IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 SA.No. 220 of 2000(A) --------------------- AS.48/1991 of ADDL.DISTRICT COURT,KOTTAYAM OS.165/1987 of PRL.M.C., KOTTAYAM .................... APPELLANT/APPELLANT/2ND DEFENDANT: -------------- 1. SADANANDAN (DIED) S/O. KITTAN, CHEMPODIL, VELOOR KARA, KOTTAYAM VILLAGE. *ADDITIONAL APPELLANTS 2 TO 4 IMPLEADED. ------------------------------------------------ 2. SUMATHI, AGED 73 YEARS. W/O. LATE SADANANDAN, CHEMPODIYIL HOUSE, VELOOR P.O., KOTTAYAM. 3. SUSHAMA SASIDHARAN, AGED 50 YEARS, PARIPPIKATTIL HOUSE, ANJILITHANAM P.O., KAVIYOOR, THIRUVALLA, PATHANAMTHITTA. 4. SAJI C.S., S/O. LATE SADANANDAN, CHEMPODIYIL HOUSE, VALOOR P.O., KAVIYOOR, THIRUVALLA, PATHANAMTHITTA. BY ADVS. SRI.K.JAGADEESCHANDRAN NAIR SRI. J. KRISHNA KUMAR *ADDL. APPELLANTS 2 TO 4 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED SOLE APPELLANT AS PER THE ORDER DATED 25-06-2009 IN IA NO.1290/2009 RESPONDENTS: ---------------------- 1. SURENDRAN, (DIED) S/O. GOVINDAN, PANDIRUPARAYIL, PARIPPU KARA, AYMANAM VILLAGE (1ST PLAINTIFF) 2. LALAMMA, W/O. SURENDRAN, PANDIRUPARAYIL, PARIPPU KARA, AYMANAM VILLAGE (2ND PLAINTIFF) SA.No. 220 of 2000(A) -2- 3. SARASAMMA, W/O. NATARAJAN, RESIDING AT PUCHIKKARIYIL, KARAPUZHA KARA, KOTTAYAM VILLAGE (ADDL. 3RD DEFENDANT) **ADDITIONAL RESPONDENTS 4 & 5 IMPLEADED. ------------------------------------------------ 4. SINI SURENDRAN, AGED 42 YEARS, S/O. LATE SURENDRAN, PANDIRUPARAYIL PANDIRUPARAYIL, PARIPPU KARA, AYMANAM VILLAGE 5. SANU SURENDRAN, AGED 39 YEARS, S/O. LATE SURENDRAN, PANDIRUPARAYIL PANDIRUPARAYIL, PARIPPU KARA, AYMANAM VILLAGE. R2 BY ADV. SRI.MATHEW JOHN **LEGAL HEIRS OF DECEASED RESPONDENT NO.1 ARE IMPLEADED AS ADDL. RESPONDENTS 4 AND 5 AS PER THE ORDER DATED 18-07-2011 IN IA NO.1292/2009 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMG P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - S.A.No.220 of 2000-A - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of August , 2011 J U D G M E N T The second defendant in OS.165/1987 is the appellant. The parties and facts are hereinafter referred to as they are arrayed before the trial court. 2. The plaintiffs claimed title to the plaint schedule property by virtue of Ext.A1 deed dated 09.05.1973. It was claimed that mutation was effected and tax has been paid. According to them, the defendants wanted to purchase the property from the plaintiffs and fraudulently obtained the documents from them. Thereafter they have trespassed into the suit property and reduced it into their possession. The plaintiff alleged that the defendants have no manner of right over the suit property and therefore they had laid a suit for the necessary reliefs. 3. The defendants resisted the suit. They disputed that the plaintiffs had subsisting title to or possession over the suit property. According to them, property given to the :2: S.A.No.220 of 2000-A plaintiffs was agreed to be sold at the time of marriage of the second plaintiff for a sum of Rs.4,000/-. The first defendant is alleged to have purchased the property by paying a sum of Rs.4,000/- through one Ramankutty. Payment is said to have been made in two installments of Rs.1000 and Rs.3,000/- respectively. However the first defendant did not have sufficient funds for registration etc, and no sale deed was not executed. They also pointed out that they have made considerable improvements in the property and that the plaintiff had no subsisting title or possession over the suit property. It is also pointed out that, in case it is found that the property is recoverable, entitled to value of improvements quantified to Rs.40,000/- . On the basis of these contentions they prayed for the dismissal of the suit. 4. On the above pleadings issues were raised in the trial court. 5. The evidence consists of the testimony of PW1 to 3 :3: S.A.No.220 of 2000-A and Exts marked Exts.A1 to A3 marked from the side of the plaintiff. The defendants had DW1 to 4 examined and Exts.B1 to B4 marked. During the pendency of the suit the first defendant died and his legal heirs were brought on the party array as additional 3rd defendant. 6. The court below on consideration of the evidence found, that the sale put forward by the defendants is without any merits, and that they have no right over the suit property. It was also found that they were not entitled to value of improvements. Since the plaintiff had failed to establish the quantum of improvements the prayer for mesne profits was declined and suit was decreed. 7. Disappointed second defendant carried the matter in appeal as AS.48/1991 before the District Court, Kottayam. The lower appellate court after independent evaluation of the evidence concurred with trial court and dismissed the appeal. That brings the second defendant before this Court. :4: S.A.No.220 of 2000-A 8. Notice is seen issued on the following questions of law:- 1. Will a Gift deed be evidence of title without any evidence of acceptance? 2. Whether the evidence of possession of original title deed, payment of land tax and possession of the property will not be sufficient to establish adverse possession? 3. What is the status of a person in possession of land who has paid the entire consideration but has failed to get the sale deed executed in his favour? 4. Can a decree for recovery of possession be granted against him. 5. Is he not entitled to the value of improvements effected bonafide as well as for return of the consideration paid with reasonable interest? 9. The learned counsel appearing for the appellant pointed out that the courts below were not justified in not finding, at any rate that the contesting defendants had perfected title by adverse possession and limitation. They ought to have seen that the appellant and his predecessor in interest has been in continuous possession from 1970 onwards and suit was brought only in 1987. The lower courts were not justified in not applying the law of adverse :5: S.A.No.220 of 2000-A possession and limitation. Accordingly it is contended that the judgment and decree are clearly unsustainable in law. 10. The arguments based on the law of adverse possession and limitation is without any basis whatsoever. The title of the plaintiff is conceded. The defendants relied on an oral sale between them and the plaintiffs. Total sale consideration according to the defendants was Rs.4000/- and according to them it had been paid and the first defendant had entitled the possession of the property. Further explanation was as the first defendant did not have sufficient funds for registration of sale deed etc and the sale deed was not executed. Both the courts below have found that the claim of sale and also the payment of the consideration are not true. The evidence of DW1 lacked credence and was contrary to the pleadings in the written statement. The defendants claimed to be come into possession by virtue of a sale. It is admitted by the defendants that it was due to the lack of funds for :6: S.A.No.220 of 2000-A registration etc that sale deed was not executed. As there is no sale deed no right passes on to the defendants. But that does not make the possession adverse to the right of plaintiff. Both courts below have found that at no point of time the defendants claimed the right adverse to the interest of the plaintiffs. Both the courts below had independently evaluated the evidence and found that the defendants have no manner of right over suit property. It must be remembered that title of plaintiff was admitted. Thereafter it is for the defendants to show a better title. The findings of the court below are essentially on facts and do not suffer from any illegality or irregularity. As regards the claim of value of improvements is concerned the defendants do not fall within the ambit of Section 51 of Transfer of Property Act. Moreover there is no evidence to show that they had effected any improvements. In the light of the evidence furnished by DW1, the lower appellate court rightly thought that the :7: S.A.No.220 of 2000-A plaintiff ought to have been granted mesne profits and accordingly modified the decree in his favour to that extent granting Rs.500/-P.A. The findings entered by the court below are based on the appreciation of the evidence. It is not shown that the courts below have either erred in law or on facts in arriving the respective conclusions. The result is that this appeal is without any merits and is liable to be dismissed. I do so, however there will be no order as to costs. P.BHAVADASAN JUDGE kkj