IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 AS.No. 793 of 1994(B) -------------------------- OS.75/1987 of SUB COURT, KASARAGOD .................... APPELLANT(S)/PLAINTIFFS 2 TO 5 ----------------------------------------- 1. MRS. PARVATHI PRABHU, W/O. M.M. PRABHU. 2. M. SHANTHI PRABHU, W/O. M.V. PRABHU. 3. M. NARASIMHA PRABHU, CHILDREN FOR M.V. PRABHU. 4. M. MUKUNDA PRABHU, CHILDREN FOR M.V. PRABHU. ALL ARE RESIDING AT KADRI, NEAR SYNDICATE BANK, KADRI ROAD, REPRESENTED BY POWER OF ATTORNEY HOLDER NO.3. * ADDL. APPELANTS 5 & 6 ARE IMPLEADED 5. K.M. EDDIM MOHAMMAD HAJI, S/O. MOHAMMAD 6. K.M. AYSHA E. MOHAMMAD HAJI NO'S 5 & 6 ARE RESIDING AT “SAMEERA MAHAL” KADAVATH MOGRAL VILLAGE, KASARAGOD TALUK, P.O. MOGRAL. THE ABOVE ADDL. APPELLANTS 5 & 6 ARE IMPLEADED AS ADDL. APPELLANTS ON THE APPEAL VIDE ORDER DATED 11/10/2004 IN I.A. 3259/2004. BY ADVS. SRI.K.G.GOURI SANKAR RAI SRI.BABU PAUL .........2/-... ...2... RESPONDENT(S)/DEFENDANTS 1, 3 & 4. ----------------------------------------------- 1. ABOOBACKER BANGARA, S/O. ABDULRAHIMAN HAJI, RESIDING AT DOOR NO. K.M.C. 21/419, BEACH CROSS ROAD, KASARAGOD, P.O. KASARAGOD - 671 121. 2. J.S. NAGARKAR CHILDREN OF VASUDEVA SHENOY 3. DR. S.S. NAGARKAR, CHILDREN OF VASUDEVA SHENOY NAGARKAR NO.2 IS RESIDING AT NO.406, VIJAYA MANSION, VIJAYA NAGAR, IIND STAGE, BANGALORE - 590 040. NO.3 IS RESIDING AT NEW HOUSING COLONY, KOTTQRQ JUNCTION, ASHOK NAGAR, MANGALORE - 575 006, KARNATAKA STATE. R2 & R3 BY ADV. SRI.U.P.KUNIKULLAYA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/10/2010, ALONG WITH AS NO. 85 OF 1995 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ ORDER ON C.M.P.NO.4901/1994 IN A.S.NO.793/1994. SD/- M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE SVS/ M.N. KRISHNAN, J. ........................................... A.S.NO.793 OF 1994 & A.S.NO.85 OF 1995 ............................................. Dated this the 11th day of October, 2010. J U D G M E N T Both these appeals are preferred against the judgment and decree of the Subordinate Judge, Kasaragod in O.S.No.75/1987. A.S.No.793/1994 is filed by the plaintiffs against the grant of compensation to the first defendant and A.S.No.85/1995 is filed against the decree for recovery of possession granted in favour of the plaintiffs. The brief facts necessary for the disposal of these appeals are stated as follows: 2. The suit is one for recovery of possession on the strength of title with a prayer for mandatory injunction. It is the case of the plaintiffs that the property described in the plaint schedule belonged to the first plaintiff who was in actual cultivation and enjoyment of the property. It is contended that the first defendant in collusion with one Thimma, created an agreement for sale of the property claiming that Thimma is a tenant of the property under the : 2 : A.S.NO.793 OF 1994 & A.S.NO.85 OF 1995 plaintiffs and on the basis of the agreement, moved a suit for injunction and obtained an interim injunction. It was also contended that he was a tenant of the property. The question whether Thimma had tenancy right over the property was adjudicated by virtue of a petition filed under the Kerala Land Reforms Act as well as a reference made by the civil court. The competent tribunal dismissed the claim of tenancy and returned back the file. Nevertheless, the court below granted a decree for injunction in O.S.No.194/1975. Against that judgment and decree, an appeal was preferred by the 1st plaintiff before the Subordinate Judge's Court as A.S.No.66/1979. It reversed the judgment of the trial court and dismissed the suit. Against the same, the first defendant preferred an appeal before this Court as S.A.No.767/1981 and this Court also dismissed the appeal confirming the decision of the appellate court. It is contended that position of the first defendant is that of a trespasser only and therefore the plaintiffs are entitled to recovery of possession. : 3 : A.S.NO.793 OF 1994 & A.S.NO.85 OF 1995 3. The first defendant would contend that by virtue of the sale agreement executed by him and Thimma, he had been put into possession of the property and Thimma had tenancy right over the property and therefore, the plaintiffs are not entitled to decree as prayed for. It is also contended by him that he has been in possession of the property by virtue of the agreement in 1972 and the suit is filed in the year 1987 and therefore, if at all there is any right for the plaintiffs, it is also lost by adverse possession. It is also contended that he is entitled to the value of improvements which he had made in the property. 4. The trial court on consideration of the materials had granted a decree for recovery of possession and permitted the first defendant to demolish the structure and take it away and also awarded a compensation of Rs.50,000/= for the improvements which he had made in the property. Dissatisfied with the recovery of possession and decree, the first defendant has come up in appeal and challenging the order to pay compensation, the plaintiffs : 4 : A.S.NO.793 OF 1994 & A.S.NO.85 OF 1995 have come up in appeal. 5. Heard. At the outset, I may like to state that if the plaintiffs are entitled to recovery of possession on the strength of title and if there is a finding that the possession of the first defendant is not under any legal right, he is not entitled to any value of improvements. If the first defendant is the tenant of the property, then the 1st plaintiff is not entitled to any decree at all. It is in this background one has to analyse. 6. The case of the plaintiffs is that the first plaintiff was in actual possession and enjoyment of the property. It is at that time the first defendant obtained an agreement for sale from one Thimma and a suit is instituted for injunction against the plaintiffs. There was a reference in that case with respect to the tenancy. A competent Tribunal while answering the reference and the separate original application held that neither the first defendant nor Thimma is the tenant of the property. But the trial court on getting back reference in O.S.No.194/1975 granted a : 5 : A.S.NO.793 OF 1994 & A.S.NO.85 OF 1995 decree for injunction in favour of the first defendant who was the plaintiff in that suit. Dissatisfied with the same when an appeal was preferred as A.S.No.66/1979, the Subordinate Judge reversed the decision of the trial court and allowed the appeal and dismissed the suit. This was confirmed by this Court in S.A.No.767/1981. So position of the first defendant had been found against by competent courts of jurisdiction and it has attained finality. Unless the first defendant is able to establish that Thimma has got tenancy right over the property under the plaintiffs, the first defendant will not get any right by virtue of the sale agreement executed by Thimma. The competent courts of jurisdiction and the land tribunal after considering the materials had held that neither the first defendant nor Thimma had any manner of right over the property. So virtually the position of the first defendant is that of a trespasser only. 7. Now the learned counsel for the appellants in A.S.No.793/1994 had brought to my notice a decision of the : 6 : A.S.NO.793 OF 1994 & A.S.NO.85 OF 1995 Division Bench of this Court in A.S.No.231/1998. It was a case where a decree was obtained by the bank against the first defendant. In execution of the decree, the bank proceeded against the properties. One Mohammed Kunhi claimed right over the property under the first defendant and moved execution application for establishing his right over the property as contemplated under Order 21 Rule 101 of C.P.C. The present plaintiffs were also party to the said proceedings. The courts concurrently found that the first defendant in the present suit against whom a decree has been obtained does not have any right over the property and therefore when he has no such right, a transferee claiming under him cannot have any right over the property and therefore dismissed the claim application which has been confirmed by this Court in A.S.NO.231/1998. So, it has to be stated that the first defendant even as per the contention in the other application does not have any existing right over the property. Whatever it maybe, in that case also finding of the court was with respect to the fact that as : 7 : A.S.NO.793 OF 1994 & A.S.NO.85 OF 1995 Thimma did not have any right over the property, the first defendant in the suit also cannot claim any right over the property and therefore, the plaintiffs are entitled to get recovery of possession as they have got title over the property. The learned counsel strongly argued before me that by virtue of the sale agreement in the year 1972, the first defendant had been put in possession of the property. He had made improvements in the property and had constructed structures and therefore his right is protected by adverse possession and limitation. It has to be remembered that from 1975 onwards the contention of the first defendant has been that he is in possession of the property only by virtue of an agreement for sale executed by Thimma who claims to be the tenant under the plaintiffs and therefore it is the the right of the tenant that is claimed by Thimma and the first defendant. In order to claim adverse possession, the principles of nec vi, nec claim and nec precario as stated in Krishnan v. Raman (1986 KLT S.N 104 at page 63) can be looked into. In order to : 8 : A.S.NO.793 OF 1994 & A.S.NO.85 OF 1995 establish the plea of adverse possession, there must be continuous uninterrupted possession by the party as of right without any interference and it must be with hostile animus. So the most important thing to be established in the case of adverse possession is that of hostile animus. To start with, the first defendant has only claimed right as the tenant of the property which is only a permissive possession and that cannot be treated as hostile animus. It is true that in cases where people holding the property under incompetent lease they are entitled to raise plea of adverse possession and limitation. But it has to be specifically pleaded when they claim hostile animus, the reference to the date of period is very material. Hence there are absolutely no pleadings or evidence in that regard and therefore the plea of adverse possession is also to be found against. 8. By virtue of these discussions, I have no hesitation to hold that the first defendant is not entitled to get the claim under adverse possession and limitation also. Since I : 9 : A.S.NO.793 OF 1994 & A.S.NO.85 OF 1995 have found that the 1st plaintiff is having title to the property and that plaintiff's rights are not lost by adverse possession and limitation, the plaintiffs are entitled to decree as prayed for. 9. Now comes the question of compensation. Since the first defendant has constructed a building in the property the court has permitted him to demolish the structure and to take away the materials used which is correct for the reason that the plaintiffs have no role in the construction of that building. But the court below has granted a compensation of Rs.50,000/=. The court below considered that fact under the provisions of Compensation for Tenancy Improvements Act. It only deals with compensation to be given to a person who was in lawful possession of the property. As I stated earlier position of the first defendant has been found to be not lawful. It is only an unlawful possession and it can be described as the possession of a trespasser. When it is so, it goes without saying that the court is not competent to grant relief to : 10 : A.S.NO.793 OF 1994 & A.S.NO.85 OF 1995 such person by awarding of compensation. Therefore that part of the judgment requires interference and it is liable to be set aside. 10. In the result, both these appeals are disposed of as follows: 1. A.S.No.85/1995 is dismissed but without costs. 2. A.S.No.793/1994 is allowed and the judgment and decree directing the plaintiffs to pay compensation of Rs.50,000/= to the first defendant is set aside. The parties are directed to bear their respective costs in the appeal. If parties have settled the matter, I make it very clear that this judgment shall not stand in the way of settlement. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 11 : A.S.NO.793 OF 1994 & A.S.NO.85 OF 1995 M.N. KRISHNAN, J. ........................................... A.S.NO.793 OF 1994 & A.S.NO.85 OF 1995 ............................................. 11th day of October, 2010. J U D G M E N T : 12 : A.S.NO.793 OF 1994 & A.S.NO.85 OF 1995 M.N. KRISHNAN, J. ........................................... A.S.NO.389 OF 2001 ............................................. 8th day of September, 2010. J U D G M E N T