS PER ORDER DATED 25-06-2009 IN I.A.No.311/07) ($-2nd RESPONDENT PASSED AWAY. ADDL. RESPONDENT 9 AND 10 IMPLEADED. ADDL. RESPONDENTS 9 AND 10 IMPLEADED AS Lrs. OF, DECEASED R2 AS PER ORDER DTD.07-06-2010 IN I.A.2697/2006) ADV. SRI.P.JACOB VARGHESE, SENIOR ADVOCATE FOR R1 & R4 SMT.V.A.GANGUJA FOR R1 & R4 SRI.VIVEK VARGHESE P.J. FOR R1 & R4 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No.934 of 2003 --------------------------------------- Dated this 15th day of October 2009 JUDGMENT The substantial question of law framed for a decision in the second appeal is whether after finding that the suit property belonged to the appellants first appellate court was legally correct in holding that their title is lost by adverse possession and law of limitation reversing the well reasoned judgment of the trial court?. 2. Plaintiffs are before me challenging the verdict of first appellate court reversing judgment and decree of the trial court which allowed recovery of possession of the suit property on the strength of title. Plaintiffs/appellants claimed that a total extent of 5.54 acres of nilam belonged to Thressiamma, wife of Mathew as per sale deed No.3044/1119 M.E and after the death of Thressiamma, her legal heirs including Marathinal Joseph, husband of appellant No.1 and father of appellant Nos.2 and 3 executed Ext.A1, settlement deed No.898 of 1962 as per which E schedule therein was allotted to the share of the said Joseph and others. There was an oral partition between Joseph and others and accordingly the suit property which is 1.50 acres of nilam in survey No.218/1/1 was allotted to the said Joseph. He mortgaged that property to Ouseph Mathan for the sum of Rs.1500/- as per agreement dated 29-07-1962. Though there was an understanding that a deed of mortgage will be executed subsequently, that did not R.S.A.No.934 of 2003 2 happen. Suit property was given in the possession of the mortgagee, Ouseph Mathan. Respondent No.2 was a party to the agreement. Later, Ouseph Mathan sub mortgaged the property to Avirah Devassia (deceased defendant No.1). On the death of Joseph, suit property devolved on the appellants. They wanted the mortgage over the property to be redeemed from Avirah Devassia. Defendant No.1 (Avirah Devassia) contended that he has 6.80 acres and virivu of nilam, the total extent being 9 and odd acres in survey No.217/3 situated within specific boundaries on all sides towards western side of the 5.50 acres in survey No.218/1/1 including the suit property under an oral lease from 1120 M.E onwards and while so, its jenm right was purchased by him as per document No.1139 of 1960 dated 04-08- 1960. It is incorrect to say that the property was sub mortgaged to him. It is not correct to say that there was mortgage of any portion of the property comprised in survey No.217/3 in favour of Ouseph Mathan. Appellants or their predecessors have no right, title or interest in the 6.80 acres and virivu in survey No.217/3. If at all it is found that appellants have any right over the property it is lost by adverse possession of deceased defendant No.1 from 1120M.E on 04- 08-1960 and by the law of limitation. After the death of defendant No.1, respondent No.1 (supplemental defendant No.8) who is one of his legal heirs filed written statement taking up similar contentions. Learned Munsiff framed issues regarding the title claimed by the R.S.A.No.934 of 2003 3 appellants over the suit property and whether title is lost by adverse possession and limitation. Answering issues in favour of the appellants, they were given a decree for recovery of possession of the suit property. Respondent No.1 took up the matter in appeal. Learned District Judge concurred with learned Munsiff on the finding regarding title of appellants but found in favour of respondent No.1 on the plea of adverse possession and limitation. Accordingly the suit was dismissed. Hence the second appeal. 3. Learned counsel for appellants contended that finding of first appellate court regarding adverse possession is misconceived, incorrect and unsustainable in that there is no plea or evidence that deceased defendant No.1 or his legal heirs held the suit property with hostile title against the appellants and their predecessor. Learned counsel contended that to extinguish title under section 27 of the Limitation Act, mere length of possession is not sufficient if it is not accompanied by necessary hostile title to the true owner which according to the learned counsel is conspicuously absent in this case. Reliance is placed on the decisions in Sunny Vs. Amaruddin (2004 (1) KLT SN83 page 63), M. Durai Vs. Muthu and Others (2007 (3) SCC 114), Annakili Vs. A Vedanayagam and Others (2007 (14) SCC 308), Ramzan Vs. Gafooran (2008 (2) KLT SN 68) and Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan (2008 (4) KLT 357 (SC)). Per contra it is argued by learned senior Advocate for R.S.A.No.934 of 2003 4 respondent No.1 that evidence on record justified finding of first appellate court. Even evidence of appellants would show that from 1980 onwards atleast, they have been demanding possession of the suit property which was negatived by the predecessor in interest of respondent No.1. According to the learned senior Advocate requirements to extinguish title under section 27 of the Limitation Act are brought out in this case and placed reliance on the decision of the Supreme Court in P.T.Munichikkanna Reddy and Ors Vs. Revamma and Ors (AIR 2007 SC 1753). 5. So far as title of appellants is concerned, it is contended by learned senior Advocate for respondent No.1 that concurrent finding entered by courts below is not correct. Ext.A1 is the settlement deed executed between Joseph and other legal representatives of Thressiamma, the original owner of 5.54 acres including the suit property. Respondent No.1 has not produced any document to prove title claimed by him. It is true that when the suit is based on title weakness of the case of respondents is no assistance to the appellant who should win or loose on the strength or weakness of their case. Advocate Commissioner inspected the properties with the assistance of Taluk Surveyor who measured the properties with reference to Ext.A1 and the survey plan. Exts.C1 to C3 are the mahazar, report and plan prepared by the advocate commissioner. On measurement of the property it was found that the disputed property, 1.40 acres falls in R.S.A.No.934 of 2003 5 survey No.218/1/1 while the property over which respondent No.1 claimed title and possession is in survey No.217/3 and is situated on its north. Commissioner has identified plot ABCDEF as the suit property. Nothing is brought out to discard Exts.C1 to C3. There is also no contra evidence. Courts below relying Ext.A1 and Exts.C1 to C3 found that appellants have title over the property which I find no reason to interfere being a finding of fact based on evidence. 6. Before going into the issue regarding adverse possession I shall refer to the decision relied on by learned counsel on either side. In Sunny Vs. Amaruddin (2004 (1) KLT SN No. 83) it was held, “One of the important ingredients to claim adverse possession is that the person who claims adverse possession must have set up hostile title to the true owner. A person, merely pleads that he is in possession of the land by a derivative title from a person who had no right over the property, cannot claim adverse possession, unless he pleads that he was holding the property adverse to the real owner and proves the same in evidence. He should also show that the possession animus to the real owner is with the knowledge of the owner.” In M. Durai Vs. Muthu and Others (2007 (3) SCC 114) it is held that when a plea of adverse possession is raised burden is on the person who claims so to prove that title is lost by adverse possession. Reference has been made to the decision in Vasantiben Prahladji R.S.A.No.934 of 2003 6 Nayak Vs. Somnath Muljibhai Nayak (2004 (3) SCC 376) where it was held, “'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus” Reference was also made to the decision in T. Anjanappa Vs. Somalingappa (2006 (7) SCC 570) where it was held, “Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. Trustees, guardians, bailiffs or agents.” In Annakili Vs. A Vedanayagam and Others (2007 (14) SCC 308), reference was made to P.T.Munichikkanna Reddy Vs. Revamma (2007 (6) SCC 59) where it was held, “Therefore it will have to be kept in mind the courts around the world are taking an unkind view towards statutes of limitation overriding property rights” The Allahabad High Court in Ramzan Vs. Gafooran (2008 (2) KLT SN 68 (C.No.82) stated, “Where the defendants were not sure as to who R.S.A.No.934 of 2003 7 was the true owner and question of their being in hostile possession, then the question of denying title of true owner does not arise. At the most, the defendants had claimed and which was found to be correct by the trial court that they had been in possession of the disputed property since the inception of the sale deeds in their favour. They came in possession, according to their showing, as owner of the property in question. It follows that they exercised their right over the disputed property as owner and exercise of such right, by no stretch of imagination, it can be said that they claimed their title adverse to the true owner. Thus the possession of the contesting defendants was not of the variety and degree which was required for adverse possession to materialise” In Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan (2008 (4) KLT 357 (SC)) the Supreme Court held that adverse possession must start with a wrongful disposition of rightful owner and must be actual, visible, exclusive, hostile and continued over the statutory period. Reference was made to Karnataka Board of Wakf Vs. Government of India and Others (2004 (10) SCC 779) where it was held, “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 his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession R.S.A.No.934 of 2003 8 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 his 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 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.” The decision relied on by learned senior Advocate for respondent No.1 (P. T. Munichikkanna Reddy Vs. Revamma (AIR 2007 (SC) 1753)) states, “.... the plaintiffs submit that in any event the plaintiffs have perfected their title by adverse possession as the plaintiffs have been in open, continuous uninterrupted and hostile possession of the plaint schedule land, adversely to the interest of any other person including the defendant for the past over 50 years exercising absolute rights of ownership in respect of the plaint schedule land....... “ In para 5, it is observed, “Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.” R.S.A.No.934 of 2003 9 In para 9 the nature of enquiry required to assess a claim of adverse possession is summarized thus, “.. 1. Application of limitation provision thereby jurisprudentially “willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper owner. 2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.” The argument advanced by learned Senior Advocate for respondent No.1 is that even the evidence of appellants would show that right from 1980 onwards they have been demanding possession of the suit property but that was not complied either by respondent No.1 or his predecessor in interest (deceased defendant No.1) and hence, atleast from 1980 onwards respondent No.1 and his predecessor in interest are in possession of the suit property asserting hostile title against appellants and hence, the suit filed in the year 1992 is barred by limitation. Learned Senior Advocate referred me to the evidence of PW1 who is said to have mediated the alleged mortgage in favour of Ouseph Mathan and the sub mortgage to deceased defendant No.1, predecessor in interest of respondent No.1. It is also the submission of R.S.A.No.934 of 2003 10 learned Senior Advocate that this court has to bear in mind that the courts below have found against the plea of mortgage. 7. I have gone through the evidence of PW1, he claimed to have mediated the alleged mortgage by Joseph, predecessor in interest of appellants in favour of Ouseph Mathan for the sum of Rs.1500/-. An agreement was also executed in which PW1 was a witness. There was an understanding that a deed of mortgage will be executed. Later he heard that the deed of mortgage was executed. When the Ouseph Mathan was in need of money, he sub mortgaged the property to deceased defendant No.1, predecessor in interest of respondent No.1. According to PW1, during 1980 appellants demanded deceased defendant No.1 to redeem the mortgage on receiving the mortgage. In the meantime, deceased defendant No.1 started ploughing of the nilam ('തലചലട ) ' which according to the learned senior Advocate was in derogation of the alleged mortgage. 8. Case of appellants as spoken by PW1 is that the possession of the suit properties was given to Ouseph Mathan and he has been cultivating the same. It is further case that Ouseph Mathan sub mortgaged the property to deceased defendant No.1. The demand for possession in the year 1980 was in the above circumstances, appellants being under the impression that there was a mortgage in favour of Ouseph Mathan and sub mortgage in favour of deceased R.S.A.No.934 of 2003 11 defendant No.1. Therefore, I am unable to understand the said demand made by the appellants as a demand for possession from a person who was asserting hostile title to them. That, the courts below did not uphold the plea of mortgage in the absence of evidence does not mean that at the time appellants made the demand in the year 1980 they were under the impression that the person in possession was asserting hostile title against them. 8. The decisions I have referred above would show that to extinguish title of the true owner and to confer title on the person in possession under section 27 of the Limitation Act on a plea of adverse possession and limitation apart from showing possession for the prescribed period, it is also to be shown that he was holding the property adversely to the interest of the real owner, asserting hostile title to his knowledge. On the other had if the person in possession continued to be so on the strength of the document of title relied by him, question of his being in adverse possession of the property as against the true owner does not arise. The contention raised in para 4 of the written statement is that deceased defendant No.1 is got 6.80 acres and virivu (the total extent being 9 and odd acres) in survey No.217/3 as per oral lease of the year 1120 followed by the assignment of jenm rights on 04-08-1960 and thus, himself, and thereafter respondent No.1 has been and is in possession and enjoyment of the suit property. It is also contended that in the suit R.S.A.No.934 of 2003 12 property appellants or their predecessor had no right, title and interest. Specific contention raised by respondent No.1 and his predecessor is that the 5.54 acres which belonged to Thressiamma, a part of which is the suit property lie towards the southern side of property held by respondent No.1 as above stated. Deceased defendant No.1 and respondent No.1 have no claim of title or possession of any land in survey No.218/1/1. This is asserted by respondent No.1 in his evidence as DW1. He stated that he is entitled to possession of only the property comprised in survey No.217/3 and that he has no claim or objection regarding any property in survey No.218/1/1. He went to the extent of saying that he has no objection in allowing recovery of possession of the land comprised in survey No.218/1/1. According to respondent No.1 (DW1), he is in possession of property on the strength of title and not holding any portion of the disputed property. That contention of respondent No.1 cannot be understood as meaning that he is holding the suit property adverse to the title of the appellants. Contention raised by respondent No.1 and his predecessor in interest and evidence let in by respondent No.1 do not satisfy the requirements laid down by Supreme Court in the decisions referred above to extinguish title of appellants and to confer title on respondent No.1 and his predecessor in interest by adverse possession and the law of limitation. First appellate court held that respondent No.1 is in adverse possession of the property and it is adverse to the whole world R.S.A.No.934 of 2003 13 including the appellants which in the light of the decisions I have referred above and the evidence on record cannot stand. On going through the judgment of first appellate court, I find that it is not in accordance with the principles laid down by the Supreme Court that the first appellate court found that respondent No.1 and his predecessor in interest perfected title by adverse possession and limitation thereby extinguishing the title of the appellants. That finding cannot be sustained. Respondent No.1 was not able to prove that he acquired title over the suit property by adverse possession. As such judgment and decree of the first appellate court cannot sustained and it is liable to be set aside in restoration of the judgment and decree of the trial court. The substantial question of law framed is answered accordingly. Resultantly the second appeal succeed. Judgment and decree of the first appellate court are set aside and that of the trial court are restored. Parties will suffer their respective costs in this appeal. THOMAS P JOSEPH, JUDGE Sbna/