IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 SA.No. 887 of 2001 E -------------------------------------- AS.41/1997 of PRL.S.C.,THALASSERY OS.391/1994 of PRL.M.C.,KANNUR .................... APPELLANT(S): RESPONDENTS 1 TO 6 IN THE LOWER APPELLATE COURT & PLAINTIFFS IN THE TRIAL COURT: ---------------------------------------------------------------------- 1. MADATHIL RUKHIYA, D/O. MOIDEEN, MADATHIL HOUSE, SOUTH BAZAAR, KANNUR -2. 2. MADATHIL SAJID, S/O. ABOOBACKER, DO. DO. 3. SAJINABI, D/O. ABOOBACKER, DO. DO. 4. SHAMEER, S/O. ABOOBACKER, DO. DO. 5. SHAHINA, D/O. ABOOBACKER, DO. DO. 6. RISHAD, S/O. ABOOBACKER, DO. DO. BY ADV. SRI.SATHISH NINAN RESPONDENTS/7TH RESPONDENT & APPELLANT IN THE LOWER APPELLATE COURT AND DEFENDANTS IN THE TRIAL COURT: -------------------------------------------------------------------------------- 1. M. NASSARI, D/O. T.V. ISMAIL HAJEE, KANNOTHUMCHAL, KANNUR II AMSOM, KANNUR KARA & DESOM, KANNUR DISTRICT. 2. T.T. ASHOKAN, S/O. APPU, TRADER, ASHOKA HOTEL, HAJEE ROAD, KANNUR DISTRICT. ADV. SRI.C.KHALID FOR R1 SRI.N.GOPINATHA PANICKER FOR R1 SRI.P.VISWAMBARAN FOR R1 SRI.R.O.MUHAMED SHEMEEM FOR R1 SRI.T.P.SAJID (THALASSERY) FOR R1 S.A. NO.887 OF 2001 E SRI.M.K.SUMOD FOR R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2009 ALONG WITH SA NO. 48 OF 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- S.A.NOS.887/01 E & 48/02 E -------------------------------------- Dated this the 23rd July, 2009 JUDGMENT S.A. No.48 of 2002 arises from the Judgment in A.S. No.94/97 of Sub Court, Thalassery, while S.A. No.887/01 arises from the Judgment in A.S. No.41/97 of the Sub Court, Thalassery. A.S. No.94/97 was filed by the first defendant in OS No.391/94, while A.S. No.41/97 was filed by the second defendant in OS No.391/94. The Suit was filed by the appellants. The Plaint schedule property, according to the appellants, originally belonged to Ovinakath Thavazhi Tharwad. It came to the hands of one Thekkedath Ibrahim as per registered Kuzhikanam Deed No.91/1936 of SRO, Kannur. After his death, it devolved on his legal heirs. It is the case of the appellants that the legal heirs partitioned the property by a Partition Agreement which is produced as Ext.A1 dated 12.11.1962. Item No.4 of the partition deed was allotted to one SA.887/01 & 48/02 2 Shri Madappurayil Aboobacker. The appellants claimed under the said Aboobacker. Plaint B schedule property is stated to be a vacant land and item 2 of the plaint A schedule property. Item 1 of plaint A schedule property is a shop building and item No.2 is the vacant land situated on the eastern side of item 1. It is the appellants' case that the said Aboobacker executed a jenm assignment deed in favour of the appellants who are his wife and children. It is the case that the appellants are enjoying the property without any encumbrance. The first defendant is stated to be the owner of the shop building on the southern side of plaint A schedule property and the second defendant is described as the occupier of the said shop building. The second defendant is also alleged to have occupied the building on the northern side of item No.2 of plaint A schedule property which is also on the northern side of plaint B schedule property. It is stated that there is a pathway on the east of these properties and the building situated on the north and south of plaint B schedule SA.887/01 & 48/02 3 property has a back door on the eastern wall as ingress and egress to the back side of the rooms. It is stated that the second appellant was using the said door as ingress and egress to the buildings. The case of the appellants is that the defendants have trespassed into plaint B schedule property and made some constructions and the first defendant is stated to have closed the back door. It is stated that the first plaintiff has approached the defendants and asked them to demolish the illegal construction made in the plaint B schedule property. On their refusal, a Suit was filed for recovery of possession of plaint B schedule property on the strength of title and mandatory injunction to demolish the illegal construction in the plaint B schedule property. A prohibitory injunction was also sought against trespass into plaint B schedule property. 2. The first defendant's predecessor was one of the parties to Ext.A1 partition deed. He set up a case, inter alia, as follows: SA.887/01 & 48/02 4 Late Ibrahim, who is the grand father of the first defendant, himself entrusted the property to several tenants. There was an oral partition in 1961 and plaint B schedule property along with adjacent property in the possession of the second defendant was allotted to the first defendant's predecessor. Thereafter, a partition deed was executed. It is stated that since the partition, the defendant and her predecessor have been keeping in possession of the property subject to tenancy right of the second defendant. A plea of adverse possession was also set up. 3. The second defendant filed a written statement contending that he is the tenant of the suit property including other buildings, that he and his predecessors have been doing hotel business in the suit property from 1943, paying rent to the landlord including the first defendant. It is further contended that plaint B schedule property along with larger property originally belonged to the first plaintiff's father-in-law, Ibrahim, SA.887/01 & 48/02 5 that there was a Koolichit No.1265/1945 executed by the second defendant's father and he took possession of one room bearing No. 453 from Shri Pathunhi. There was another kachit No.65/51 by which the lease was renewed. It is further stated that the open space behind the building Nos.452 and 453 and the open space of Vazhi Stalam was entrusted to Shri Appu, father of the second defendant by Shri Pathunhi for construction of a hall and Shri Appu constructed a hall and executed another kachit in favour of Shri Pathunhi and the second defendant was in possession. Reliance is placed on the provisions of the Rent Control Act and it was pointed out that the court has no jurisdiction in view of the said provisions. Collusion is alleged against the plaintiffs and first defendant. The trial court proceeded to frame a total of 13 issues. The trial court found that the appellants have title over the plaint schedule property. The title of the appellants was apparently traced in terms of Ext.A1 partition deed. The rival claim of title set up by the first defendant was found against. The trial court proceeded to SA.887/01 & 48/02 6 decree the Suit. In Appeal, the first appellate court found that the trial court was justified in finding that the appellants have title over the property. However, the first appellate court has proceeded to find that the second defendant has right under Ext.B3 and it was also found that the title of the appellants were lost by way of adverse possession and it was accordingly that the appellants came to be non-suited. 4. The substantial questions of law formulated in the Second Appeals are as follows: “A. Did not the lower appellate court erred in not considering Exts.C1 to C4 commission reports and plans and C5 & C6 report and plan prepared by the Asst. Executive Engineer, PWD to find out the period in which the portion of the building encroaching on the plaint B schedule was constructed ? Is it not a case of total non- consideration of material evidence which was available on record ? B. In considering the issue regarding age of construction of the encroached structure should not the lower appellate court have considered SA.887/01 & 48/02 7 Exts.A7 to A10 records in O.S. No.373/93 ? Has not the non-consideration of material evidence resulted in miscarriage of justice ? C. In a suit for recovery on the strength of title, when the title of the plaintiffs is upheld, can the defendant cling on to his possession unless he shows a legal right vests in him to continue possession ? D. Will an encumbrance created by one co- owner affect the rights of another co-owner ? Can Ext.B3 in any manner affect the rights of the plaintiffs ? E. Did not the lower appellate court err in finding that the 2nd defendant is a tenant when there is total absence of plea or evidence regarding a rental arrangement with plaintiffs on their predecessor Aboobacker ?” 5. Shri Sathish Ninan, learned counsel appearing on behalf of the appellants would contend before me that Ext.B3 is purported to be executed by one co-owner and it will not stand in the way of the Suit by the appellants being decreed. He further contended that there is no case of any tenancy set up by SA.887/01 & 48/02 8 the second defendant under the appellants. Once the appellate court confirmed title of the appellants, when it is found that the second defendant was claiming title under the first defendant and it was found that the first defendant had no title at all, the appellate court ought not to have non-suited the appellants, he contends. He would further point out that there is absolutely no basis for finding any adverse possession by the second defendant as there was absolutely no plea of adverse possession set up by the second defendant. He also referred me to the deposition of the second defendant to point out that the second defendant has claimed tenancy under the first defendant and sought to buttress the argument that if the tenancy of the second defendant is found under the first defendant, there is no reason for the Suit to be dismissed, having rejected the claim of title set up by the first defendant. 6. Learned counsel appearing on behalf of the second defendant would refer me to the written statement. He would, no doubt, point out that no specific issue was raised as to SA.887/01 & 48/02 9 whether the second defendant can be treated as a tenant by the trial court and the finding rendered by the first appellate court was without the backing of an issue raised before the trial court. But, he pointed out that the claim of tenancy set up by the second defendant dates back to 1943 and he further emphasised that the plea in his written statement was to the effect that the second defendant was paying rent to the landlord including the first defendant. I heard the learned counsel appearing for the first respondent also. 7. I am of the view that the court below has palpably erred justifying interference under Section 100 in regard to the finding of adverse possession. As far as the first defendant is concerned, while it is true that he did set up a plea of adverse possession, I cannot ignore the fact that the first defendant had set up title in himself. In such circumstances, in the nature of the case, it was not open to the Court to find adverse possession. As far as the second defendant is concerned, he has not set up any plea of adverse possession at all. In such circumstances, I SA.887/01 & 48/02 10 find that the appellants are fully justified in contending that the plea of adverse possession should not have found favour with the first appellate court. 8. That is not the end of the matter, as the appellants stand non-suited also on the ground that the second defendant is a tenant as per Ext.B3. It is not in dispute and in fact the learned counsel appearing on behalf of the second defendant points out that there is no issue even framed as to whether the second defendant is a tenant and if he is a tenant, whether he is a tenant under whom and if it is only under Ext.B1, what is the effect of the same. It is without the aid of any issue that the first appellate court has proceeded to find that the second defendant is a tenant under Ext.B3. In such circumstances, I feel that the Judgment and Decree of the first appellate court cannot be sustained. In such circumstances, I feel that the matter has to be re-considered after framing appropriate issues by the trial court. Accordingly, I allow the Appeals, the Judgment and Decree of the first appellate court are set aside and the matter is remanded SA.887/01 & 48/02 11 back to the trial court. The parties will appear before the trial court on 14.9.2009 and the court will proceed to dispose of the Suit within a period of four months from 14.9.2009. In the nature of the order which I have passed, the parties are directed to bear their respective costs. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge SA.887/01 & 48/02 12 K.M.JOSEPH, J. S.A.NOS.887/01E & 48 OF 02 E JUDGMENT 23rd July, 2009.